On April 2, 2021, the Departments of Labor, Health and Human Services, and Treasury (the “Departments”) issued Frequently Asked Questions (“FAQs”) related to the implementation of the mental health and substance use disorder parity provisions under the Consolidated Appropriations Act, 2021 (“CAA”) and the Mental Health Parity and Addictions Equity Act (“MHPAEA”). Since 2008, the MHPAEA has generally prohibited group health plans and health insurance issuers that provide mental health and substance use disorder benefits from imposing less favorable benefit limitations on those benefits than on medical/surgical coverage. Effective February 10, 2021, Section 203 of the CAA requires that a group health plan conduct a detailed comparative analysis related to the nonquantitative treatment limitations (“NQTLs”) utilized under the health plan for medical and surgical benefits against those NQTLs that apply to mental health and substance use disorders. This analysis must be made available upon request to the Departments, state regulators, and, for ERISA plans, participants/beneficiaries/enrollees (or authorized representatives). The FAQs provide guidance on how a group health plan can conduct the analysis (the Departments note that use of the DOL’s MHPAEA Self-Compliance Tool is robust guidance that should be considered), the types of documentation the Departments want to see to verify the analysis, and touches on a 45-day corrective action period made available if a health plan fails to provide sufficiently detailed analysis upon request or a failure to comply with the MHPAEA. See the FAQs for more information.
Group health plan sponsors should contact the plans’ claims administrators or insurance carriers to confirm whether or not the NQTL analysis is being prepared in accordance with the CAA and, if so, when such information will be made available to the employer. In the self-funded group health plan context it is important to determine whether the NQTL analysis is covered by the administrative services agreement with the claims administrator and, if not, to see if that service can be added. For group health plans subject to ERISA, employers should ensure that the plan discloses the NQTL analysis to a participant/beneficiary/enrollee (or authorized representative) upon a request for documents under ERISA Section 104(b) or relevant to a claim or appeal to the extent the benefits they are seeking would be mental health or substance use disorder benefits.
For more information on the CAA, MHPAEA, or the NQTL analysis, please reach out to any member of our team.