Recent Mental Health Parity Guidance — A Good Reminder to Review Your Health Plan for Compliance

The Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”) generally requires that the financial requirements and treatment limitations that apply to mental health and substance use disorder (“MH/SUD”) benefits cannot be more restrictive than the financial requirements and treatment limitations that apply to medical and surgical (“M/S”) benefits.  Financial requirements include, for example, deductibles and coinsurance.  Treatment limitations can be quantitative (e.g., limits on the number of days or visits covered under the plan) or non-quantitative (“NQTL”) (e.g., requiring participants to obtain prior authorization before treatment).

The MHPAEA and its implementing regulations also require plan administrators to provide various disclosures upon request regarding MH/SUD benefits.  For example, a plan must provide: (1) criteria for medical necessity determinations made with respect to MH/SUD benefits to current or potential participants, beneficiaries, or contracting providers, (2) the reason for any denial under a group health plan of reimbursement or payment for services with respect to MH/SUD benefits to participants or beneficiaries, and (3) information about the processes, strategies, evidentiary standards, and other factors used to apply a NQTL with respect to M/S benefits and MH/SUD benefits under the plan to participants.

On October 27, 2016, the Departments of Labor (“DOL”), Health and Human Services (“HHS”), and Treasury (collectively “the Departments”) issued ACA Implementation FAQs Part 34 in which they solicited feedback regarding MH/SUD benefits under the MHPAEA and other laws.  The feedback included requests for model forms for individuals to use to request relevant MHPAEA disclosures, as well as guidance to simplify the disclosures and disclosure request process.

On December 13, 2016, the 21^st Century Cures Act (the “Cures Act”), was enacted.  This law, in relevant part, requires the Departments to solicit feedback from the public regarding how to improve the MHPAEA disclosure request process, and requires the Departments to make the feedback publicly available by December 13, 2017.  The Cures Act also requires that if a health plan or health insurance issuer covers eating disorder benefits, it must provide the benefits consistent with the requirements of the MHPAEA.

In response, on June 16, 2017, the Departments released ACA Implementation FAQs Part 38, a Paperwork Reduction Act Notice, and a Draft Model Form, and solicited comments.  The model form could be used by participants, enrollees, or their authorized representatives, to request relevant MHPAEA disclosures.    FAQs Part 38 also clarified, consistent with the Cures Act, that eating disorders are a mental health condition and therefore treatment of an eating disorder is a “mental health benefit” under the MHPAEA.  Comments to FAQs Part 38 are due by September 13, 2017.

The MHPAEA is a highly technical law and will likely come up during the course of a DOL Health and Welfare Plan Investigation.  Therefore this recent guidance may provide an impetus for employers to review their medical plans for compliance in time for the upcoming open enrollment season.