April 14, 2021

The Consolidated Appropriations Act, 2021 (CAA) requires employer-sponsored group health plans to conduct comparative analyses of their plans’ nonquantitative treatment limitations (NQTLs) (e.g., prior authorization, step therapy). These analyses must compare NQTLs’ application to medical and surgical benefits, as compared to mental health and substance use disorder (MH/SUD) benefits (discussed in our prior webinar). This new requirement adds to existing parity rules under the Mental Health Parity and Addiction Equity Act (MHPAEA). On April 2, 2021, the Departments of Labor, Health and Human Services, and the Treasury (Departments) issued implementation guidance in the form of FAQs. We summarize below the provisions most relevant to employers and their group health plans.

Comparative Analysis Guidance

Highlights from the FAQs include the following:

• Effective date. Employers must make comparative analyses available upon request, effective 2/10/2021.
• Compliance guide. Employers should refer to DOL’s MHPAEA Self-Compliance Tool for details on the required analyses for NQTLs. While this self-compliance tool has existed for some time, it previously was considered a best practices guide. It now appears that the policies and procedures in this tool should be considered mandatory.
• Minimum requirements. The FAQs detail minimum requirements for a comparative analysis such as identification of specific MH/SUD and medical/surgical benefits to which each NQTL applies within each benefit classification, and a clear statement as to which benefits identified are treated as MH/SUD and which are treated as medical/surgical.
• Documentation. The FAQs also detail a number of documents that employers should be able to provide—to the Departments or plan participants—upon request. These documents include, among others, records documenting NQTL processes and detailing how NQTLs are being applied to both medical/surgical and MH/SUD benefits and samples of covered and denied MH/SUD and medical/surgical benefit claims.
• Focus areas. The Departments’ focus on specific NQTLs and services are largely driven by patient complaints and reports and therefore will change over time. In the near term, the Departments are focusing on: prior authorization, concurrent review, standards for provider admission to a network (including reimbursement rates), out-of-network reimbursement rates, and coverage of autism spectrum disorder.

MHPAEA compliance is an evolving issue. We expect that the Departments will issue more guidance in the future and will update our members when that guidance becomes available. In the meantime, we recommend that employers discuss with TPAs, health plans, and other vendors how to comply with the comparative analysis requirement.

A more detailed discussion of this guidance is available in our April 13, 2021 webinar, which is available here.

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Policy & Advocacy Mental Health Parity