Agency FAQs Address Mental Health Parity Comparative Analysis Requirements

The Consolidated Appropriations Act, 2021 (see our Checkpoint article) amended the Mental Health Parity and Addiction Equity Act (MHPAEA) to require group health plans and insurers that provide both medical/surgical benefits and mental health or substance use disorder (MH/SUD) benefits—and that impose nonquantitative treatment limitations (NQTLs) on MH/SUD benefits—to perform and document a comparative analysis of each NQTL’s design and application. As of February 10, 2021, comparative analyses and other specified information must be made available to applicable federal or state agencies upon request. The DOL, HHS, and IRS have jointly issued FAQs elaborating on this new compliance obligation. Here are highlights:

• Comparative Analysis. Q/As-2 and -3 explain that the comparative analysis for each NQTL must be sufficiently detailed and reasoned to demonstrate whether the processes, strategies, evidentiary standards, or other factors used in developing and applying the NQTL are comparable and applied no more stringently to MH/SUD benefits than to medical/surgical benefits. At a minimum, the analysis must include a “robust discussion” of nine specific elements listed in Q/A-2. Conclusory or generalized statements without specific supporting evidence and detailed explanations are insufficient, as are productions of a large volume of documents without a clear explanation of how each document is relevant. Q/A-2 observes that plans that have carefully applied the guidance in the MHPAEA Self-Compliance Tool (see our Checkpoint article) should be in a strong position to submit comparative analyses upon request.
• Supporting Information. Q/A-4 describes documents and relevant information that should be furnished in support of a comparative analysis and notes that the necessary supporting information will vary depending on the type of NQTL and the processes, strategies, evidentiary standards, and other factors used by the plan. Listed examples of supporting documentation include claims processing policies and procedures; samples of covered and denied MH/SUD and medical/surgical benefit claims; and documents related to MHPAEA compliance by service providers.
• Noncompliance. Q/A-5 explains that if the agencies’ review of a plan’s comparative analyses results in a determination that the plan is not in compliance with MHPAEA, the plan will have 45 days in which to take corrective action and submit additional analyses. If the plan is again determined to be noncompliant, the plan must notify all enrolled individuals within seven days. In addition, the agencies will share findings of compliance and noncompliance with applicable state officials.
• Participant Access. Consistent with prior guidance (see our Checkpoint article), Q/A-6 states that ERISA plan participants are entitled to receive a plan’s comparative analyses and supporting information upon request. In addition, with respect to non-grandfathered plans, claimants may request the analyses in conjunction with an appeal of an adverse benefit determination.
• Agency Guidance and Areas of Focus. According to Q/A-7, the agencies have issued these FAQs to address discrete issues in light of the expedited compliance timeframe and will “engage with stakeholders” to determine what additional guidance may be needed. Q/A-8 lists four specific NQTLs on which the agencies intend to focus their enforcement in the near term—(1) prior authorization requirements for in-network and out-of-network inpatient services; (2) concurrent review for in-network and out-of-network inpatient and outpatient services; (3) standards for provider admission to a network, including reimbursement rates; and (4) out-of-network reimbursement rates, including plan methods for determining usual, customary, and reasonable charges. Q/A-8 emphasizes that an initial focus on the four specified NQTLs does not limit the agencies’ authority to request or review different or additional NQTL analyses and that plans should perform and document analyses for all NQTLs imposed.

EBIA Comment: The MHPAEA’s comparative analysis requirements have been in effect for two months, and the FAQs reinforce the agencies’ commitment to their enforcement. Plan sponsors and insurers imposing NQTLs on MH/SUD benefits will want to study the FAQs carefully to become familiar with the extensive information that must be included in each comparative analysis. The FAQs make clear that performing and documenting the analyses—and being ready to provide them upon request—will require diligence and advance preparation. The Self-Compliance Tool is a valuable resource. For more information, see EBIA’s Group Health Plan Mandates manual at Sections IX.E (“Mental Health Parity: Nonquantitative Treatment Limitations”) and IX.H (“Mental Health Parity Reporting Requirements”).

Contributing Editors: EBIA Staff.