By Pension and Benefits Editorial Staff
The Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (Departments) have issued frequently asked questions (FAQs) regarding implementation of the Mental Health Parity and Addiction Equity Act (MHPAEA). These FAQs finalize and clarify proposed FAQs, issued on April 23, 2018, which had addressed an array of issues, including experimental treatments, dosage limits, step therapy, reimbursement rates and disclosure requirements.
In conjunction with the FAQs, the Departments also issued a final MHPAEA Disclosure Template, which is available at https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/mhpaea-disclosure-template.pdf.
Background. In general, MHPAEA requires that the financial requirements (such as coinsurance and copays) and treatment limitations (such as visit limits) imposed on mental health or substance use disorder (MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical/surgical benefits in a classification.
With regard to any nonquantitative treatment limitation (NQTL), the MHPAEA final regulations provide that a group health plan or health insurance issuer may not impose an NQTL with respect to MH/SUD benefits in any classification unless, under the terms of the plan (or health insurance coverage) as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in the classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation to medical/surgical benefits in the same classification. MHPAEA also imposes certain disclosure requirements on group health plans and health insurance issuers.
Experimental treatment. The FAQs address whether it is permissible for a plan to exclude coverage for Applied Behavioral Analysis (ABA) therapy to treat children with Autism Spectrum Disorder under the rationale that the treatment is experimental or investigative. With respect to medical/surgical conditions, the plan covers treatment when supported by one or more professionally recognized treatment guidelines and two or more controlled randomized trials.
Although the plan as written purports to exclude experimental or investigative treatment for both MH/SUD and medical/surgical benefits using the same standards, in practice, it imposes this exclusion more stringently on certain MH/SUD benefits, as the plan excludes ABA therapy, despite the fact that professionally recognized treatment guidelines and the requisite number of randomized controlled trials support the use of ABA therapy to treat children with Autism Spectrum Disorder. Accordingly, the plan’s exclusion of certain MH/SUD benefits—in this case, for ABA therapy—does not comply with MHPAEA because the plan applies the NQTL more stringently to these MH/SUD benefits than to medical/surgical benefits.
Likewise, a plan does not comply with the MHPAEA where it defines experimental or investigative treatments as those with a rating below “B” in the Hayes Medical Technology Directory, but the plan reviews and covers certain treatments for medical/surgical conditions that have a rating of “C” on a treatment-by-treatment basis, while denying all benefits for MH/SUD treatment that have a rating of “C” or below, without reviewing the treatments to determine whether exceptions are appropriate. Although the terms of the plan set forth the same evidentiary standard for MH/SUD benefits and medical/surgical benefits, the plan applies a different, and more stringent, evidentiary standard for MH/SUD benefits than for medical/surgical benefits. Claims for medical/surgical treatments with a “C” rating are reviewed to determine whether an exception is medically appropriate while claims for MH/SUD treatments with a “C” rating are denied without review by the plan to determine whether an exception might be medically appropriate. The fact that the plan ultimately denies some medical/surgical benefits that have a rating of “C” does not justify the total exclusion of treatments with a “C” rating for MH/SUD. Accordingly, the plan’s medical management standard does not comply with MHPAEA.
Dosage limits. The FAQs also provide that a plan does not comply with MHPAEA where it follows professionally-recognized treatment guidelines when setting dosage limits for prescription medications, but the dosage limit set by the plan for buprenorphine to treat opioid use disorder is less than what professionally-recognized treatment guidelines generally recommend. However, the dosage limits set by the plan with respect to medical/surgical benefits are not less than the limits such treatment guidelines recommend. If the plan follows the dosage recommendations in professionally-recognized treatment guidelines to set dosage limits for prescription drugs in its formulary to treat medical/surgical conditions, it must also follow comparable treatment guidelines, and apply them no more stringently, in setting dosage limits for prescription drugs, including buprenorphine, to treat MH/SUD conditions.
Particular condition or disorder. A large group health plan or large group insurance coverage that provides benefits for prescription drugs to treat both medical/surgical and MH/SUD conditions but contains a general exclusion for items and services to treat a specific mental health condition, including prescription drugs, is permissible under the MHPAEA. An exclusion of all benefits for a particular condition or disorder is not a treatment limitation for purposes of the definition of “treatment limitations” as set forth in the MHPAEA regulations. The MHPAEA regulations also provide that if a plan or issuer provides benefits for a mental health condition or substance use disorder, benefits for that condition or disorder must be provided in every classification in which medical/surgical benefits are provided. Because the plan or coverage does not provide any MH/SUD benefits for that specific mental health condition in any classification, this exclusion is permissible under MHPAEA.
