Deadline for filing comments is Tuesday, Oct. 17, 2023.*

On July 25, 2023, the Departments of Labor and Health and Human Services released a proposed rule intended to strengthen enforcement of the 2008 Mental Health Parity and Addiction Equity Act (MHPAEA) and improve patients’ ability to access care for mental health and substance use disorders (MH/SUD). At the same time, the agencies also released a Technical Release (.pdf), seeking feedback on data requirements related to network composition and a possible enforcement safe harbor; a second Report to Congress (.pdf), as required by law; and a Fact Sheet summarizing enforcement efforts during 2022.

The proposed rule is a big win for the behavioral health community because it will finally close loopholes in MHPAEA that insurance companies routinely use to deny care for mental health conditions and substance use disorders. The proposed rule clarifies and strengthens requirements related to the analysis of Non-Quantitative Treatment Limitations (NQTLs), an area where parity violations continue to persist. If finalized, the new rule is expected to take effect on Jan. 1, 2025, for group health plans and on Jan. 1, 2026 for individual health plans.

Key Provisions of the Proposed Rule

The proposed rule:

• Clarifies that the purpose of MHPAEA is to ensure plan participants can access their MH/SUD benefits in parity with their medical/surgical benefits.
• Requires plan/issuers to provide meaningful MH/SUD benefits. Under the proposed rule, if a plan provides treatment for a specific condition in one benefit classification (e.g., inpatient/in-network, inpatient/out-of-network, outpatient/in-network, outpatient/out-of-network, prescription drugs, and emergency care), it must provide for treatment in all six benefit classifications. For example, if a plan covers treatment for autism (e.g., ABA therapy) on an outpatient/in-network basis, the plan must also provide the autism benefit in the other five benefit classifications.
• Clarifies that eating disorders and autism spectrum disorder are considered mental health conditions and protected under MHPAEA.
• Requires plans/issuers to collect, evaluate, and consider the impact of various outcome data (e.g., claim denial rates) and take “reasonable action” to address “material differences” in accessing MH/SUD benefits compared to medical/surgical benefits and document this action in the NQTL comparative analysis. This includes evaluating their actual provider networks, how much they pay out-of-network providers, how often prior authorization is required, and the rate at which prior authorizations are denied. “Material difference” is not defined in the proposal.
• Requires plans to collect and analyze data on the outcomes of their NQTLs and address material differences in access between mental and other medical benefits.
• Requires plans to demonstrate, with a corrective action plan, that they have made necessary changes to ensure compliance with MHPAEA if the analyses show they’re failing to meet the parity law’s requirements and to document those actions in their comparative analyses.
• Provides an exception to the requirements for NQTLs if the plan/issuer “applies a nonquantitative treatment limitation that impartially applies independent professional medical or clinical standards or applies standards to detect or prevent and prove fraud, waste, and abuse.”
• Proposes an enforcement safe harbor for plans/issuers that can demonstrate that the material differences in access exist because of provider shortages and despite their reasonable efforts to expand their MH/SUD provider networks. Details defining the safe harbor and its application are not contained in the proposed rule.
• Requires NQTL comparative analyses to include a certification by one or more named fiduciaries who have reviewed the analysis, stating they found it to be in compliance with the proposed rule’s content requirements.

APA’s Comments

APA fully supports the proposed rule’s focus on improving access and strengthening requirements for comparative analyses, including collecting and analyzing outcomes data. APA will be submitting comments concerning the following.

• While APA supports efforts to encourage the use of medical necessity standards and efforts to combat fraud, waste and abuse, we are concerned that the proposed exceptions to the requirements for NQTLs could undermine MHPAEA’s protections. We have urged the departments to either omit the exceptions or provide more details and clarity about how they would apply.
• While APA supports the departments recognizing a plan/issuer’s failure to provide a sufficient comparative analysis violates MHPAEA, we urge them to clarify that upon a final determination of noncompliance, the departments shall direct the plan or issuer to not impose the NQTL that is subject of the comparative analysis.
• While APA supports the departments recognizing that if plans/issuers provide benefits within any classification, those benefits must be “meaningful.” We are urging the departments to recognize that for people experiencing serious mental illness or early psychosis, meaningful benefits include access to coordinated care, supported education and supported employment, benefits that plans/issuers frequently do not cover.

Next Steps: Submitting Comments

APA will be submitting comments and we encourage all APA members to submit comments too (comments can be brief).

We ask that you let the departments know that you support the new requirements for health plans to ensure that they have adequate mental health care provider networks and create new standards for federal regulators to measure access to mental health care services. You are welcome to use some of the language above. We also ask that you share your experiences with your patients accessing mental health and substance use care in recent years.

Sharing your comments electronically is simple. Just go to the proposed rule and click on the green “Submit a Formal Comment” button. You can either paste your comments directly in the text box or upload a comment letter. In commenting, please refer to file code 1210–AC11.

Deadline for filing comments is Tuesday, Oct. 17, 2023.

If you have questions, please reach out to APA at [email protected].

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*The comment period was extended from Oct. 2 to Oct .17.