Warning Signs—Plan or Policy Non-Quantitative Treatment Limitations (NQTLs) that Require Additional Analysis to Determine Mental Health Parity Compliance
The DOL has provided guidance on health plan provisions that, absent similar restrictions on medical or surgical benefits, may constitute impermissible limitations on mental health or substance use disorder benefits under the federal mental health parity rules. As background, the Mental Health Parity Act (MHPA) and the Mental Health Parity and Addiction Equity Act (MHPAEA) require parity between medical or surgical benefits and mental health or substance use disorder benefits in the application of annual and lifetime dollar limits, financial requirements (such as deductibles, copayments, coinsurance, and out-of-pocket maximums), and quantitative treatment limitations (such as number of treatments, visits, or days of coverage). Plans also must comply with parity-related requirements for nonquantitative treatment limitations (such as restrictions based on facility type) unless an exemption applies. Here are some of the plan provisions that the DOL has flagged as requiring careful analysis:
Preauthorization and Pre-Service Notification Requirements. Provisions requiring scrutiny include blanket preauthorization requirements for mental health or substance use disorder benefits, preauthorization requirements for admission to certain treatment facilities (e.g., a precertification requirement for mental health inpatient treatment), and medical necessity review or prescription drug preauthorization provisions.
Fail-First, Probability of Improvement, and Patient Noncompliance Provisions. Questionable provisions in this category include those that impose progress or treatment attempt requirements on substance use disorder benefits (e.g., a requirement that a patient attempt two forms of outpatient treatment before inpatient substance use disorder treatment is available). The DOL also highlights provisions that require a likelihood of improvement (e.g., coverage of substance use disorder services only if they result in measurable improvement within 90 days), and those that exclude services if the patient fails to comply with the treatment plan (e.g., exclusion of benefits if the patient ends treatment for chemical dependency against medical advice).
Written Treatment Plan. The DOL lists several provisions that require submission of a treatment plan for mental health or substance use disorder benefits (e.g., a requirement that an individualized treatment plan be submitted and updated every six months).
Residential, Geographical, and Licensure Requirements. Red flags are raised by provisions that limit residential treatment, impose geographical limitations on where treatment may be provided, or require certain licensure of facilities where these requirements are not also imposed on medical and surgical benefits.
EBIA Comment: This guidance provides a useful checklist of provisions that may be problematic under the mental health parity rules, but it is not intended to be an exhaustive listing. And while the provisions described do not automatically violate the nonquantitative treatment limitation requirements, the DOL reminds plans and insurers that they must be prepared to provide evidence to substantiate parity compliance. For more information, see EBIA’s Group Health Plan Mandates manual at Section IX.E (“Mental Health Parity: Nonquantitative Treatment Limitations”).
Contributing Editors: EBIA Staff.