MHPAEA Proposed Rules

August 30, 2023

Tri-Agencies Release MHPAEA Proposed Rules, a Technical Release, and a Second Annual MHPAEA Report to Congress

On July 25, 2023, the U.S. Departments of Health and Human Services, Labor and Treasury issued Mental Health Parity and Addiction Equity Act (MHPAEA) proposed regulations and a Technical Release that seek to increase patient access and coverage for mental health and substance use disorder (MH / SUD) services, in parity with medical and surgical (M / S) services. The Departments also released the second annual MHPAEA Report to Congress.

Proposed Rules

In 2020, Congress amended the MHPAEA of 2008, requiring employer group health plans and plan issuers to complete a comparative analysis that demonstrated whether a plan’s non-quantitative treatment limitations (NQTLs), such as medical necessity criteria, prior authorization standards, network adequacy, and other standards, apply more stringently to MH / SUD care than as applied to M / S care.

The newly introduced proposed regulations build on the previous requirements and share additional guidance on what is to be included in the NQTL comparative analyses. If finalized, the proposed regulations would require plans to study patient outcomes, provider network adequacy, out-of-network provider reimbursement rates, and prior authorization guidelines and denial rates.

Consistent with legislation enacted by Congress last year, the proposed rules also confirm that NQTL comparative analyses are required of self-funded, non-Federal governmental health plans, such as local and state government plans.

Technical Release

The Technical Release 2023-01P is a useful companion to the proposed regulations and identifies four specific types of data to include in the analyses to evaluate mental health / substance use disorder providers in comparison to medical / surgical providers:

  • Out-of-network utilization
  • Percentage of in-network providers actively submitting claims
  • Time and distance standards
  • Reimbursement rates

The release requests public feedback no later than October 2, 2023, on the proposed type, form and manner of data collection, and evaluation requirements regarding a plan’s network and an enforcement safe harbor for plans and issuers that submit the requested data.

Second Annual MHPAEA Comparative Analysis Report to Congress

The federal departments released the second MHPAEA Comparative Analysis Report to Congress, and the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) and Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) issued a joint fact sheet on MHPAEA enforcement results for cases closed in fiscal year 2022. The annual report provided information on the Departments’ NQTL findings and the information lacking within the comparative analyses. The report also identifies plans and issuers that failed to comply with MHPAEA applicable requirements.

Many audited comparative analyses remained deficient, even after multiple insufficiency letters. EBSA issued 138 insufficiency letters for over 290 NQTLs and CMS issued 15 initial determination letters finding MHPAEA violations related to 15 NQTLs.

However, the Departments also experienced promising results from some plans. EBSA reported that 104 plans and issuers agreed to make prospective changes to their plans, addressing 71 unique NQTLs. These changes affected access to MH / SUD benefits for over 4 million participants and their beneficiaries across over 39,000 plans. One insurer made a widespread correction to remove an exclusion of applied behavior analysis (ABA) therapy for treatment of autism spectrum disorder (ASD), affecting approximately 1,000 plans covering over 1 million participants.

The Proposed Rules, Technical Release, the report to Congress, and the accompanying Enforcement Fact Sheet can be found here.

Next Steps

The DOL and CMS will continue to audit plans for MH / SUD parity with M / S services and have increased their staffing and education of auditors. A plan’s NQTL comparative analysis should be completed and readily available to share with these entities quickly, if requested.

Plans should work with a variety of entities to complete the analysis, such as their own legal Counsel, the PBM, network(s), utilization review vendor, Employee Assistance Program (EAP) vendor, and perhaps a third-party consultant to provide an independent MHPAEA assessment and recommendations for plan design changes. The collaboration between such partners can help ensure a comprehensive and accurate NQTL analysis that demonstrates compliance with MHPAEA.

WebTPA can support your data requests as you are reviewing your plan designs, or if you are audited by the DOL, we can assist you by providing claims and plan utilization data based on what is requested. If you would like to make any changes to your mental health and substance use benefits, please let us know and we can get these updates incorporated into your plan structure for your upcoming renewal.