New Federal Rules Seek To Strengthen Mental Health Parity

On July 25, 2023, the Departments of Labor, Health and Human Services, and the Treasury (the tri-agencies) proposed a new rule to strengthen the enforcement of the federal Mental Health Parity and Addiction Equity Act (MHPAEA) and make sure that sufferers can entry psychological well being and substance use dysfunction (MHSUD) providers as simply as they’ll entry medical/surgical providers.

Alongside the proposed rule, the federal authorities additionally issued a technical launch looking for suggestions on new knowledge necessities associated to supplier networks, the second annual MHPAEA comparative evaluation report to Congress (as required below federal legislation), and a joint reality sheet issued by the Employee Benefits Security Administration (EBSA) and the Centers for Medicare and Medicaid Services (CMS) on MHPAEA enforcement in Fiscal Year (FY) 2022.

This proposed rule offers some a lot wanted readability to insurers which have struggled to adjust to sure facets of MHPAEA up to now whereas additionally strengthening the oversight instruments obtainable to regulators. If finalized, the brand new necessities will go into impact on January 1, 2025, for group well being plans, and on January 1, 2026, for particular person well being plans.

What Is MHPAEA And How Is It Enforced?

In 2008, Congress enacted the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act in response to public concern over well being insurers inserting greater obstacles to accessing MHSUD providers than medical/surgical providers. The legislation, as initially enacted, required all group well being plans to make sure that the monetary necessities and remedy limitations being utilized to MHSUD providers aren’t any extra restrictive than these relevant to medical/surgical providers. In 2010, the Affordable Care Act (ACA) prolonged these necessities to particular person well being plans as nicely, equivalent to those offered within the ACA Marketplace.

The federal authorities and state departments of insurance coverage share the duty of imposing MHPAEA throughout the plans they regulate. The EBSA, below the Department of Labor, enforces the legislation with respect to self-funded giant group plans, equivalent to many non-public employer-sponsored plans. State departments of insurance coverage in all however three states implement MHPAEA with respect to plans offered by insurers licensed within the state, equivalent to those offered on ACA Marketplaces. CMS is chargeable for imposing MHPAEA within the three states the place the state departments of insurance coverage don’t implement the legislation—Missouri, Texas, Wyoming—in addition to public-employer-sponsored plans, equivalent to plans provided to state and native authorities workers.

In 2013, the tri-agencies issued rules implementing MHPAEA, which state that parity necessities apply to monetary necessities, equivalent to deductibles and value sharing; quantitative remedy limitations, equivalent to day or go to limitations; and nonquantitative remedy limitations (NQTLs), equivalent to prior authorization necessities, requirements for supplier admission to take part in networks, and methodologies used to find out supplier reimbursement charges.

With respect to monetary necessities and quantitative remedy limitations, the tri-agencies established a mathematical take a look at that insurers can use to verify if they’re compliant with MHPAEA’s rule. Subsequently, a parity job power convened by the federal authorities in 2016 famous important progress in attaining parity with respect to monetary necessities and quantitative remedy limitations.

However, on the subject of NQTLs, state regulators and insurers have struggled to make sure parity. One main motive for that is that the usual for assessing compliance with respect to NQTLs is extra subjective. The rules require insurers to make sure that any elements used to impose an NQTL, equivalent to a previous authorization requirement, on MHSUD advantages are similar to and no extra stringently utilized than the elements used to use that NQTL to medical/surgical advantages.

Since the preliminary guidelines implementing MHPAEA went into impact in 2013, the tri-agencies have issued a number of items of steering—together with “15 sets of FAQs with 96 questions, eight enforcement fact sheets, six compliance assistance tools and templates,” and extra—to additional make clear the necessities below MHPAEA, particularly for NQTLs. Despite this, confusion has endured amongst each insurers and state regulators.

