By Sandra Durkin

One theme that bubbled to the surface of cultural conversations around healthcare over the last year is the notion that “mental health is health.” Whether you’re a parent of children who struggled with isolation during a year of virtual school, a person who relied on in-person support for mental and behavioral health issues before the pandemic, or a healthcare professional trying to meet the needs of patients who are in increasing need of services for mental illness and substance use disorders, you know that COVID-19 has had an enormous, negative impact on mental health.

While the expansion of telehealth during the public health emergency was a boon to mental health treatment, a recent report by the Government Accountability Office (GAO) suggests that access to behavioral health services may have decreased at a time when behavioral health conditions were on the rise. The GAO report attributes this decline in access to several factors, including shortages in the workforce of providers as well as reduced staff and decreased services due to the challenges of caring for patients during the pandemic. Although provider groups interviewed during the investigation cited problems with payment delays and denials for claims for behavioral health services, most were not able to identify data confirming their concerns beyond anecdotal information. Nevertheless, the report from the GAO posits that this gap in data could be due to the fact that consumers are not aware of or do not understand mental health parity requirements.

Understanding and demonstrating compliance with federal parity requirements—including new requirements imposed by the recently enacted in the Consolidated Appropriations Act (CAA), 2021, is one of the chief ways that health plans and issuers can address the mental and behavioral health needs of their members. The Mental Health Parity and Addiction Equity Act (MHPAEA), passed in 2008 and extended by the Patient Protection and Affordable Care Act (PPACA) of 2010, generally prohibits group health plans and health insurance issuers that provide mental health or substance use disorder (MH/SUD) benefits from subjecting MH/SUD benefits to less favorable limitations than medical/surgical benefits. While the MHPAEA does not require plans and issuers to provide MH/SUD coverage in the first instance, those that do must provide such benefits on the same terms as medical/surgical benefits. In practice, this means that the financial requirements (e.g., annual or lifetime dollar limits, deductibles, and co-payments) and treatment limitations (e.g., number of treatments, visits, or days of coverage) that apply to MH/SUD benefits must be no more restrictive than the predominant financial requirements or treatment limitations that apply to substantially all medical/surgical benefits. Plans and issuers must also ensure parity with respect to non-quantitative treatment limitations (NQTLs), which include any non-numerical limitations on the scope or duration of benefits, such as preauthorization, step therapy, and provider credentialing requirements.

The CAA adds to the MHPAEA by imposing new compliance requirements on health plans and issuers to ensure adherence to the pre-existing parity rules. Specifically, the CAA requires group health plans and health insurance issuers offering group or individual coverage to “perform and document comparative analyses of the design and application of NQTLs” and to make those comparative analysis available to the Departments of Labor (DOL) or Health and Human Services (HHS) upon request. The CAA further requires the DOL and HHS to request not fewer than twenty analyses per year and to report to Congress a publicly available summary of the comparative analyses, including the identities of the plans and issuers and the agencies’ conclusions as to whether they are in compliance with the MHPAEA.

Unlike many other provisions of the CAA, these new requirements went into effect on February 10, 2021, a mere 45 days after the law’s passage. Though this short implementation timeline posed a challenge to plans and issuers conducting comparative NQTL analyses for the first time, the DOL and HHS, together with the Department of Treasury (collectively, the Departments), recently issued guidance for implementing the CAA’s new parity requirements in the form of Frequently Asked Questions (FAQs) published on April 2, 2021. The FAQs affirm that “plans and issuers should now be prepared to make their comparative analyses available upon request,” and provide detailed information about what information plans and issuers must make available in response to the Departments’ requests, what types of documents plans and issuers should be prepared to make available to support their analyses, and examples of reasons why the Departments might conclude that comparative analyses are insufficient. The Departments advised that comparative analyses must be sufficiently specific, detailed, and reasoned to demonstrate that the processes used to develop and apply NQTLs are comparable and applied no more stringently to MH/SUD benefits, and warned against making “general statements of compliance” and “conclusory reference to broadly stated processes.” The Departments recommended that plans and issuers make use of the MHPAEA Self-Compliance Tool that the DOL maintains on its website, noting that plans and issuers that apply this guidance “should be in a strong position” to comply with the new compliance requirements.

The FAQs identify nine elements that plans and issuers should include in a comparative analysis, including:

1. A clear description of the specific NQTL, plan terms, and policies at issue;
2. Identification of the specific benefits to which the NQTL applies;
3. Identification of any factors, evidentiary standards or sources, or strategies or processes considered in the design or application of the NQTL;
4. Any applicable definitions and supporting sources to the extent any factors, standards, strategies, or processes are defined in a quantitative manner;
5. An explanation for any variances in application of the NQTL;
6. The nature of any decisions that inform the application of the NQTL;
7. An assessment of any expert evaluation on which the comparative analysis relies;
8. A reasoned discussion of the plan’s or issuer’s findings and conclusions as to the comparability of the processes, strategies, evidentiary standards, factors; and
9. The date of the analysis and the name, title, and position of the persons who performed the comparative analysis.

In responding to requests for comparative analyses, plans and issuers should avoid the following:

1. Producing of a large volume of documents without a clear explanation of relevance;
2. Conclusory or generalized statements without specific supporting evidence and detailed explanations;
3. Identifying processes, strategies, sources, and factors without clear and detailed comparative analysis;
4. Identifying factors, evidentiary standards, and strategies without a clear explanation of how they were defined and applied;
5. Referring to evidentiary standards that were defined or applied in a quantitative manner, without information necessary to assess their development or application; and
6. Providing analysis that is outdated for any reason, including passage of time or change on plan structure.

The FAQs also identify the actions that the Departments will take if a plan or issuer is deemed to be out of compliance with the MHPAEA. If a plan or issuer remains out of compliance after a 45-day corrective action period, it will be required to notify enrollees, and the Departments will share findings with applicable state authorities. In addition, the FAQs make clear that participants, beneficiaries, enrollees (or their authorized representatives), and state regulators can all request NQTL analyses. Though the Departments reserve the right to request a comparative analysis for any NQTL that is the subject of a complaint or potential violation, the DOL expects to focus on the following NQTLs in the near term:

1. Prior authorization requirements for in-network and out-of-network inpatient services;
2. Concurrent review for in-network and out-of-network inpatient and outpatient services;
3. Standards for provider admission to participate in a network, including reimbursement rates; and
4. Out-of-network reimbursement rates (plan methods for determining usual, customary, and reasonable charges).

Though the federal parity requirements are not new, plans and issuers will likely find the extensive documentation required by the CAA to be onerous. The nature of NQTLs makes analysis difficult, and differences in the treatment infrastructures for MH/SUD and medical/surgical treatment—such as shortages in behavioral health providers and limited evidence and standards for assessing quality of MH/SUD treatments—further complicate the parity analysis. The last year has shown the great demand for mental and behavioral health services. While the CAA’s enhanced compliance requirements impose new burdens, they afford an opportunity for plans and issuers to identify, resolve, and explain if appropriate discrepancies in how NQTLs are applied between MH/SUDs are applied, and to structure MH/SUD coverage that will serve the increasing needs of enrollees.