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The Departments of Labor, Department of Health and Human Services, and Department of the Treasury recently published the first annual report the updated Mental Health Parity and Addiction Equity Act (MHPAEA) requirements implemented through the Consolidated Appropriations Act of 2021 (CAA). Under MHPAEA, plans cannot apply nonquantitative treatment limitations (NQTLs) on mental health and substance use disorder benefits more stringently than they apply those limitations to medical/surgical benefits. An NQTL is a limitation on the scope or duration of benefits for treatment that is generally not expressed numerically. The CAA now requires health plans to perform and document comparative analyses regarding the design and application of NQTLs.
Between April and October 2021, EBSA issued 156 letters to plans and issuers requesting comparative analyses. The five most common NQTLs for which EBSA requested an analysis were (1) preauthorization or precertification requirements; (2) network provider admission standards; (3) concurrent care review; (4) limitations on applied behavior analysis or treatment for autism spectrum disorder; and (5) out-of-network reimbursement rates.
EBSA received responses from all plans and issuers but reported that none were initially sufficient. Often, the responses did not contain a comparative analysis at all, were missing the specific information required by the CAA, or did not include additional information required in order to assess compliance. EBSA issued insufficiency letters outlining deficiencies in the analysis and requesting additional information. Ultimately, EBSA obtained sufficient information to make initial determinations of non-compliance for 30 plans.
EBSA reported on common issues among the responses received. Approximately 40% of the plans requested an extension of time to respond, a significant number of which did not yet complete the analysis or—in some cases—not yet begun the analysis. Common deficiencies in submitted analyses include conclusory assertions lacking specific supporting evidence, a lack of meaningful comparison or analysis, and a failure to demonstrate compliance of an NQTL as applied in practice.
According to the report, the following NQTLs are the five most common limitations that were not applied in parity:
· Limitation or exclusion of applied behavior analysis therapy or other services to treat autism spectrum disorder
· Billing requirements – licensed MH/SUD providers can bill the plan only through specific types of other providers
· Limitation or exclusion of medication-assisted treatment for opioid use disorder
· Preauthorization or precertification requirements
· Limitation or exclusion of nutritional counseling for MH/SUD conditions.
While EBSA is allowing plans to submit corrective action plans to address these noncompliance issues, the report gives plans advanced insight into what information EBSA is seeking and which NQTLs are commonly problematic and thus deserve a close and thorough analysis.