By Tulay Turan, J.D.
Plans and issuers should make sure that comparative analyses meet specific evidentiary standards.
The Departments of Labor (DOL), HHS, and the Treasury (Departments) have jointly issued frequently asked questions (FAQ) on amendments made by the Consolidated Appropriations Act, 2021 (CAA), to the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The CAA requires group health plans and health insurance issuers offering group or individual health insurance coverage that offer both medical/surgical benefits and mental health or substance use disorder (MH/SUD) benefits and that impose non-quantitative treatment limitations (NQTL) on MH/SUD benefits to perform and document their comparative analyses of the design and application of NQTLs.
Analyses should be ready now. The FAQs indicate that plans and issuers that offer both medical/surgical benefits and MH/SUD benefits and impose NQTLs must make their comparative analyses of the design and application of NQTLs available to the Departments or applicable state authorities upon request, beginning 45 days after the date of enactment of the CAA. Because the CAA was enacted on December 27, 2020, the requirement applies beginning February 10, 2021. Accordingly, plans and issuers should now be prepared to make their comparative analyses available upon request.
The FAQs also note that for plans subject to ERISA, plans and issuers must make the comparative analyses and other applicable information required by the CAA available to participants, beneficiaries, and enrollees upon request.
Information required. Plans and issuers should ensure that comparative analyses are sufficiently specific, detailed, and reasoned to demonstrate whether the processes, strategies, evidentiary standards, or other factors used in developing and applying an NQTL are comparable and applied no more stringently to MH/SUD benefits than to medical/surgical benefits. To that end, a general statement of compliance, coupled with a conclusory reference to broadly stated processes, strategies, evidentiary standards, or other factors is insufficient to meet this statutory requirement. At a minimum, sufficient analyses must include a robust discussion of the following elements:
- A clear description of the specific NQTL, plan terms, and policies at issue.
- dentification of the specific MH/SUD and medical/surgical benefits to which the NQTL applies within each benefit classification, and a clear statement as to which benefits identified are treated as MH/SUD and which are treated as medical/surgical.
- Identification of any factors, evidentiary standards or sources, or strategies or processes considered in the design or application of the NQTL and in determining which benefits, including both MH/SUD benefits and medical/surgical benefits, are subject to the NQTL. Analyses should explain whether any factors were given more weight than others and the reason(s) for doing so, including an evaluation of any specific data used in the determination.
- To the extent the plan or issuer defines any of the factors, evidentiary standards, strategies, or processes in a quantitative manner, it must include the precise definitions used and any supporting sources.
- The analyses, as documented, should explain whether there is any variation in the application of a guideline or standard used by the plan or issuer between MH/SUD and medical/surgical benefits and, if so, describe the process and factors used for establishing that variation.
- If the application of the NQTL turns on specific decisions in administration of the benefits, the plan or issuer should identify the nature of the decisions, the decision maker(s), the timing of the decisions, and the qualifications of the decision maker(s).
- If the plan’s or issuer’s analyses rely upon any experts, the analyses, as documented, should include an assessment of each expert’s qualifications and the extent to which the plan or issuer ultimately relied upon each expert’s evaluations in setting recommendations regarding both MH/SUD and medical/surgical benefits.
- A reasoned discussion of the plan’s or issuer’s findings and conclusions as to the comparability of the processes, strategies, evidentiary standards, factors, and sources identified above within each affected classification, and their relative stringency, both as applied and as written. This discussion should include citations to any specific evidence considered and any results of analyses indicating that the plan or coverage is or is not in compliance with MHPAEA.
- The date of the analyses and the name, title, and position of the person or persons who performed or participated in the comparative analyses.
Types of documents. As specified by the CAA, plans and issuers should be prepared to make available documents that support the analysis and conclusions of their NQTL comparative analyses, including any documents and other information relevant to the factors used to determine the application of an NQTL and the evidentiary standards used to define the factors identified. In its most recent update of the MHPAEA Self-Compliance Tool, DOL highlighted the following types of documents and relevant information that a plan or issuer should have available to support its NQTL comparative analyses.
- Records documenting NQTL processes and detailing how the NQTLs are being applied to both medical/surgical and MH/SUD benefits to ensure the plan or issuer can demonstrate compliance with the law, including any materials that may have been prepared for compliance with any applicable reporting requirements under state law.
- Any documentation, including any guidelines, claims processing policies and procedures, or other standards that the plan or issuer has relied upon to determine that the NQTLs apply no more stringently to MH/SUD benefits than to medical/surgical benefits. Plans and issuers should include any available details as to how the standards were applied, and any internal testing, review, or analysis done by the plan or issuer to support its rationale.
- Samples of covered and denied MH/SUD and medical/surgical benefit claims.
- Documents related to MHPAEA compliance with respect to service providers (if a plan delegates management of some or all MH/SUD benefits to another entity).
If the Departments conclude a plan or issuer has not provided sufficient information to review the comparative analyses, the CAA provides that the Departments shall specify to the plan or issuer the information the plan or issuer must submit to be responsive to the request.
Enforcement focus. The FAQs indicate that in the near term, the DOL expects to focus on the following NQTLs in its enforcement efforts: (1) prior authorization requirements for in-network and out-of-network inpatient services; (2) concurrent review for in-network and out-of-network inpatient and outpatient services; (3) standards for provider admission to participate in a network, including reimbursement rates; and (4) out-of-network reimbursement rates (plan methods for determining usual, customary, and reasonable charges).
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