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Recently, the U.S. Department of Health and Human Services, the Department of Labor and the Department of Treasury (collectively referred to as “Tri Agencies”) issued final rules regarding the MHPAEA. These new rules amend some of MHPAEA’s previous regulations, such as amending the definitions of certain terms and adding new definitions for other terms. The final rules also add new regulations specifically addressing requirements for nonquantitative treatment limitation (“NQTL”) comparative analysis. For purposes of this post, we briefly summarize the new regulations concerning the NQTL analysis.
The NQTL comparative analysis requirement was added when MHPAEA was amended by the Consolidated Appropriations Act, 2021 (“CAA”). Generally, NQTLs are requirements that limit the scope or duration of benefits and under the final rules, a plan or issuer may not impose an NQTL to mental health or substance use disorder benefits (“MH/SUD benefits”) that is more restrictive (as written or in operation) than what is applied to medical/surgical benefits (“Med/Sur benefits”). For example, a prior authorization requirement for inpatient mental health services might face scrutiny if inpatient medical or surgical services are not subject to a similar prior authorization requirement.
Pursuant to the final rules, a group health plan must ensure that a NQTL satisfies the following requirements:
Design and Application, i.e. the processes, strategies, evidentiary standards, etc. used in designing and applying an NQTL to MH/SUD benefits must be comparable and applied no more stringently that those applied to Med/Sur benefits in the same classification. Moreover, the use of discriminatory factors, such as information that may be biased or not objective or is applied in a manner that discriminates against MH/SUD benefits, is prohibited.
Relevant Data Evaluation, i.e. group health plans must collect and evaluate relevant data to assess the impact of the NQTL on relevant outcomes related to access to MH/SUD benefits and Med/Sur benefits and then consider the impact. Although there is some flexibility for group health plans in determining what may be collected and evaluated, group health plans should be aware that the Departments may request additional data beyond what the group health plan may believe is relevant.
The NQTL comparative analysis must contain, at a minimum, six content elements:
a description of the NQTL, including identification of benefits subject to the NQTL;
identification and definition of the factors and evidentiary standards used to design or apply the NQTL;
a description of how factors are used in the design or application of the NQTL;
a demonstration of comparability and stringency, as written;
a demonstration of comparability and stringency, in operation, including the required data, evaluation of that data, explanation of any material differences in access, and description of reasonable actions taken to address such differences; and
findings and conclusions.
In addition, the final rules require that plans subject to ERISA ensure that one or more plan fiduciaries review and understand any NQTL comparative analysis prepared by or on behalf of the plan. The fiduciary must certify that the service providers which performed the analysis were prudently selected and that they have been monitored by the fiduciaries.
Finally, group health plans should be on notice that the comparative analysis must not only be provided to the Departments within ten (10) business days of the request, but a copy of the comparative analysis may also be requested by plan participants and beneficiaries and must be provided to them, if requested.
While the final rules generally apply on the first day of the plan year after January 1, 2025, the NQTL comparative analysis requirements under the final rule are not applicable until the first day of the plan year following January 1, 2026. However, group health plans must still comply with requirements that were in place prior to the final rule.
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