The agencies (the DOL, IRS, and HHS) recently released additional proposed FAQs, a revised form for individuals requesting information about treatment limitations from employer-sponsored plans, and a self-check tool in accordance with a directive set forth in the 21st Century Cures Act (passed in late 2016), which tasked the agencies to make further progress in clarifying and enforcing compliance with the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The MHPAEA requires group health plans offering both medical/surgical benefits and mental health (MA) or substance use disorder (SUD) benefits to provide MH and SUD benefits at least equal to (“in parity” with) the medical/surgical benefits provided. More detailed summary information about such requirements may be found in our issue brief dated back in December of 2013.
A fact sheet with recent enforcement activity indicated that out of the 187 investigations the DOL closed in 2017, 92 were cited for noncompliance with MHPAEA. It is likely that we will continue to see focus on enforcement of MHPAEA in 2018. Although often the insurance carriers or TPAs will assist in making sure that plan offerings are in compliance with MHPAEA, it is worthwhile for brokers and employers to be aware of these requirements in regard to any covered MH or SUD benefits.
The proposed FAQs focused on the use of non-quantitative treatment limitations (NQTLs) for MH and SUD benefits and disclosure requirements under MHPAEA. See further details below.
Clarification on Application of NQTLs
When implementing a NQTL for MH or SUD benefits, the proposed FAQs clarify that any processes, strategies, evidentiary standards, and other factors considered by the plan be comparable to and applied no more stringently than those used in applying the NQTL to medical/surgical benefits. The proposed FAQs indicate that the following plan practices, while allowed, are considered NQTLs and must be comparable to and not applied more stringently to MH and SUD benefits than to medical surgical benefits:
- Medical management standards limiting or excluding benefits based on whether a treatment is experimental or investigative, or based on medical necessity, medical appropriateness, or other factors (specific examples include coverage of applied behavioral analysis (ABA), which is used to treat autism, and dosage limits for prescription drugs)
- Refusing to pay for a higher-cost therapy until it is shown that a lower-cost therapy is not effective (commonly known as “step therapy protocols” or “fail-first policies”)
- Imposing standards for admitting a provider to participate in a network (including the plan’s reimbursement rates for providers)
- Considering factors such as distance standards and waiting times for participants and beneficiaries for appointments for services to measure network adequacy
- Plan or coverage restrictions based on facility type (specific example addresses residential facilities for eating disorders, which is considered a mental health condition)
While treatment limitations imposed on MH and SUD benefits cannot be more restrictive than treatment limitations that apply to medical/surgical benefits, a plan is allowed to completely exclude benefits for a particular condition or disorder without violating MHPAEA so long as coverage is not required otherwise (e.g., as an essential health benefit under the state benchmark plan for small, fully insured plans).
Clarification of Disclosure Requirements
The proposed FAQs also clarify that if an ERISA-covered plan utilizes a network, its SPD must provide a general description of the provider network, and, more importantly, that the list of providers in that SPD must be up-to-date, accurate, and complete (using reasonable efforts). The list may be provided as a separate document that accompanies the plan’s SPD if it is furnished automatically and without charge and if the SPD contains a statement to that effect.
Any provisions governing the use of network providers, the composition of the provider network, and whether any coverage is provided for out-of-network services may be provided electronically (e.g., via hyperlink or URL address), so long as DOL electronic distribution safe harbor requirements are met. Also keep in mind that a Summary of Benefits and Coverage (SBC) must include an Internet address (or other contact information) for obtaining a list of in-network network providers.
Links to the the FAQs, revised form, and self-check tool are provided below.