A new requirement health plans face under the Consolidated Appropriations Act, 2021, is to provide comparative analyses to federal or state agencies upon request of the plan’s non-quantitative treatment limitations (NQTLs) to document compliance with ever evolving guidance under the Mental Health Parity and Addiction Equity Act (MHPAEA), particularly FAQs Part 39, 38, 34, 31, and 29.  Agencies may request this comparative information from plans as soon as February 10, 2021, and actually must request it of at least 20 insurers and/or group health plans annually.  The law provided no direction on how to run a comparative analysis of each NQTL and gives federal regulators a full 18 months until June 2022 to develop the rules around this, leaving employers to wonder how they can comply when February 10th arrives?

Should an employer be asked, they must provide the comparative analyses along with the following information:

  1. “The specific plan or coverage terms or other relevant terms regarding the NQTLs and a description of all mental health or substance use disorder [MH/SUD] and medical or surgical [med/surg] benefits to which each term applies in each respective benefits classification.”
  2. “The factors used to determine that the NQTLs will apply to [MH/SUD] benefits and [med/surg] benefits,”
  3. “The evidentiary standards used for the [these factors], when applicable, provided that every factor shall be defined, and any other source or evidence relied upon to design and apply the NQTLs to [MH/SUD] benefits and [med/surg] benefits.”
  4. “The comparative analyses demonstrating that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to [MH/SUD] benefits, as written and in operation, are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to [med/surg] benefits in the benefits classification.”
  5. “The specific findings and conclusions reached by the group health plan or health insurance issuer with respect to the health insurance coverage, including any results of the analyses described [above] that indicate that the plan or coverage is or is not in compliance.”

Typically, NQTLs are clinical provisions established by the plan’s health insurer or third party administrator that have medical doctors and nurses on staff and reference clinical evidentiary standards and publications to determine what is medically appropriate each year.  So most employers will want to inquire with their insurer/TPA on how they intend to provide a comparative analysis of each NQTL and the answers to the 5 questions above should they be requested of the employer.  While the 4 steps outlined in Page 19, Section F, of the MHPAEA self-compliance tool provides a great start on analyzing each NQTL in the health plan, this may not suffice to meet the new comparative analysis requirement.

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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