The Mental Health Parity and Addiction Equity Act (MHPAEA) of 2008 and Affordable Care Act (ACA) of 2010 have sought to ensure that group and individual health insurance is no more restrictive when it comes to mental health coverage than it is with medical health coverage. However, as we have noted in previous articles, mental health parity is still a significant issue. (See Mental Health Care Parity – A Goal We’re Far from Achieving and Barriers to Mental Health Services: Beyond Mental Health Parity.)

Some insurers still use stricter NQTLs (non-numerical limits on the scope or duration of benefits) when it comes to mental health conditions. In the first few years after MHPAEA’s implementation, the Department of Health and Human Services found that “plans frequently employ NQTLs for behavioral health conditions that are more restrictive than those used for other medical/surgical conditions.” [1] Much of the problem, as we have noted previously, is enforcement.

The Consolidated Appropriations Act of 2021 included provisions requiring plans to “conduct comparative analyses to document their compliance with the existing rules governing nonquantitative treatment limitations (NQTLs).” [2] And while the provisions don’t specifically address enforcement, the analysis requirements could provide the Department of Labor (DOL) with more information to aid in mental health care parity investigations.

There are numerous NQTLs that are potential red flags in mental health care parity compliance. The DOL has identified specific provisions “which should trigger careful analysis of the coverage . . . to ensure MHPAEA NQTL compliance.” [3] Below are examples of NQTLs that the DOL has identified as potential red flags.

Preauthorization & Pre-service Notification Requirements:

  • Preauthorization/pre-service notification or concurrent care review.
  • Conducting its own review for mental health services.
  • Preauthorization every three months for pain medications prescribed for mental health conditions.

Fail-first Protocol Requirements:

  • Intensive outpatient treatment coverage must first show that a less intensive treatment showed no progress.
  • Inpatient substance abuse treatment coverage only after two forms of outpatient treatment has been attempted.
  • Any inpatient treatment coverage requires the individual to first complete a partial hospitalization treatment plan.

Probability of Improvement Requirements:

  • Requirement that inpatient treatment will likely result in improvement.

Written Treatment Plan Requirements:

  • Written treatment plan prescribed and supervised by a behavioral health provider.
  • Treatment plan required within a certain period of time.
  • Review of plan on regular basis.

Other Requirements:

  • Exclusion based on patient non-compliance (i.e., if individual ends treatment against medical advice).
  • Exclusion of residential treatment for chemical dependency.
  • Geographical limitations related to treatment.
  • State licensing requirements.

If the insurer has these requirements for both mental and physical health coverage, then parity exists. But the likelihood that similar restrictions are not in place for medical coverage is what makes these potential red flags.




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