Friends, we are well aware that no one likes to listen to braggarts or broken records. However, we feel compelled to talk to you one more time about the Mental Health Parity and Addiction Equity Act (MHPAEA) and non-quantitative treatment limitation (NQTL) comparative analyses. We’re hoping that, as our friends, you’ll be proud of us (instead of annoyed) that we were pretty accurate in predicting the future when we opined on what might be in the new guidance the Department of Labor just issued on this topic.
To back-track a bit, the parity law has been on the books since 2008, but it is really tricky. Health insurance carriers and employer group plan sponsors have struggled with adequate compliance for years. The hardest part seems to be ensuring equitable application of non-quantitative treatment limitations (aka all of the non-math related limits in plan design, like formulary structure and preauthorization requirements). Since 2016, when the 21st Century CURES Act ramped up MHPAEA compliance enforcement, the Departments of Labor and Health and Human Services have been trying to get issuers to be more introspective when it comes to plan design and parity. However, from what we could tell, very few insurers and even fewer employer group plan sponsors were taking them seriously.
Then the Consolidated Appropriations Act of 2021 (CAA), which became law on December 27, 2020, put a new spin on MHPAEA enforcement. The CAA says that as of February 10, 2021, all fully-insured carriers and all employer plan sponsors subject to the MHPAEA (or its rules due to the ACA) need to have detailed analyses on-hand to show how they meet the MHPAEA’s NQTL requirements for every available plan option. Not only that, they must be ready to make their report available to the federal Departments of Health and Human Services (HHS) and Labor (DOL) upon request.
For the past few months, we’ve had the point-of-view that this requirement is a big deal and it will be HARD to do it well. We may have been overheard saying things like “any employers, plan administrators, and carriers that ignore it will do so at their peril” in really witchy voices. We’ve written about it, we developed a product line devoted to it, and we did a webinar on it just the other day . And guess what? The Department of Labor totally agrees with us. According to them:
“Because the Appropriations Act was enacted on December 27, 2020, the requirement applies beginning February 10, 2021. Accordingly, plans and issuers should now be prepared to make their comparative analyses available upon request.”
“Plans and issuers must now be prepared to submit their comparative analysis with respect to each NQTL imposed when requested by any of the Departments or by an applicable State authority.”
Translation: We weren’t kidding when we said you were supposed to have this ready two months ago, so don’t you dare ignore us when we call you about it.
They also point out:
“For an analysis to be treated as sufficient under the Appropriations Act, it must contain a detailed, written, and reasoned explanation of the specific plan terms and practices at issue, and include the bases for the plan’s or issuer’s conclusion that the NQTLs comply with MHPAEA.”
“Plans and issuers should ensure that comparative analyses are sufficiently specific, detailed, and reasoned to demonstrate whether the processes, strategies, evidentiary standards, or other factors used in developing and applying an NQTL are comparable and applied no more stringently to MH/SUD benefits than to medical/surgical benefits, as described further below. To that end, a general statement of compliance, coupled with a conclusory reference to broadly stated processes, strategies, evidentiary standards, or other factors is insufficient to meet this statutory requirement.”
Translation: You can’t just whip your NQTL comparative analysis together. Or, as Monica Geller would say, “I need you to be careful and efficient. And remember: If I am harsh with you, it’s only because you’re doing it wrong.”
Finally, they note:
“Following the 45-day corrective action period, if the Departments make a final determination that the plan or issuer is still not in compliance, not later than 7 days after such determination, the plan or issuer must notify all individuals enrolled in the plan or coverage that the coverage is determined to be noncompliant with MHPAEA. The Departments will also share findings of compliance and noncompliance with the State where the group health plan is located or where the issuer is licensed to do business. In addition, the Departments will comply with other laws applicable to their particular review processes.”
Translation: We are going to make your life very difficult if you do not do this.
So please excuse us while we imitate Joey Tribbiani for a second, tap our heads, and note, “not just a hat rack, my friend!” Then, if you can still stand us, please reach out if: (1) you need any NQTL analytic help, (2) if you are similarly obsessed with the new requirements, or (3) would just like to say, “How YOU doin’?” We promise we will only be a little bit like this when we talk to you!