Is Your Plan in Compliance with Mental Health and Substance Abuse Parity Requirements?

Employers sponsoring group health plans have been living with mental health parity requirements for more than 20 years. This article will address what’s new. But first, a little history may be helpful to put that new parity guidance into context.

The Mental Health Parity Act of 1996 (MHPA) required that a lifetime maximum benefit or an annual benefit limit for mental health services could not be less than those for medical/surgical benefits; however, it was permissible at that time to limit the number of covered inpatient days for mental health treatment, or limit the number of outpatient mental health visits. The MHPA did not address substance abuse (either alcohol or drugs) at all.

On October 3, 2008, President Bush signed the Emergency Economic Stabilization Act, which included the Mental Health Parity and Addiction Equity Act (MHPAEA). This legislation, also known as the Paul Wellstone-Pete Dominici Act for the two US Senators that authored it, expanded the MHPA by:

  • Including substance abuse;
  • Requiring parity not only for mental health and substance abuse in benefit limits but also in employee cost-sharing provisions, including coinsurance, deductibles, and copays;
  • Prohibiting the practice of requiring members to first exhaust their employee assistance plan (EAP) services before they could access the health plan’s mental health/substance abuse benefits; and
  • Introduced non-quantitative treatment limits (NQTLs), meaning the health plan could not apply more stringent medical management techniques (such as precertification, concurrent or retrospective review, or case management) or prescription drug formularies to mental health/substance abuse benefits than to medical/surgical benefits.

For calendar year plans, the MHPAEA took effect on January 1, 2010. Later in 2010, the Patient Protection and Affordable Care Act (PPACA) amended the MHPAEA to ensure essential health benefits, which were defined to include mental health, substance abuse and behavioral health treatment, did not have annual or lifetime dollar limits.

In 2013, the DOL, HHS, and Treasury issued final MHPAEA regulations, which took effect January 1, 2015, for calendar year plans.

In December 2016, the 21st Century Cures Act was passed to further strengthen the MHPAEA by providing disclosure of “methods, processes, strategies, evidentiary standards, and other factors” that plans and insurers could use in developing and applying NQTLs, including:

  • Standards on medical necessity or definitions of experimental/investigational services
  • Limits of prescription drug formulary or step therapy policies
  • Network admission standards
  • Provider reimbursement methods
  • Sources of information that may serve as evidentiary standards for purposes of making NQTL-related decisions

Then in June 2017, the DOL/HHS/Treasury issued additional guidance indicating mental health benefits include the treatment of eating disorders.

That brings us to April 23, 2018 when the DOL, HHS, and Treasury issued additional guidance in the form of FAQs to seek feedback (to be provided by June 22, 2018), on proposed MHPAEA disclosure requirements and the application of NQTLs. A self-compliance tool is included in the new guidance, along with a template plan participants can use to request information about the criteria used in determining medical necessity of mental health/substance abuse services or the reasons for a denial of benefits for such services. The guidance makes it clear that the employer must disclose this information within 30 days or incur a penalty (in the form of a nondeductible excise tax) of $100 per day.

The FAQ outlines several situations where the plan’s NQTL may disqualify the plan because the treatment of mental health or substance abuse issues may be stricter than for medical-surgical matters. Employers need to take this seriously because penalties for noncompliance with the MHPAEA can be $100 per member per day.

Findley recommends self-funded employers with more than 50 employees take the following steps:

  1. Revisit the MHPAEA and become familiar with its requirements, including:
    • If mental health (MH)/substance use disorder (SUD) benefits are included in the employer’s health plan, then, as described by CMS’ Center for Consumer Information & Insurance Oversight, “the financial requirements and treatment limitations that apply to MH/SUD benefits cannot be more restrictive than the predominant requirements and limitations that apply to substantially all the medical/surgical benefits.”
      • The substantially all/predominant tests apply separately to six classifications of benefits:
      • Inpatient in-network
      • Inpatient out of-network
      • Outpatient in-network
      • Outpatient out-of-network
      • Emergency
      • Prescription drug
    • The MHPAEA regulations distinguish between quantitative treatment limitations (such as numerical visit limits) and nonquantitative treatment limitations or NQTLs (such as medical and prescription drug management techniques). CMS further indicates the employer’s health plan cannot impose NQTLs for MH/SUD benefits that are more stringent than those for medical/surgical benefits.
  2. Discuss with your medical claims administrator how your health plan’s utilization management and chronic condition management provisions work, including what criteria is used in making any decisions on medical necessity or appropriateness. Determine if there are any differences in handling MH/SUD cases compared to medical/surgical matters. If there are any such items, take corrective action to ensure parity.
  3. Confirm with your medical claims administrator whether it will respond, on your behalf, to any participant’s request for information about the criteria used in making utilization decisions for MH/SUD services.
  4. Discuss with your pharmacy benefits manager (PBM) how it applies medical necessity provisions as well as step therapy and prior authorization procedures. If these protocols are different for MH/SUD cases than for medical/surgical matters, then make changes necessary to achieve parity.
  5. Confirm with your PBM whether they will respond, on your behalf, to any participant’s request for information about the criteria used in making utilization decisions for MH/SUD services.
  6. Review with your medical provider network manager whether the provider credentialing or reimbursement methods differ between medical/surgical providers and those rendering MH/SUD services. If there are differences, discuss what remedies are appropriate. Be sure to address how participating providers are listed in the directories—both print and online to ensure information on open practices and terminations are handled the same for all providers.
  7. Review with your PBM how Rx formularies are developed, updated, and communicated to ensure there are no differences between the drugs used to treat MH/SUD than the drugs used for other medical matters.
  8. If behavioral health services have been outsourced to an EAP provider or managed behavioral health organization (MBHO), review with the EAP/MBHO whether treatment limitations or protocols for mental health are different than for SUD. If there are any differences, discuss whether they can or should be equalized.

For assistance in determining whether your health plan’s NQTLs are in compliance with the MHPAEA or if you would like to learn more, please contact Bruce Davis, Managing Consultant,, 419.327.4133.

Posted May 23, 2018

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Category: Findley Perspective, Health and Group Benefits