To additional help regulators in imposing the NQTL normal, below the Consolidated Appropriations Act of 2021, Congress required all well being plans and insurers imposing NQTLs on MHSUD advantages to carry out “comparative analyses” evaluating the design and software of NQTLs to MHSUD and medical/surgical advantages. Plans and insurers are required to make these comparative evaluation paperwork obtainable to all related regulators upon request. The legislation units sure requirements for what these paperwork ought to embody, equivalent to elements utilized in figuring out when the NQTL applies to MHSUD and medical/surgical advantages, the evidentiary requirements these elements depend on, and an evaluation demonstrating how the requirements and elements are comparable throughout MHSUD and medical/surgical advantages.

Unfortunately, within the first yr of implementing this new legislation, federal regulators discovered that not one of the comparative analyses they’d requested from insurers met the necessities below the legislation. State regulators additionally reported combating insurer submissions.

What Is The Administration Proposing In This New Rule?

Through the brand new proposed rule, the tri-agencies fill sure gaps within the requirements governing MHPAEA whereas offering extra specificity and readability over how to make sure parity with respect to NQTLs.

First, the tri-agencies change how MHSUD and medical/surgical providers are outlined. More particularly, they make clear that consuming problems and autism spectrum problems are thought of psychological well being circumstances and guarded below MHPAEA.

Second, the proposed rule codifies the requirement, enacted by the Consolidated Appropriations Act of 2021, that insurers carry out and doc comparative analyses for all NQTLs imposed on MHSUD providers. The rule units forth very detailed necessities for the content material of every comparative evaluation, in addition to the method for making comparative analyses obtainable to related regulators and beneficiaries upon request. Under the proposed rule, failure to supply a adequate comparative evaluation may consequence within the tri-agencies prohibiting the plan from imposing the NQTL in query till the insurer can display compliance with MHPAEA or treatment the violation.

Third, the tri-agencies set up a brand new, extra prescriptive normal for evaluating whether or not an NQTL complies with MHPAEA. The new normal prohibits the applying of an NQTL to MHSUD advantages until the insurer can show that it satisfies three necessities:

• No extra restrictive requirement: The tri-agencies suggest establishing a mathematical take a look at, just like the one presently in place for monetary necessities and quantitative remedy limitations to make sure that an NQTL is not any extra restrictive as utilized to MHSUD providers than to medical/surgical providers.
• Design and software requirement: Through their comparative analyses, insurers will probably be required to doc the method, technique, evidentiary normal, and different elements used within the design and software of every NQTL to an MHSUD profit and to display how they’re similar to these utilized in designing and making use of that NQTL to a medical/surgical profit. In conducting this evaluation, the tri-agencies suggest prohibiting insurers from utilizing biased historic knowledge, equivalent to low charges paid to MHSUD suppliers at a time when MHPAEA was not in impact or the insurer was in violation of MHPAEA.
• Outcomes knowledge requirement: To guarantee parity in observe and never simply in written coverage, the tri-agency proposes requiring insurers to gather and consider related outcomes knowledge (for instance, quantity and share of related claims denials), determine if there are any materials variations between entry to MHSUD and medical/surgical advantages, and treatment any materials variations recognized. The evaluation of the outcomes knowledge is predicted to be a part of the insurer’s comparative evaluation.

When an insurer impartially applies impartial skilled medical or scientific requirements to create an NQTL, according to usually accepted requirements of care with out imposing further or totally different necessities, the tri-agencies suggest routinely contemplating the NQTL to be compliant with MHPAEA while not having it to satisfy the above necessities.

The tri-agencies are additionally looking for touch upon different matters associated to MHSUD entry, such because the remedy of telehealth in assessing parity, how supplier listing necessities can enhance MHSUD entry, and methods to incentivize third-party directors who administer many employer-sponsored well being plans to adjust to MHPAEA.

