Federal regulators have published FAQs Part 45 addressing requirements under the Mental Health Parity and Addiction Equity Act (MHPAEA) in light of changes required by the Consolidated Appropriations Act of 2021.  We mentioned in our previous article that the federal MHPAEA Self-Compliance Tool might be a great start to comply with the new NQTL reporting requirements, but that it might not be sufficient on its own.  We also noted that in almost all circumstances the insurer or TPA’s clinical staff determines which non-quantitative treatment limitations (NQTLs) are appropriate for the new plan year based on the most recent clinical evidence-based care guidelines, so insurers/TPAs typically hold all the cards in explaining how a plan’s NQTLs were developed and finalized.  Employers by and large will not be in any position to run an analysis of how the insurer’s or TPA’s clinical staff arrived at the plan terms the group is subject to with respect to NQTLs.  Nevertheless, the employer with a self-funded health plan is responsible to ensure the comparative analysis is done properly and thoroughly and is routinely updated, with no way under the new law to contractually assign responsibility or liability to the third party that is very likely making those decisions.

In Q&A #2, regulators mention that generalized statements of compliance will not be sufficient for the new reporting requirements, and that they provided an online resource a few years ago which has been updated over the years to help facilitate a strong start at compliance.

Plans and issuers that have carefully applied the guidance in the Self-Compliance Tool should be in a strong position to comply with the Appropriation Act’s requirement to submit comparative analyses upon request. The MHPAEA Self-Compliance Tool was last updated in 2020, before the enactment of the Appropriations Act, and it recommends that plans and issuers analyze NQTLs and document those analyses as a best practice. However, the Appropriations Act expressly requires that plans and issuers now conduct and document comparative analyses of the design and application of NQTLs. Therefore, this process is no longer a “best practice;” it is required.

They go on to state this analysis requires a “robust discussion” of every angle that led to the adoption of each NQTL, with a reasoned, sound explanation of every single element that went into the adoption of the NQTL.  At the same time, the FAQs also state that regulators will not accept a plan, employer, or issuer just handing them a bunch of studies, statistics, and other haphazard information for the auditor to sort through and make sense of.  All of those comprehensive reference materials must be compiled in an orderly fashion with a thorough explanation of how each element was relied upon to form the NQTL requirement.  There is also an expectation that each new year’s NQTLs should be reevaluated to ensure the plan is keeping up with the most recent clinical guidelines.

Regulators state that if auditors find a deficiency, the plan will have 45 days to correct the issue.  This is an incredibly tight turnaround to make a mid-year plan change and to reprocess prior claims, and in the event it alters something reflected on the SBC, it will force the plan to be unable to comply with the 60-day advance notice requirement for an SBC communicating a mid-year change.  Furthermore, if auditors disagree that the deficiency has been properly cured, they will notify the State of the non-compliance and will direct the employer/insurer to notify all plan participants within seven days that the plan fails to comply with the MHPAEA.

Regulators will keep identifying any areas that might need additional guidance.  For now, they offered a short example relevant to today’s continuing opioid crisis of an NQTL for which they would expect a plan to provide a comparative analysis:

For example, in the event that a complaint is received regarding prior authorization requirements for coverage of buprenorphine for the treatment of opioid use disorder, the Departments may request an NQTL comparative analysis for prior authorization requirements placed on prescription drugs.

They’ve identified the following as initial focus areas but warned that plans must provide a comparative analysis upon request for any NQTL they have, not just this list:

  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).

Below are several other NQTLs we’ve seen (not an exhaustive list):

  • Medical necessity/appropriateness standards/determinations (and experimental/investigative denial determinations)
  • Ongoing authorization requirements
  • Fail-first/step-therapy requirements, or requirements to complete a course of treatment
  • Exclusions of some or all services for targeted conditions (autism, eating disorders, etc.)
  • Formulary determinations
  • Adequate access to in-network care
  • Multiple-tier network determinations (such as a sub-classification of preferred providers for which better terms are available)
  • Restrictions on codes providers are allowed to use for billing
  • Restrictions based on geography, type of provider/facility, etc. (outdoor wilderness therapy, inpatient rehab facility, etc.)

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.

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