The Department of Labor (DOL) has issued new guidance to help plan administrators determine whether certain coverage guidelines applied to mental health and substance abuse treatment are permissible. This new FAQ supplements the slew of guidance previously issued in relation to the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) a little over a year ago. See the Lockton Alert about those updates.
The recently issued update to the FAQs did not add new substantive information or interpretative details. Instead, the FAQs provide additional examples to demonstrate how the rules are intended to operate.
Lockton comment: The MHPAEA requirements are maddeningly difficult to administer, so additional guidance is welcome. MHPAEA does not mandate inclusion of mental health and substance use disorder (MH/SUD) benefits in health plans. However, MHPAEA requires health plans that offer MH/SUD benefits to treat those benefits the same way, or at least close to the same way, as the plan treats benefits for medical and surgical treatment. Historical differences in how coverage and payment are established between medical and surgical benefits and MH/SUD benefits have made true parity difficult to achieve. As this update demonstrates, that difficulty continues.
The guidance generally distinguishes between quantitative treatment limitations (QTLs) and nonquantitative treatment limitations (NQTLs). The most difficult interpretive area is in the NQTL treatment. The QTL mandate prohibits a plan from making any different provisions for coverage based on numerical distinctions, such as visit or day limitations. Those are relatively easy to understand. However, a plan may violate the NQTL under MHPAEA when benefits are offered with differing criteria for coverage between medical/surgical treatment and MH/SUD treatment, and those distinctions can be subtler.
One example in the FAQs provides the following: The plan excludes experimental treatments if there are no professionally recognized treatment guidelines and fewer than two randomized controlled trials are available to support the treatment. The plan excludes applied behavioral analysis (ABA) to treat autism spectrum disorder, despite there being professionally recognized treatment guidelines and at least two randomized, controlled trials to support the treatment. The exclusion of ABA specifically in relation to the treatment of autism violates MHPAEA. However, excluding all treatment for autism spectrum disorder (or other types of MH/SUD) would not violate MHPAEA.
Lockton comment: This is an important FAQ, as there has been significant confusion regarding coverage of ABA and the application of MHPAEA to such treatment. Plan administrators should review plan terms to assure that ABA is not specifically excluded from covered autism treatment. Any carve outs for treatment, particularly under MH/SUD treatment, should be reviewed under both MHPAEA and the Americans with Disabilities Act. Care should be taken if any exclusions following this route are considered.
In other examples, exclusions and exceptions favor medical and surgical treatments while MH/SUD treatments get more stringent application. The DOL has taken the position that any such deviations will violate the MHPAEA rules.
One of the more interesting FAQs addresses treatment of eating disorders. The plan provides treatment for eating disorders but excludes any inpatient, out-of-network treatment outside a hospital setting, including non-hospital residential treatment. The DOL notes that any plan or coverage restrictions based on facility type are NQTLs.
In other words, if the plan provides inpatient, out-of-network treatment outside a hospital setting, including non-hospital residential treatment for medical or surgical benefits, it is impermissible to exclude such treatment in the case of eating disorders, a MH/SUD treatment. In this example, the plan covers inpatient, out-of-network treatment outside a hospital for medical and surgical conditions if a prescribing physician obtains prior authorization from the plan, the treatment is medically appropriate for the individual, and the facility is appropriately licensed. Because no similar method to obtain authorization for MH/SUD treatment of an eating disorder at an inpatient, out-of-network hospital setting is available, the plan’s distinction violates the MHPAEA.
Lockton comment: This is a particularly interesting interpretation in light of the recent spate of litigation on certain wilderness therapy treatments and exclusion of such therapy under medical plans. Employers may attempt to limit coverage by excluding treatments that are not covered in “traditional” settings. Care should be taken to make sure the same types of exclusions will apply to both medical and surgical benefits as well as MH/SUD benefits. If there is a way to obtain an exception for the medical and surgical treatments, a similar method should to be available to obtain an exception for MH/SUD treatment.
Finally, the new FAQs include details about plan disclosures and offer model plan disclosures and requests for information from plan participants. Model documents offer additional protection to employers seeking to administer their plans in strict compliance with MHPAEA.
Lockton comment: The expanded, new FAQs regarding ABA treatment is a perfect example of the additional clarity on specific coverage issues we have begun to see. Employers should remain cognizant of interpretation provided through both litigation and regulation given the way the law is evolving. Court decisions may not apply to all regions of the country. Therefore, focusing on compliance with the regulatory track will provide some comfort with plan design.
We expect to see continuing litigation and regulatory guidance given the complexity of MHPAEA. Consult with your Lockton team if you have any questions about your plan terms and how these new examples could impact your coverage.