CMS Insurance Standards Bulletin Series—Information (June 7, 2023)
Available at https://www.cms.gov/files/document/hipaa-opt-out-bulletin.pdf
HHS’s Centers for Medicare & Medicaid Services (CMS) has issued guidance addressing legislative provisions that eliminated the ability of self-insured non-federal governmental health plans to opt out of complying with the Mental Health Parity and Addiction Equity Act (MHPAEA). The Consolidated Appropriations Act, 2023, provided that new MHPAEA opt-out elections may not be made on or after December 29, 2022, and that elections expiring 180 or more days after that date may not be renewed (see our Checkpoint article).
The guidance confirms that elections expiring on or after June 27, 2023, may not be renewed but explains a special rule for certain collectively bargained plans: A self-insured, non-federal governmental plan that is subject to multiple collective bargaining agreements (CBAs) of varying lengths and that has an MHPAEA opt-out election that was in effect on December 29, 2022, and expires on or after June 27, 2023, may extend the election until the last CBA expires. The guidance details the process for obtaining the extension, including providing CMS with documentation of the effective date and term of existing CBAs, receiving CMS approval, and then submitting a renewal opt-out election to extend the plan’s existing election. The guidance also reminds plans that CMS may pursue enforcement action, including potential imposition of civil money penalties, against non-federal governmental plans that do not comply with MHPAEA requirements.
EBIA Comment: Plans wishing to retain the MHPAEA opt-out for the duration of existing CBAs will want to carefully study this guidance to ensure that proper procedures are followed. After current elections expire, self-insured non-federal governmental plans may only opt out of three group health plan mandates: standards related to newborns and mothers, reconstructive surgery following mastectomies, and Michelle’s Law (now obsolete for most plans due to the Affordable Care Act’s requirement to cover dependent children to age 26). For more information, see EBIA’s Group Health Plan Mandates manual at Sections IV.F (“Governmental Employers”) and IX.A (“What Is Mental Health Parity and Who Must Comply?”), and EBIA’s Self-Insured Health Plans manual at Section III.D.3 (“Plans Sponsored by Certain Governmental Entities”).
Contributing Editors: EBIA Staff.
