Now that group health plans and health insurers are required to document their comparative analyses of NQTLs (non-numerical limits on the scope or duration of benefits) and submit their findings, upon request, to the Department of Health and Human Services (HHS), the Department of Labor (DOL), and the Department of the Treasury, it would seem logical that insurers will be more vigilant in ensuring real parity between the medical and mental health coverage. And while there are no real enforcement provisions in the law, it’s definitely a step in the right direction and perhaps even a harbinger of things to come. (Note: an interesting bill to watch is H.R. 1364: Parity Enforcement Act of 2021, currently in committee.)

With heightened attention on mental health parity issues from lawmakers, the hope is that insurers will put greater attention on ensuring compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA). Although the new law doesn’t specify how the analysis is to be conducted, it is to include the following:

  1. The specific plan or coverage terms or other relevant terms regarding the NQTLs and a description of all MH/SUD and medical or surgical benefits to which each such term applies in each respective benefits classification;
  2. The factors used to determine that the NQTLs will apply to MH/SUD benefits and medical or surgical benefits;
  3. The evidentiary standards used for the factors identified, when applicable, provided that every factor shall be defined, and any other source or evidence relied upon to design and apply the NQTLs to MH/SUD benefits and medical or surgical benefits;
  4. The comparative analyses demonstrating that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to MH/SUD benefits, as written and in operation, are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to medical/surgical benefits in the benefits classification; and
  5. The specific findings and conclusions reached by the plan or issuer, including any results of the analyses that indicate that the plan or coverage is or is not in compliance with the MHPAEA requirements. [1]

Under the new law, agencies are required to request these analyses from at least 20 group health plans and/or health insurance issuers each year and to issue a report to Congress that would include the names of the insurers and if they were found to not be in compliance with mental health parity laws. [2]

In addition to advising plans what to include in their analyses, the agencies have also provided guidance on what would be considered insufficient analysis including: generalized statements without supporting evidence, outdated analysis, identification of factors or strategies without a clear explanation of how they were defined or applied in practice. [1]

The agencies have also indicated that, in the near term, they will focus on:

  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).

If a plan or insurer is found not to be in compliance, they’ll have 45 days to make the appropriate changes. If they’re still not in compliance, they are required to notify individuals enrolled in their plan within 7 days and the agencies will also notify states where the insurer is licensed to do business.

Given that there is no real enforcement aspect to the law, it remains to be seen how much impact it will have on the issue of mental health parity. In the very least, it represents an improvement over the current enforcement process, which is largely reactive and essentially relies on consumer complaints. (See “Mental Health Parity: The Issue of Enforcement.”) So a step in the right direction? Yes. But not nearly far enough.


[1] https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-45.pdf

[2] https://www.natlawreview.com/article/consolidated-appropriations-act-underscores-mental-health-parity-compliance

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