Rule proposed to improve mental health parity

The federal government is working to ensure that Americans have the same insurance coverage for mental health services as they do for physical health services.

Late last month, the Departments of the Treasury, Labor, and Health and Human Services released a proposed rule that aims to ensure health plans comply with the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The MHPAEA applies to insurance carriers as well as employer-sponsored group health plans.

The MHPAEA was designed to ensure that insurance plans provide mental health and substance use disorder (SUD) benefits on par with medical and surgical coverage. MHPAEA regulates both quantitative treatment limits (e.g., the number of visits, co-pays, out-of-pocket maximums) as well as non-quantitative treatment limits (NQTLs) such as prior authorization or other medical management techniques.

In 2020, Congress amended MHPAEA, requiring plans to analyze how they were using NQTLs. However, confusion remained over the nature of the analysis and overall parity requirements. The 2023 rules are meant to address that confusion. Here are some of the key changes proposed:

• Network adequacy: The proposed rules would require plans and issuers to ensure that their mental health and SUD provider networks are adequate in size, depth, and quality. The rules would propose standards for determining network composition and out-of-network reimbursement rates.
• Prior authorization: The proposed rules require plans and issuers to use the same standards for prior authorization for mental health and SUD treatment as they do for medical treatment. New examples help clarify equity standards.
• NQTLs: Rules require plans and issuers to collect and evaluate data on the impact of NQTLs on access to mental health and SUD treatment. The proposed rules would codify standards for analysis.
• Fiduciary sign-off: The proposed rules would require one or more named fiduciaries of an ERISA plan to certify that they have reviewed an equity analysis for their plan and found it to be in compliance.

Regulations are still in the proposal state. Given the scope, it’s possible that final regulations may change. Nevertheless, the proposal represents a significant move toward greater MHPAEA enforcement.

Benefit professionals should review the proposed rules carefully to understand how they may impact their organization’s health plans. The proposed rules are open for public comment until October 2, 2023.

Be aware that employers have a fiduciary obligation to ensure that their insurance carriers or third-party administrators are adhering to MHPAEA rules. Failure to comply can open the organization up to enforcement actions by the Department of Labor as well as individual employee suits.