CAA #3: Strengthening Mental Health and Substance Abuse Parity Rules

The Consolidated Appropriations Act (CAA) included provisions designed to strengthen the rules for group health plans to impose Nonquantitative Treatment Limitations (NQTLs) on coverage for treatment of mental health and substance use disorders (MHSUDs) .

• NQTLs are non-numerical treatment limitations or conditions on coverage such as medical management, preauthorization, network limitations, fail-first policies, and other methods of imposing restrictions on the treatment of MHSUDs.
• Under existing rules, plans cannot impose any processes, strategies, evidentiary standards, or other factors used in applying NQTLs to MHSUD benefits unless those limitations are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical/surgical benefits.

In practice, this has been a difficult standard to apply.  Recognizing this, the CAA authorizes the Secretaries of Labor, Treasury, and Health and Human Services to require plans to provide information about their NQTL provisions.  The depth of information requested and that plans must provide is striking.  It includes:

• Relevant plan provisions.
• Factors used to determine the NQTLs that a plan applies.
• Evidentiary standards used to support the use of the NQTLs.
• The comparative analysis performed by the plan to demonstrate that the NQTLs for MHSUD benefits are comparable to and applied no more stringently than those applied to medical and surgical benefits.
• Specific findings and conclusions reached by the plan as a result of that analysis.

The Secretary can request the information from a plan based on complaints of violations or for any other reason.  The first requests may come as early as February 10, 2021.  A minimum of 20 requests be made each year.

The law requires the Secretary to submit an annual report to Congress summarizing the results of its requests, including the identity of each group health plan found to be out of compliance.

The law further directs the Secretary to publish a “compliance program guidance document” to assist plans with compliance obligation.  The document is to include examples of compliance and non-compliance based on the information requested.

Congress clearly views the application of NQTLs as a problem area.

• In the short term, plans should be prepared to provide information as requested by the Secretary.  Most plans will use a vendor to apply their NQTLs and will want to confirm that those vendors are willing and able to handle an investigation into their methods.
• In the long term, plans (and their vendors) should be prepared to make modification to plans as needed following publication of the government’s guidance document.