Recently proposed regulations attempt to ensure that health plans allow access to mental health or substance use disorder (MH/SUD) benefits as easily as medical or surgical (M/S) benefits. The proposed regulations, issued by the US Departments of Health & Human Services, Labor and Treasury (the Departments) on July 25, 2023, implement changes to the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and were accompanied by a Technical Release (the Technical Release). The Technical Release invites comment on certain provisions of the proposed regulations relating to data requirements for Non-Quantitative Treatment Limitations (NQTLs) governing network composition. In a recent On the Subject, we summarized the proposed regulations, and this On the Subject examines the Technical Release.
The MHPAEA prevents group health plans and health insurance issuers that provide MH/SUD benefits from imposing more favorable limitations on medical/surgical M/S benefits, including with respect to annual and lifetime dollar limits, financial requirements and treatment limitations (both quantitative and non-quantitative treatment limitations, i.e., NQTLs)
Quantitative treatment limitations include deductibles, copayments and coinsurance, as well as quantitative treatment limitations that are expressed numerically, such as day or visit limits. In contrast, NQTLs are generally non-numerical requirements that limit the scope or duration of benefits; these include prior authorization requirements, step therapy and standards for provider admission to participate in a network, including reimbursement rates.
The Consolidated Appropriations Act, 2021 amended the MHPAEA to require plans to perform and document NQTL comparative analyses and provide them to the Departments or an applicable state authority upon request. The proposed regulations detail the comparative analysis documentation requirement. They would, among other things, require plans to demonstrate that their NQTLs comply with MHPAEA in both form and operation. The proposed regulations reflect the Departments’ concerns about how NQTLs related to network composition affect access to MH/SUD benefits, which impact access to MH/SUD providers.
THE TECHNICAL RELEASE
The Technical Release offers a data-driven approach to network composition and network access requirements. The Departments invite comment on the type, form and manner of data that plans should be required to collect and evaluate along with other relevant data as part of their comparative analyses. The Departments also invite comments on a potential enforcement safe harbor under which plans would be permitted to demonstrate compliance.
The Departments outline four specific types of data that they are considering requiring plans to collect and evaluate as part of their comparative analyses for NQTLs related to network composition. These include:
Percentage of in-network providers actively submitting claims
Time and distance standards
The Departments propose using the four types of data listed above to assist with their respective reviews and evaluations of whether a plan’s NQTLs related to network composition comply with MHPAEA.
Enforcement Safe Harbor
The Departments propose creating an enforcement safe harbor with respect to NQTLs related to network composition for plans that meet or exceed specific data-based standards identified in future guidance. According to the Technical Release, the safe harbor could include data such as in-network and out-of-network utilization rates (including data related to provider claim submissions), network adequacy metrics (including time and distance data, and data on providers accepting new patients) and reimbursement rates (including as compared to billed charges).
The Departments caution that they expect that the NQTL network composition enforcement safe harbor standards “would set a high bar” to meet for enforcement relief.
The proposed regulations and Technical Release governing network composition would, if adopted in final form, add significant new compliance burdens to an already burdensome rule. The Technical Release provides helpful information regarding the type of data that the Departments expect for network composition NQTL determinations. In addition, the Technical Release clarifies that the Departments propose an enforcement safe harbor for only network composition NQTLs, not all NQTLs.
Practically, the proposed regulations and Technical Release will probably require health plans to eliminate certain NQTLs on MH/SUD benefits and expend greater resources to comply with the MHPAEA, while likely driving up the cost of providing health benefits. As a result, health plan sponsors and service providers should stay updated on the proposed regulations, any potential revisions prior to their finalization and their outsized impact on the operation of health plans.
For any questions regarding mental health parity or for assistance submitting comments concerning the proposed regulations, please contact your regular McDermott lawyer or one of the authors.