FAQs About Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act Part 39
The DOL, HHS, and IRS have finalized FAQs providing guidance on the disclosure and nonquantitative treatment limitation (NQTL) requirements of the Mental Health Parity and Addiction Equity Act (MHPAEA), including a model disclosure request form. Following the issuance of proposed FAQs and other guidance in 2018 (see our Checkpoint article), the agencies solicited written comments and held roundtable discussions with stakeholders. The final FAQs and disclosure form include clarifications based on input received, but are not significantly changed from the proposed version. Here are highlights:
NQTLs. Group health plans and insurers may not impose NQTLs on mental health or substance use disorder benefits unless the factors used in applying the limitations are comparable to, and applied no more stringently than, the factors used in applying the limitations to medical/surgical benefits in the same classification. Eight FAQs discuss how to evaluate the factors used to develop and apply certain NQTLs, including exclusions of experimental or investigative treatments, dosage limits for prescription medications, step therapy and fail-first policies, network provider credentialing and reimbursement rates, and restrictions based on facility type. The FAQs emphasize that facially neutral NQTLs may still violate the mental health parity requirements if they are applied differently in operation. And one FAQ notes that, while the MHPAEA permits plans to exclude coverage for specific mental health conditions, other federal and state laws may limit such exclusions.
Disclosure. The parity regulations require plan administrators and insurers to disclose to participants, beneficiaries, and contracting providers the criteria for medical necessity determinations and the reasons for denial of reimbursement or payment of mental health or substance use disorder benefits. The FAQs remind plan administrators of the importance of also including information specific to mental health and substance use disorder benefits in SPDs and SBCs. Two FAQs address the disclosure of provider networks, emphasizing that provider directories must be kept up-to-date and may in some circumstances be provided electronically by means of a hyperlink or URL address.
Model Disclosure Form. Individuals or their authorized representatives may use the model disclosure form to request information affecting their mental health or substance use disorder benefits. The model form may be used for general requests for information regarding benefits and treatment limitations (such as a request for the relevant portions of the SPD or plan document) or to obtain documentation after an adverse benefit determination to support an appeal. The FAQs suggest that making the model disclosure form available may help streamline requests for information but confirm that use of the form is optional.
EBIA Comment: According to the FAQs, the agencies intend to provide additional mental health parity implementation information on a rolling basis, including revised compliance program documents and updated enforcement. In keeping with that promise, the DOL has issued a report on its enforcement activities for fiscal year 2018, which will be covered in next week’s EBIA Weekly. For more information, see EBIA’s Group Health Plan Mandates manual at Sections IX.E (“Mental Health Parity: Nonquantitative Treatment Limitations”), IX.G (“Disclosure of Criteria for Medical Necessity Determinations, Claims Denials, and Other Document Requests”), and IX.J (“Mental Health Parity: Enforcement”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.E (“Coverage Limitations and Exclusions”) and EBIA’s ERISA Compliance manual at Section XXIV.G (“Electronic Disclosure of SPDs and Other ERISA-Required Documents”).
Contributing Editors: EBIA Staff.