The three federal agencies responsible for enforcing mental health parity rules recently issued additional guidance clarifying that eating disorders are mental health conditions — making health insurance benefits for eating disorders subject to the parity requirements — and offering a model form that health plan participants can use to request more detailed information about their plans’ compliance with those requirements.
Lockton comment: The 21st Century Cures Act (Cures Act), bipartisan legislation signed into law late last year, was an effort by Congress to improve compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA). The law calls for the agencies to increase enforcement efforts to ensure compliance with MHPAEA. The agencies tasked with enforcement are the Department of Health and Human Services, the Department of Labor and Treasury (IRS).
In general, the MHPAEA requires that benefits for mental health and substance abuse disorders (MH/SUD) are the same as benefits provided for medical/surgical treatments. The MHPAEA parity requirements apply both to financial and quantitative treatment limitations as well as non-quantitative treatment limitations (NQTLs).
Lockton comment: NQTLs include medical standards that limit or exclude benefits based on medical necessity or medical appropriateness or whether a treatment is experimental or investigative. While employers that sponsor health plans have potential liability for MHPAEA violations, it may be difficult for employers to get the information they need from claims payers to determine whether the rules’ requirements for NQTLs are being met. Therefore, employers may want to obtain assurances regarding application of NQTLs under their plans from the carriers and vendors that pay claims under their plans.
MHPAEA also includes disclosure requirements requiring plans and insurers to:
- Disclose the criteria for medical necessity determinations regarding mental health and substance abuse disorder benefits to current or potential participants, beneficiaries or contracting providers upon request.
- Furnish the reason for denials of reimbursement or payment for services regarding mental health and substance abuse disorder benefits to participants or beneficiaries.
Lockton comment: The ACA and ERISA impose additional disclosure requirements on group health plans related to plan administration and claims determinations. ERISA, in particular, requires plans to provide participants, upon request, with information about the processes, strategies, evidentiary standards and other factors used to apply an NQTL with respect to medical/surgical benefits and mental health and substance abuse benefits under the plan. Plan sponsors are required to respond to participant requests for this information within 30 days or face penalties under ERISA.
The agencies most recently issued FAQ, Part 38 directed at compliance with MHPAEA, as amended by the ACA and the Cures Act. Included with the FAQ is a draft model form prepared by the agencies to assist participants in requesting information related to MH/SUD benefits offered under their group health plan.
In prior FAQ guidance, the agencies solicited public feedback on how to improve disclosure of required information under MHPAEA as well as other laws, including the ACA and ERISA. In particular, the agencies are looking for ways to improve and streamline disclosures with respect to NQTLs to benefit group health plan participants, as well as plan sponsors and insurers. Included in the issued FAQ was a request for model forms participants and beneficiaries covered by a group health plan currently used to obtain information related to their MH/SUD benefits.
Based on their findings, the agencies released a draft model form (Draft Form) that participants, or their authorized representative, can use to request general information related to their MH/SUD benefits and any limitation or restrictions, including NQTLs, impacting the benefits they receive under their group health plan. The Draft Form can also be used to obtain documentation related to an adverse benefit determination to obtain information that could assist participants with appeals.
Lockton comment: The MHPAEA, ACA and ERISA disclosure requirements have been around for some time, and plan sponsors should be familiar with them. The agencies Draft Form, although not required to be used at this time, could be beneficial for plan sponsors in that it provides a standard participant request form which might provide some level of administrative ease on the part of plan sponsors when dealing with participants’ requests for information.
The agencies are seeking public comments regarding the Draft Form and how to continue to improve the disclosure process by September 13, 2017.
The Cures Act clarified that eating disorders are mental health disorders, and coverage for the treatment of eating disorders is subject to MHPAEA. The agencies’ most recent FAQ also clarifies that eating disorders are mental health conditions. As such, benefits provided for the treatment of eating disorders must comply with MHPAEA; any treatment limitations placed on the treatment of eating disorders must be no more restrictive than the limitations imposed on medical/surgical benefits.
The agencies also requested comment on whether additional clarification is needed regarding how MHPAEA applies to the treatment of eating disorders.
Proceed with Caution
Mental health and substance abuse issues have received a lot of attention from the agencies, as well as Congress, and will likely continue to be a top priority for them. In light of the call for increased enforcement efforts, plan sponsors will want to work with their service teams to review their plans and ensure they are in compliance with MHPAEA parity and disclosure requirements.
Plans may begin to see an increase in participant requests related to MH/SUD benefits going forward. To prepare for this, plan sponsors may want to review the Draft Form so they are familiar with what is included and what information may be requested. Plan sponsors may also want to take a look at their plans’ current claims procedures, making sure they comply with ACA and ERISA requirements.