Special Rule For The Network Composition NQTL

In the proposed rule, the tri-agencies particularly name consideration to the remedy of supplier community composition as an NQTL. While recognizing that community composition is intently tied to and depending on different NQTLs, equivalent to supplier community admission requirements, strategies for figuring out reimbursement charges, and credentialing requirements, the tri-agencies suggest treating community composition as its personal NQTL. To assess the outcomes related to community composition, below the proposed guidelines, insurers can be required to gather knowledge together with, however not restricted to, in- and out-of-network utilization charges, community adequacy metrics (time and distance knowledge, variety of suppliers accepting new sufferers), and supplier reimbursement charges. If an evaluation of the info reveals a cloth distinction between accessing in-network MHSUD and medical/surgical providers, the insurer can be required to take affordable actions to treatment this disparity. However, recognizing the truth of MHSUD supplier shortages, the tri-agencies suggest an enforcement protected harbor for insurers that may display that the fabric variations exist due to supplier shortages and regardless of their affordable efforts to increase their MHSUD supplier networks.

In the technical launch issued alongside the proposed rule, the tri-agencies present additional element on the particular rule for assessing community composition as an NQTL. The tri-agencies are looking for detailed suggestions from stakeholders on numerous components of the proposed particular rule in addition to basic feedback on points with implementing the rule, such because the challenges insurers would face in offering the required knowledge, what different knowledge components the tri-agencies ought to ask insurers to supply, and the way the tri-agencies ought to account for supplier scarcity areas and closely consolidated supplier markets. These feedback are due by October 2, 2023.*

What Does The Latest Enforcement Report Show?

Under the Consolidated Appropriations Act of 2021, the tri-agencies are required to submit annual stories to Congress on their evaluation of NQTL comparative evaluation paperwork. On July 25, 2023, the tri-agencies launched the second annual report. This annual report finds that between February 2021 and July 2022, the EBSA issued 182 letters requesting comparative analyses for 450 NQTLs throughout 102 investigations. Analyses had been most often requested for prior authorization, exclusion of utilized behavioral evaluation remedy, and community admission requirements. Between February 2021 and September 2022, CMS issued 26 letters requesting comparative analyses from 24 plans and issuers. Analyses had been most often requested for prior authorization and concurrent evaluation.

Both departments discovered that a good portion—virtually 50 % of comparative analyses reviewed by the EBSA and virtually 80 % of these reviewed by CMS—had been poor, as in they didn’t embody every little thing a comparative evaluation is meant to incorporate. The departments additionally issued a number of preliminary determinations of substantive MHPAEA violations, however they word that the majority plans and insurers had responded to those preliminary determinations by offering and implementing corrective motion plans. Together, the 2 companies issued solely eight remaining determinations discovering a substantive violation of MHPAEA.

In addition to the above report, the EBSA and CMS additionally problem annual enforcement reality sheets reviewing their MHPAEA enforcement actions for every year. These reality sheets embody investigations associated to not simply NQTLs but in addition monetary necessities and quantitative remedy limitations, and solely embody details about investigations concluded in a given yr. In FY 2022, the EBSA and CMS investigated MHPAEA violations associated to annual greenback limitations, combination lifetime greenback limitations, monetary necessities, and quantitative and non-quantitative remedy limitations. The EBSA cited 18 violations, 10 of which had been NQTL violations, and CMS cited 7 violations, all of which had been NQTL violations.

Looking Forward

Although MHPAEA has been in impact for greater than a decade now, regulators imposing the legislation have typically struggled to slim the numerous gaps in entry between MHSUD and medical/surgical advantages. One main driver of this has been the lack of regulators to successfully oversee insurer compliance with respect to NQTLs, particularly community composition-related NQTLs. This proposed rule makes the NQTL normal extra prescriptive and incorporates outcomes knowledge, and if finalized, these guidelines would symbolize a major step ahead in MHPAEA enforcement.

*Editor’s Note

The deadline for feedback on the proposed rule was prolonged to October 17, 2023.

Maanasa Kona, “New Federal Rules Seek To Strengthen Mental Health Parity,” Health Affairs Forefront, September 5, 2023, https://www.healthaffairs.org/content/forefront/new-federal-rules-seek-strengthen-mental-health-parity. Copyright © 2023 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.