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Agencies Issue Proposed Regulations on Mental Health Parity Implementation

by | Aug 3, 2023 |

HHS, DOL and IRS (collectively, the “Agencies”) have jointly issued proposed regulations to provide guidance on the implementation of the requirements of the Mental Health Parity and Addiction Equity Act of 2008 (the “MHPAEA”).

Background.  The MHPAEA requires that the financial requirements and treatment limitations imposed on mental health or substance use disorder (“MH/SUD”) benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to all medical/surgical benefits in a classification.  (The six classifications of benefits defined in previous rules implementing the requirements of the MHPAEA are: (1) inpatient, in-network; (2) inpatient, out-of-network; (3) outpatient, in-network; (4) outpatient, out-of-network; (5) emergency care; and (6) prescription drugs.)  Treatment limitations may be quantitative treatment limitations (i.e., numerical limits) or non-quantitative treatment limitations (“NQTLs”), such as preauthorization requirements.

With regard to NQTLs, the MHPAEA says that a group health plan or health insurance issuer may not impose a NQTL with respect to MH/SUD benefits in any classification unless, under the terms of the plan (or health insurance coverage) as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in the classification are comparable to, and are applied no more stringently than,  the processes, strategies, evidentiary standards, or other factors used in applying the limitation to medical/surgical benefits in the same classification.

MHPAEA also imposes certain disclosure requirements on group health plans and health insurance issuers

Proposal.  The new proposed regulations would:

  • Clarify that the MHPAEA requires individuals to be able to access their MH/SUD benefits in the same manner as medical/surgical benefits.
  • Provide specific examples to clarify: (1) that plans and issuers cannot use more restrictive prior authorization or other medical management techniques for MH/SUD benefits; (2) the standards related to network composition for mental health and substance use disorder benefits; and (3) the factors to determine out-of-network reimbursement rates for mental health and substance use disorder providers.
  • Require plans and issuers to collect and evaluate outcome data and take action to address material differences in access to MH/SUD benefits as compared to medical/surgical benefits, with a specific focus on ensuring that there are no material differences in access as a result of the application of their network composition standards.
  • Codify the requirement that plans and issuers conduct meaningful comparative analyses to measure the impact of NQTLs.  This includes evaluating standards related to network composition, out-of-network reimbursement rates, and prior authorization NQTLs.

Because of the complexity and expected controversy regarding these proposed regulations, the Agencies have stated that they “will carefully consider feedback received before establishing the type, form, and manner of the data collection and evaluation that would be required under the proposed rules, if finalized, and any specific standards for the potential enforcement safe harbor in future guidance.”  The Agencies also solicited comments on whether there are ways to improve the coverage of mental health and substance use disorder benefits through other provisions of federal law.

The proposed regulations are available at: