On July 25, 2023, the DOL, Treasury and HHS (hereinafter referred to as “the Departments”) released proposed regulations titled “Requirements Related to the Mental Health Parity and Addiction Equity Act.” These proposed rules seek to amend current rules related to the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) by introducing new requirements surrounding Non-Quantitative Treatment Limitations (NQTLs). Through these proposed regulations, the Departments seek to provide more clearly defined standards to ensure that health plan sponsors, insurance carriers and other stakeholders do not apply more stringent limits on access to mental health (MH) and substance use disorder (SUD) benefits as compared to medical/surgical (M/S) benefits within a health plan or policy. More information regarding these proposed regulations is contained below. Currently, the Departments are open to receiving comments from the public/stakeholders on the below topics.

Background and Enforcement

History of the MHPAEA

On October 3, 2008, as part of the Emergency Economic Stabilization Act of 2008, the MHPAEA became law. This law was intended to create parity/equality between MH/ SUD benefits and M/S benefits. Later, final regulations were issued on November 13, 2013, implementing the MHPAEA. These final regulations created six classifications of benefits when comparing parity between MH/SUD benefits and M/S benefits. These categories include (1) inpatient, in-network; (2) inpatient, out-of-network; (3) outpatient, in-network; (4) outpatient, out-of-network; (5) emergency care; and (6) prescription drugs.

The 2013 final regulations also provided that the parity in benefits requirements apply not only to the financial requirements within a health plan (e.g., copayments, deductibles, numerically expressed quantitative treatment limitations) but also to the non-quantitative treatment limitations (NQTLs) (e.g., non-numerical requirements such as prior authorization requirements, step therapy, provider admission requirements, etc). On December 27, 2020, the Consolidated Appropriations Act of 2021 amended the MHPAEA, expressly requiring group health plans and insurers to document and perform an NQTL analysis to determine whether a plan’s design and application of NQTLs are more stringent on MH/SUD benefits as compared to M/S benefits. The Departments have released multiple sets of Frequently Asked Questions (FAQs), fact sheets, compliance assistance tools, templates, reports and publications since the inception of the MHPAEA.

DOL and CMS Enforcement Priorities

The federal Department of Labor (DOL) and the Centers for Medicare & Medicaid Services (CMS) are the enforcement agencies responsible for ensuring compliance under private employer-sponsored group health plans, non-federal governmental health plans and even some insurance carriers. The DOL and CMS listed certain priority areas on which they plan to focus in a July 2023 Congressional Report.

DOL Enforcement Priorities

The DOL provided the following as their six enforcement priority areas, which include both past priorities contained in a previous Congressional Report and new priorities contained in the current July 2023 Congressional Report:

1. Plan requirements for prior authorizations related to innetwork and out-of-network inpatient services;
2. Concurrent care review for in-network and out-ofnetwork inpatient and outpatient services;
3. Provider admission standards to participate in a network, including reimbursement rates;
4. Reimbursement rates for out-of-network services (i.e., methods for determining the reasonableness and what is usual and customary within the industry);
5. Prohibited exclusions for key treatments for mental health conditions and substance use disorders (updated since the previous January 2022 Congressional Report); and
6. Standards for network adequacy for MH/SUD provider networks (updated since the previous January 2022 Congressional Report).

Since January 2022, the DOL has focused on reviewing plan reimbursement rates and whether plans systematically and regularly review the network adequacy of provider networks offered under the plan.

CMS Enforcement Priorities

CMS also included its three enforcement priorities within the July 2023 Congressional Report:

1. Prior authorizations as a treatment limitation that apply in the context of inpatient/in-network, inpatient/out-ofnetwork, outpatient/in-network and outpatient/out-ofnetwork benefit classifications.
2. Concurrent review treatment limitations for outpatient/ in-network and outpatient/out-of-network benefit classifications.
3. Specific treatment exclusions for certain health conditions as they relate to certain prescription drug classifications, which is an updated priority since the January 2022 Congressional Report.

Regulatory and Legislative Strategy Group