Group well being plans and compliance with the non-quantitative therapy restrictions of the Psychological Well being Equal Therapy and Dependancy Justice Act | Saul Ewing Arnstein & Lehr LLP
Group health insurance sponsors and / or administrators choose the design of their group health insurance plans, but generally do not act as claims administrators. Insurance carriers (for fully insured programs) and third party administrators (for self-insured plans) decide whether claims for health care are covered by a group health plan and what the plan pays. In general, plan administrators have little or no experience in applying the parity requirements of the 2008 Paul Wellstone and Pete Domenici Equal Treatment Act (“MHPAEA”) or understanding what a “non-quantitative treatment limit” (NQTL .) represents “) under MHPAEA. The Consolidated Appropriations Act of 2021 (“Appropriations Act”) adds new enforcement provisions and requires documentation of compliance with the NQTLs by the group health plan with effect from February 10, 2021.
The MHPAEA generally requires work-based group health insurance and health insurance providers providing Mental Health / Substance Use Disorder (“MH / SUD”) benefits in order to maintain equality between those benefits and their medical / surgical (“M / S”) benefits. This means that the financial requirements (such as deductibles and deductibles), quantitative treatment restrictions (such as visit limits), and non-quantitative treatment restrictions (“NQTLs”) (such as medical management standards) that apply to MH / SUD benefits under plans are no more restrictive than the requirements or restrictions that apply to M / S services.
The MHPAEA interim and final regulation, jointly issued by the Ministry of Labor (“DOL”), the Ministry of Finance and the Ministry of Health (“HHS”) (“collectively the” Departments “) in 2010 and 2013, lists six performance classifications: stationary, in the network; (2) stationary, outside the network; (3) outpatient, in the network; (4) outpatient, outside the network; (5) emergency care; and (6) prescription drugs. If a plan covers MH / SUD services of one classification, the plan must provide MH / SUD services in all classifications in which M / S services are available. While the MHPAEA’s financial restrictions (i.e., co-insurance and co-payments) and treatment restrictions (i.e., number of insured visits to a provider, daily limits) are numerical and objective, NQTLs are not. Parity requirements for NQTLs will not be met unless the terms of the plan (as written and in operation) use the processes, strategies, standards of evidence or other factors (collectively, “Factors”) that are used in applying an NQTL to a MH / SUD in each of the six categories are no stricter than the factors used in applying NQTLs to M / S achievements in the same category.
The Appropriations Act amended the Employee Retirement Income Security Act of 1974 (“ERISA”), the Public Health Service Act, and the Internal Revenue Code to require from plan administrators of group health insurances (grandfather and non-grandfather) and from health insurance issuers, “[p]Performing and documenting a comparative analysis of the design and application of “non-quantitative treatment restrictions for all mental illness and substance abuse coverage when the plan or issuer prescribes non-quantitative treatment restrictions. Upon request, this information must be presented to state and federal regulatory agencies, who can request the information 45 days after the law comes into effect (emphasis added). “
The requirement to conduct and document a comparative analysis of the design and application of NQTLs applies to self-insured tariffs and insurance carriers, including qualified health insurances offered by the health insurance marketplace.
The analysis for each plan (and each benefit option under the plan) must be detailed and specific. A general declaration of conformity is not acceptable. On April 2, 2021, the ministries issued frequently asked questions (“FAQs”) in relation to the NQTLs comparative analysis obligation of the Budget Act. These FAQs direct plan administrators to an MHPAEA self-compliance tool updated in 2020 and FAQs released on September 5, 2019 (Implementation of Mental Health and Substance Use Disorders and Parity Law of the 21st Century, Part 39) to address a Instructions for making the comparison to get analysis.
The Budget Act also requires that group health insurers and health insurers provide department secretaries (individually a “secretary”) with documentation (including comparative analysis) on request that demonstrate the NQTL compliance of the plan. In April 2021, DOL began making these requests. If a secretary determines that a group health plan is inconsistent with budget law, the plan will be presented with documentation that meets the requirements of the NQTL comparative analysis 45 days after the non-compliance is first detected. If the group health plan still does not meet the requirements after the 45-day period has expired, tariff participants must be informed that the group health plan does not meet the NQTLs of the MHPAEA.
Institutions that process benefit applications for insured group health insurers and TPAs as claims administrators for self-insured group health insurers are best able to carry out and document the necessary NQTL comparative analysis. However, getting assistance from carriers and TPAs can be difficult and expensive. If a vendor claims that the NQTL analysis is outside the scope of the administrative service contract or contract, the preparation of this complex documentation is the responsibility of the plan administrator or plan sponsor. It is possible to outsource the creation of the analysis to a performance advisor (for a fee). TPAs may also agree (now or in the future) to only perform the comparative analysis if existing agreements are changed to include this in the scope of work and additional administration fees are paid.
There is another very important reason to complete this analysis. The final provisions of November 13, 2013 as well as the FAQs of the departments of April 2, 2021 provide that, within the meaning of § 104 ERISA, certain documents in connection with parity according to the NQTL rule are considered documents according to which the plan is drawn up or and must be presented upon request by plan participants within 30 days of the request. Documents according to which a group health plan is drawn up or operated include comparative information on the criteria of medical necessity for both M / S services and MH / SUD services as well as documentation of the process strategies, standards of evidence and other factors that are used, to get an NQTL on all. apply advantages of M / S and MH / SUD. See: Q&A 6 in the FAQs dated April 2, 2021 issued by the departments.
Plan sponsors and administrators should contact their vendors (carriers and TPAs) to determine how best to meet this complicated compliance requirement.
- See: Final MHPAEA Regulations issued by the departments on November 13, 2013. Between the MHPAEA regulations in 2010, the NQTL requirements were also measured.
- The departments are jointly responsible for enforcing the MHPAEA with the states. State has primary enforcement responsibility for health insurance issuers, while HHS has direct enforcement responsibility for non-state government plans (plans sponsored by state and local governments).
- The Department of Labor (“DOL”) expects to focus its enforcement efforts on the following NQTLs: pre-approval requirements, concurrent review requirements, standards for allowing providers to participate in a network (including reimbursement rates); Network-independent reimbursement rates (planning procedure for determining customary, customary and reasonable charges). See: Q&A 8, Department FAQs from April 2, 2021.
- Since the parity requirement is not new for NQTLs, the DOL has reportedly rejected apologies for non-compliance due to lack of access to information held only by a group health insurance provider.