A footnote to this FAQ (Q/A-4) notes that small group and individual health insurance coverage are generally subject to the requirement to provide essential health benefits, and the determination of whether certain benefits must be covered under the requirements for essential health benefits depends on the benefits in the applicable state’s essential health benefits benchmark plan. State law may also impose certain benefit mandates for large group insured coverage.
Step therapy. The FAQs also address a situation where a health plan requires step therapy for both medical/surgical and MH/SUD in-patient, in-network benefits. The plan requires a participant to have two unsuccessful attempts at outpatient treatment in the past 12 months to be eligible for certain inpatient in-network SUD benefits. However, the plan only requires one unsuccessful attempt at outpatient treatment in the past 12 months to be eligible for inpatient, in-network medical/surgical benefits.
This is probably not permissible under the MHPAEA, according to the FAQs, because refusing to pay for a higher-cost therapy until it is shown that a lower-cost therapy is not effective (commonly known as “step therapy protocols” or “fail-first policies”) is an NQTL. Although the same NQTL – step therapy – is applied to both MH/SUD benefits and medical/surgical benefits for eligibility for inpatient, in-network services, the requirement for two attempts at outpatient treatment to be eligible for inpatient, in-network SUD benefits is a more stringent application of the NQTL than the requirement for one attempt at outpatient treatment to be eligible for inpatient, in-network medical/surgical benefits. Unless the plan can demonstrate that evidentiary standards or other factors were utilized comparably to develop and apply the differing step therapy requirements for these MH/SUD and medical/surgical benefits, this NQTL does not comply with the MHPAEA.
Reimbursement rates. A plan also does not comply with the MHPAEA where its plan documents state that in-network provider reimbursement rates are determined based on the providers’ required training, licensure, and expertise. However, medical/surgical benefits, reimbursement rates are generally the same for physicians and non-physician practitioners. For MH/SUD benefits, the plan pays reduced reimbursement rates for non-physician practitioners. While a plan is not required to pay identical provider reimbursement rates for medical/surgical and MH/SUD providers, a plan’s standards for admitting a provider to participate in a network (including the plan’s reimbursement rates for providers) is an NQTL.
Provider admission to network. The FAQs also address standards for provider admission to participate in a network. Such standards are an NQTL. Thus, in setting standards for provider admission to a network, where a plan’s process to ensure the plan considers network adequacy with respect to providers of medical/surgical services is not comparable to its process with respect to providers of MH/SUD services, the plan does not comply with the MHPAEA. To comply with MHPAEA, if the plan takes steps to ensure the plan has an adequate number of in-network medical/surgical providers, the plan must take comparable steps to ensure an adequate number of in-network MH/SUD providers, even if, following those steps, ultimately there are disparate numbers of MH/SUD and medical/surgical providers in the plan’s network.
Non-hospital residential treatment for eating disorders. A plan also does not comply with the MHPAEA where it covers inpatient, out-of-network treatment outside a hospital for medical/surgical conditions so long as a prescribing physician obtains prior authorization from the plan, the treatment is medically appropriate for the individual, and the facility meets the licensing and certification requirements set by the plan, while the plan unequivocally excludes all inpatient, out-of-network treatment outside a hospital (in this FAQ, non-hospital residential treatment) for eating disorders. This restriction on non-hospital residential treatment for eating disorders is not comparable to the plan’s coverage restrictions for inpatient treatment outside a hospital for medical/surgical conditions, which are less stringent.
ERISA disclosure. The FAQs also address several issues relating to ERISA disclosures for MH/SUD benefits. The MHPAEA final regulations provide express disclosure requirements. Specifically, the criteria for medical necessity determinations with respect to MH/SUD benefits must be made available by the plan administrator or the health insurance issuer to any current or potential participant, beneficiary, or contracting provider upon request. In addition, under MHPAEA, the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits must be made available to participants and beneficiaries.
Updated provider network. DOL regulations provide that, if an ERISA-covered plan utilizes a network, its SPD must provide a general description of the provider network. The list of providers in that SPD must be up-to-date, accurate, and complete (using reasonable efforts).
Information provided electronically. ERISA-covered plans and issuers that utilize provider networks are permitted to provide a hyperlink or URL address in enrollment and plan summary materials for a provider directory where information related to MH/SUD providers can be found.
Model notice. The Departments also developed a model form that individuals, or their authorized representatives may—but are not required to—use to request information that may affect their MH/SUD benefits. This model form can be used for general requests for information regarding MH/SUD benefits and treatment limitations, such as a request for the relevant portions of the SPD or plan document. This model form can also be used to obtain documentation after an adverse benefit determination involving MH/SUD benefits to support an appeal.
SOURCE: FAQs about Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act, Part 39.
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