Federal Agencies Issue Proposed Mental Health Parity Regulations
The Departments of Labor, Health and Human Services and Treasury have proposed joint regulations related to the Mental Health Parity and Addiction Equity Act (MHPAEA) that if finalized will have significant implications for employer plans.
MHPAEA was approved in 2008 to build upon previous laws that require employers and insurers to provide the same or better health benefits for behavioral healthcare as they do for medical or surgical healthcare. Since then, MHPAEA has been amended twice. First, in 2010, to apply parity requirements to “Non-Quantitative Treatment Limits” or NQTLs, which are processes, standards or criteria that limit the scope of benefits, but that aren’t quantifiable as a number, such as prior authorization, step therapy, provider reimbursement methodologies, network restrictions and others. They amended the law a second time in 2021 to require employers and issuers to prepare comparative analyses to document that their plans’ NQTLs were not more restrictive for mental health and substance use disorder benefits than they were for medical and surgical care.
The newly proposed regulations were accompanied by a 2023 Report to Congress, an enforcement fact sheet, and Technical Release 2023-01P which outlines requirements around network composition. The Alliance is reviewing these regulations in preparation to help our members comply with the new requirements once finalized. The Report to Congress notes that no employers or issuers were found to be compliant with MHPAEA at the start of their audits, which have impacted around 200 health plans so far. The report also describes efforts to step up enforcement from here.
The new regulations introduce a 3-part test for plans to determine whether NQTLs impose greater limits on MH/SUD benefits versus medical/surgical benefits. The technical release goes into greater detail on how this 3-part test would apply to network composition. The three tests are as follows:
- Requires plans to evaluate payments to determine whether NQTL are more restrictive than the “predominant” NQTL that applies to two-thirds of med/surg benefits in each of six classifications (inpatient in-network, in-patient out of network, outpatient in-network, outpatient out of network, emergency care and prescription drugs).
- Prohibits plans to identify factors and evidentiary standards used to design NQTLs and ensure those are not discriminatory and
- Requires plans to collect, evaluate and consider the impact of relevant comparative data and address any material differences.
Comments are being collected on the proposed rule and the technical release until October 2, 2023. The Alliance is planning a webinar on MHPAEA Compliance in November. You can register for the event here.
Federal PBM Legislation Advances
In Congress, several house and Senate committees have purview over healthcare issues, and oftentimes each committee passes its own version of reform over big issues. Then, these different committees ultimately negotiate a final package that is often passed as part of an omnibus spending bill.
That is the case this session when it comes to pharmacy benefit manager (PBM) reforms. This Commonwealth Fund article explains the various issues that are being discussed in our nation’s capital right now that are likely to affect the agreements employers (or their TPAs) have in place with PBMs. Some promising issues include significant transparency requirements that will detail the flow of money between pharmaceutical manufacturers, PBMs, plans and pharmacies and restrictions on how PBMs can make their money.
The Alliance will continue to track this issue and inform members about changes that are ultimately passed into law.