The government recently stated that it will delay enforcement of the 2024 final rules on the Mental Health Parity and Addiction Equity Act (MHPAEA). (Our previous alert regarding the 2024 final rules can be found here.) This client alert discusses the impact of the government’s nonenforcement policy on group health plans.
Background
- In 1996, the Mental Health Parity Act was adopted (the Act). The Act required group health plans to have parity between their mental health benefits and their medical/surgical benefits with respect to annual and lifetime limits.
- In 2008, MHPAEA was adopted. MHPAEA amended the Act and required group health plans to have parity between their mental health and substance use disorder (MH/SUD) benefits and their medical/surgical (Med/Surg) benefits with respect to two types of treatment limitations.
- Numerical treatment limitations (e.g., the number of office visits covered by the plan) or Quantitative Treatment Limitations
- Other treatment limitations (e.g., pre-authorization requirements) or Non-Quantitative Treatment Limitations (NQTLs)
- In 2010 and 2013, the government issued regulations concerning the scope of the required parity.
- In 2020, Congress amended MHPAEA, requiring plans to conduct a comparative analysis of their NQTLs.
- In 2024, the government issued regulations (the 2024 final rules) that articulated detailed requirements for the NQTL comparative analysis.
- Last week, the government announced that it is delaying enforcement of the 2024 final rules (to the extent they vary from the prior rules), will undertake a “broader reexamination” of MHPAEA enforcement, and may issue additional sub-regulatory guidance.
Rules Currently Delayed
According to the announcement, the enforcement delay will last for 18 months following the final decision in a lawsuit challenging the 2024 final rules. The court granted the government’s request to hold that lawsuit in abeyance, so the exact duration of the delay is not known at this time.
The enforcement delay applies to the following provisions of the 2024 final rules:
- Fiduciary Certification — At least one plan fiduciary must certify that the fiduciary has engaged in a prudent process to select a qualified service provider to prepare the NQTL comparative analysis.
- Time Frames — When the government requests a copy of a plan’s NQTL comparative analysis, plans have specific, and very short, time frames for responding.
- Definitions — Certain definitions do not incorporate state guidelines.
- Meaningful Benefit Requirement — A plan that offers MH/SUD benefits in any classification must provide meaningful MH/SUD benefits in every classification in which Med/Surg benefits are provided.
- Design and Application Requirement — A plan must not use discriminatory factors or evidentiary standards to design an NQTL.
- Data Evaluation Requirement — A plan must collect and evaluate relevant data in a manner reasonably designed to assess the impact of the NQTLs.
MHPAEA Still Being Enforced
MHPAEA—the statute itself—imposes requirements that will still be enforced. Plans that impose NQTLs on MH/SUD benefits must conduct and document a comparative analysis of the design and application of their NQTLs. Plans must make their NQTL comparative analysis available to the government upon request. The government must audit a certain minimum number of NQTL comparative analyses per year. We anticipate that the government will continue to perform these audits despite the recently issued nonenforcement policy.
Key Takeaways
- The government is still enforcing MPHAEA!
- Employers should be prepared to turn over an NQTL comparative analysis to the government upon request.
- Employers with fully insured plans should contact the insurance company (if they have not already done so) to request a copy of the insurance company’s NQTL comparative analysis.
- Employers with self-funded plans who have not yet conducted or arranged for an NQTL comparative analysis should begin the process of locating a vendor and should contact benefits counsel.
- Employers with self-funded plans whose NQTL comparative analysis is finished or is well under way should contact their vendor to discuss whether the nonenforcement policy will affect the analysis and should contact benefits counsel.
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If you have questions regarding this client alert, please contact the authors, any member of Venable's Employee Benefits and Executive Compensation Group, or your regular Venable lawyer.