The Departments of Labor (DOL), Health and Human Services (HHS), and Treasury released a proposed set of Frequently Asked Questions (FAQs) on nonquantitative treatment limitations (NQTLs) and disclosure requirements under the Mental Health Parity and Addiction Equity Act (MHPAEA). These FAQs cover experimental treatment exclusions, evidentiary standards, prescription drug limits, exclusions for particular conditions, step therapy, reimbursement rates, network adequacy standards, coverage restrictions by facility type, emergency room care and disclosure requirements for network listings.
The agencies also released an updated NQTL document request form for plan participants, a Fact Sheet on 2017 enforcement of the parity rules (most of which involved NQTLs) and a self-compliance tool to help employers monitor their own plans. Finally, the DOL released a 2018 Report to Congress outlining its MHPAEA implementation and enforcement actions.
Comments on the FAQs are due by June 22, 2018, and the guidance will take effect when the final FAQs are published.
The MHPAEA requires parity — quantitative and nonquantitative — between mental health or substance use disorder (MH/SUD) benefits and medical/surgical (M/S) benefits.
- Quantitative parity: Plans may not impose more restrictive financial requirements or treatment limitations on MH/SUD benefits than the predominant financial requirements and treatment limitations for substantially all M/S benefits in a classification.
- Nonquantitative parity: NQTLs may not be imposed on MH/SUD benefits unless comparable processes, strategies, evidentiary standards or other factors are applied to M/S benefits in the same classification. The act also imposes certain disclosure requirements on group health plans and health insurance issuers.
The proposed FAQs, all of which reinforce the general rules for NQTLs, are summarized below.
FAQ 1: Departments’ assistance with MHPAEA compliance. This FAQ discusses the departments’ actions to promote understanding of and compliance with the MHPAEA as required under the 21st Century Cures Act. Based on stakeholder feedback, the agencies revised the draft model form for plan participants requesting documentation of treatment limitations that may affect their access to MH/SUD benefits.
FAQ 2: Experimental treatment exclusion. A plan may exclude treatments it deems experimental/investigational, but the exclusion must be written into plan documents and may not be applied — either on its face or in operation — any more stringently to MH/SUD benefits than to M/S benefits. For example, a plan could not deny all claims for Applied Behavior Analysis (ABA) therapy unless the plan defines ABA therapy as an experimental/investigational treatment.
FAQ 3: Evidentiary standards. Again, a plan may choose to exclude experimental treatments based on evidentiary standards — such as ratings in the Hayes Medical Technology Directory — but such standards must be comparable to and not applied any more stringently than those for M/S benefits.
The plan may not review and cover certain treatments for M/S conditions with a below-standard rating and then automatically deny all benefits for MH/SUD treatments with a below-standard rating without first reviewing the treatments to determine whether exceptions are appropriate.
FAQ 4: Prescription medications. If a plan follows dosage recommendations in professionally recognized treatment guidelines for prescription drugs to treat M/S conditions, it must also follow comparable treatment guidelines, and apply them no more stringently, in establishing dosage limits for prescription drugs, including buprenorphine, to treat MH/SUD conditions. These medical management techniques are NQTLs even though the limits may be expressed numerically (such as dosage limits).
Alternatively, a plan may use a pharmacy and therapeutics (P&T) committee to determine prescription drug coverage and evaluate whether to follow or deviate from professionally recognized treatment guidelines for setting dosage limits. If the plan deviates from nationally recognized guidelines to deny or reduce coverage for buprenorphine/naloxone to treat opioid-use disorder based on P&T committee reports but does not deviate from such guidelines for prescription drugs to treat M/S conditions, this divergence should be evaluated for compliance with NQTL requirements.
FAQ 5: Exclusions for particular conditions/disorders. A general exclusion for a particular condition or disorder is not an NQTL. For example, a plan could exclude all items and services to treat bipolar disorder, including prescription drugs (although state laws may mandate coverage of particular conditions/disorders).
FAQ 6: Step therapy. A plan may require step therapy (an NQTL) for both M/S and MH/SUD inpatient, in-network benefits. But the plan must impose the same conditions on both MH/SUD and M/S benefits, and the conditions may not be applied more stringently to MH/SUD benefits. For example, the plan may not require more attempts at outpatient treatment for MH/SUD conditions than are required for M/S conditions.
FAQ 7: Reimbursement rates. Under the MHPAEA, reimbursement rates may be based on a provider’s required training, licensure and expertise, and plans are not required to pay identical rates for M/S and MH/SUD providers.
A plan’s standards for admitting a provider to a network (including the reimbursement rates) is an NQTL. For example, a plan may not reduce reimbursement rates for non-physician practitioners providing MH/SUD services unless it also reduces the rates for non-physician practitioners providing M/S services.
FAQ 8: Network adequacy standards. Plan standards, such as network adequacy, must be applied in a manner that complies with the MHPAEA regulations. So, factors used to measure network adequacy, such as distance and wait times, must be applied to M/S and MH/SUD benefits in a comparable manner.
FAQ 9: Coverage restrictions based on facility type. If a plan covers inpatient, out-of-network treatment outside of a hospital setting for M/S conditions when the prescribing physician obtains authorization from the plan and the treatment is medically appropriate, then the plan must provide comparable benefits for inpatient, out-of-network treatment outside of a hospital setting for covered MH/SUD conditions.
For example, if a plan covers inpatient, out-of-network treatment outside of a hospital for M/S conditions but excludes residential treatment for eating disorders, the MH/SUD benefits are not comparable to those for the M/S conditions and thus do not comply with the MHPAEA.
FAQ 10: Emergency room care. Whether benefits for emergency room care are related to an M/S condition or an MH/SUD condition depends on the situation.
- If the plan defines a particular acute condition affecting a patient’s physical health as a medical condition, then benefits for emergency room care for the diagnosis, cure, mitigation, treatment or prevention of the acute condition are M/S benefits, regardless of any underlying MH/SUD condition.
For example, if a plan treats lacerations as a medical condition and a participant with an MH/SUD condition seeks emergency treatment for lacerations, the treatment would be considered M/S benefits. However, if the plan defines an acute condition affecting an individual’s physical health as an MH/SUD condition, then benefits for the associated emergency room care are MH/SUD benefits.
FAQs 11 and 12: Disclosure requirements/provider network list updating and delivery. Under DOL regulations, if an ERISA plan uses a network, its summary plan description (SPD) must provide a general description of the provider network and a list of providers. The provider list may be in the SPD or in a separate document that accompanies the SPD as long as it is free and furnished automatically, and the SPD contains a statement to that effect.
- Provider listings must be up to date, accurate and complete (using reasonable efforts).
- The plan may provide a hyperlink or URL address in enrollment materials and SPDs for a directory of MH/SUD providers (provided the DOL’s electronic disclosure safe harbor requirements are met).
- The required Summary of Benefits and Coverage must include an Internet address (or other contact information) for obtaining a list of in-network providers.
All group health plans that provide MH/SUD benefits must comply with the MHPAEA. These FAQs are a reminder for employers to undertake their own testing, particularly as the DOL is actively auditing employers for compliance.