On September 23, 2024, the Department of Labor, Department of Treasury and Department of Health and Human Services (hereinafter referred to as “the Departments”) published final rules titled “Requirements Related to the Mental Health Parity and Addiction Equity Act (MHPAEA).” These final rules follow and adopt modified versions of the MHPAEA proposed rules that were released on July 25, 2023¹, which introduced new requirements and comparative analysis rules surrounding Non-Quantitative Treatment Limitations (NQTLs) as established under the Consolidated Appropriations Act, 2021 (CAA, 2021). Through these final rules, 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 final rules is contained below.

History of MHPAEA

On October 3, 2008, as part of the Emergency Economic Stabilization Act of 2008, MHPAEA became law. This law was intended to create parity/equality between MH/SUD benefits and M/S benefits. Later, final rules were issued on November 13, 2013, implementing MHPAEA². These 2013 final rules created six classifications of benefits when comparing parity between MH/SUD benefits and M/S benefits:

1. Inpatient, in-network
2. Inpatient, out-of-network
3. Outpatient, in-network
4. Outpatient, out-of-network
5. Emergency care
6. Prescription drugs

The 2013 final rules also provided that the parity in benefits requirements apply not only to the financial requirements (e.g., copayments, deductibles) and the numerically expressed quantitative treatment limitations (QTLs) (e.g., maximum number of visits to a doctor) but also to the non-quantitative treatment limitations (NQTLs) (e.g., nonnumerical requirements of a health plan such as prior authorization requirements, step therapy and provider admission requirements) within a health plan. On December 27, 2020, the CAA 2021 amended MHPAEA, expressly requiring group health plans and insurers to document and perform a comparative analysis of NQTLs under the plan 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 MHPAEA. Proposed rules, with the same title as these final rules (i.e., Requirements Related to the Mental Health Parity and Addiction Equity Act), were released by the Departments on July 25, 2023, and reference to those proposed rules is made throughout this article.

Purpose and Definition of Terms

Originally, the Departments proposed to adopt a preamble to the MHPAEA statute that acts as a “fundamental purpose” statement to provide an overarching set of “guiding principles” for health plans and issuers to follow under the law. The final rules adopted this concept but slightly modified this section to remove the words “generally comparable” from the proposed rule’s language.³ The intent in removing these words in the final rules was to preserve the intent under the law to compare the financial requirements, QTLs and NQTLs imposed on MH/SUD benefits and M/S benefits in only six benefit classifications, rather than a “generally comparable” standard.⁴

Adoption of Certain Definitions Related to the Terms Medical/Surgical Benefits, Mental Health Benefits and Substance Use Disorder Benefits

Independent Medical Standards

Regarding the terms “medical/surgical benefits,” “mental health benefits,” and “substance use disorder benefits,” the final rules mostly adopted the proposed rules. The final rules state that the plan/coverage must define the conditions/ procedures related to these terms in a  manner that is consistent with the “generally recognized independent standards of current medical practice” (e.g., the most current version of the International Classification of Diseases (ICD) or APA Diagnostic and Statistical Manual of Mental Disorders (DSM)). In situations in which these conditions/procedures are not addressed within these generally recognized independent standards, the final rules state that a plan/issuer may define such condition/procedure under applicable Federal or State⁵ law, but only to the extent that those rules align with generally recognized independent medical standards (to ensure that when state/Federal law conflicts with independent medical standards, the medical standards related to such condition/procedure would govern whether such condition/procedure falls into the proper category of comparison).

Must Include All Disorders regarding Substance Use Disorders

The final rules also state that a plan’s definition of SUD benefits must include all disorders that are included within any of the diagnostic categories listed as a mental or behavioral health disorder due to psychoactive substance use (or equivalent category) in the mental, behavioral and neurodevelopmental disorders chapter (or equivalent chapter) of the most current version of the ICD⁶ or that are listed in the most current version of the DSM⁷.”

When a Specific Item or Service may apply to both Medical/Surgical and Mental Health/Substance Use Disorder Benefits

The final rules do not adopt a bright line rule regarding specific items or services that may contain both M/S benefits and MH/SUD benefits. The final rules only state that a plan must correctly characterize items and services in these three categories in a way that is consistent based on the condition/disorder being treated and in a manner that is consistent with the general purpose of MHPAEA, which requires parity between the MH/SUD benefits and the M/S benefits under a health plan.

The preamble to the final rules states that if a plan/coverage “defines a condition or disorder as a mental health condition or substance use disorder, plans and issuers…must treat all benefits for the condition or disorder as mental health benefits or substance use disorder benefits…for purposes of compliance with MHPAEA.”

Specific Conditions Considered Mental Health Conditions

Due to many comments from stakeholders asking for clarity on specific conditions and if they would be considered mental health conditions,  the Departments addressed these comments in the preamble by stating that if a health plan provides coverage for benefits related to eating disorders (including anorexia nervosa, bulimia nervosa and binge-eating disorder), autism spectrum disorder (ASD) and gender dysphoria, that these would be considered mental health conditions and therefore subject to the protections under MHPAEA.

¹ 2023-15945.pdf (govinfo.gov)
² 26 CFR 54.9812-1, 29 CFR 2590.712, and 45 CFR 146.136
³ § 2590.712 Parity in mental health and substance use disorder benefits
⁴ The six benefit classifications include inpatient, in-network; inpatient, out-of-network; outpatient, in-network; outpatient, out-of-network; emergency care and prescription drugs
⁵ Originally, under the proposed rules, State law definitions could not be used by a plan/insurer. The final rules do allow State law definitions to be used by the plan/insurer, so long as it is consistent with generally recognized independent medical standards.
⁶ “Specifically, under these final rules, the most current version of the ICD as of November 22, 2024, the effective date of these final rules, is the International Classification of Diseases, 10th Revision, Clinical Modification adopted for the period beginning on October 1, 2015, through HHS regulations at 45 CFR 162.1002 (or successor regulations). Any subsequent version of the ICD adopted through 45 CFR 162.1002 (or successor regulations) after November 22, 2024, will be considered the most current version beginning on the first day of the plan year that is one year after the date the subsequent version is adopted.”
“The Departments are also finalizing the definition of “DSM” as proposed, with similar clarifications, which note that the most current version as of November 22, 2024, the effective date of these final rules, is the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.
⁷ A subsequent version of the DSM published after November 22, 2024, will be considered the most current version beginning on the first day of the plan year that is one year after the date the subsequent version is published (as the DSM is published, rather than made applicable). Consistent with this clarification, if a new version of the DSM is published in the middle of a plan year, plans and issuers will have at least one full year before they are required to use the updated version with respect to a plan year. For example, if a new version of the DSM is published on August 1, 2025, for a calendar year plan, that version of the DSM would be the most current version with respect to the plan year beginning on January 1, 2027.”

Regulatory and Legislative Strategy Group