Highlights for Employers: New MHPAEA Guidance

On July 25, 2023, the DOL, Treasury, and HHS (the “Departments”) released a Notice of Proposed Rulemaking under the Mental Health Parity and Addiction Equity Act (MHPAEA). The guidance is intended to clarify existing MHPAEA requirements and to assist group health plans and issuers with compliance. 

With over 400 pages of technical information, we have identified some key highlights for employers:

• Network Composition
  • The Departments recognize that most employers do not directly administer their group health plans nor have direct control of their plan’s network composition. However, the Departments reiterate that having a TPA or other service providers does not relieve employers of compliance under the MHPEAE.
  • Employers should ask their TPAs and other service providers how they address concerns about network composition and document the responses they receive.
• Plan Documents and Design
  • The guidance offers new examples of what the Departments have found to be problematic, including benefit coverage for eating disorders, substance use disorders and autism spectrum disorder.
  • The guidance specifically addresses issues with benefit plans not providing Applied Behavior Analysis (ABA) benefits for those with autism spectrum disorder.
• Request Copy of NQTL Comparative Analysis
  • The requirement of the performance and documentation of the NQTL comparative analysis has been in effect since February 10, 2021.
  • The DOL has issued approximately 182 audit letters requesting NQTL analyses from ERISA-covered employers, and HHS has issued approximately 26 audit letters to non-federal governmental group health plans.

Next Steps for the Proposed Rule

If the Proposed Rule is finalized, it would apply to group health plans beginning on the first day of the first plan year beginning on or after January 1, 2025. 

Employers should:

• be aware that the effective date does not relieve them of their current obligations under MHPAEA nor does it relieve them of the requirement to perform and document a NQTL comparative analysis [1].
• begin discussions with their TPAs and other service providers regarding MHPAEA compliance, as discussed in the Proposed Rule and Technical Release 2023-01P.
• review any parameters around existing mental health and substance use disorder benefits to ensure that they are compliant with the Proposed Rule. For more information on ABA, see Proposed Rule Example #5, pg. 112.

For the true compliance nerds among us, here is the Proposed Rule and Department of Labor (DOL) Technical Release 2023-01P.

[1] The NTQL requirement has been in effect since February 10, 2021.