The Departments of Labor and Health and Human Services, along with the Internal Revenue Service (Agencies) recently announced they will not enforce regulations promulgated in 2024 regarding the Mental Health Parity and Addiction Equity Act (MHPAEA) (2024 Final Rule), implementing changes Congress made to the MHPAEA by way of the Consolidated Appropriations Act of 2021 (CAA). The Agencies noted they will reconsider or modify the 2024 Final Rule (and potentially other guidance) and review each department’s respective enforcement approach. Before the recent change in enforcement position, the DOL, in particular, had emphasized that MHPAEA compliance was one of its top enforcement priorities.
While plans and insurers may suspend compliance with the 2024 Final Rule, they must continue to comply with the statutory requirements of the CAA and the regulations issued in 2013 implementing MPHAEA (2013 Rules).
Background on MPHAEA, the CAA and Related Regulations
The 2013 Rules require group health plans and health insurance issuers to ensure that any processes, strategies, and evidentiary standards used in applying quantitative treatment limitations and nonquantitative treatment limitations (NQTLs) to mental health/substance use disorder benefits are comparable to, and applied no more stringently than, the processes, strategies and evidentiary standards used in applying the limitation with respect to medical/surgical benefits.
The CAA requires plans and insurers to prepare a written comparative analysis demonstrating compliance with the NQTL requirements.
What The Agencies’ New Position Means for Plans and Insurers
Until further notice, plans and insurers are not required to comply with the requirements in the 2024 Final Rule that are new in relation to the 2013 Rules, which include:
- The new, specific content requirements for the written comparative analysis
- Collection and evaluation of “relevant data” to ensure operational compliance with NQTL requirements
- Fiduciary certification regarding the comparative analysis’s preparation.
However, plans must continue to comply with the CAA’s statutory requirements to prepare the written NQTL comparative analysis and the 2013 Rules, including the requirement that they apply NQTLs comparably and no more stringently to mental health/substance abuse disorder benefits than to medical/surgical benefits. It remains to be seen what position the Agencies will take with respect to what compliance with the written comparative analysis requirement looks like and how aggressively and stringently they will enforce the CAA and 2013 Rules requirements. With any luck, the issuance of new guidance will include a sample comparative analysis!
Plans and insurers should also keep in mind that individual participants can continue to challenge coverage limitations and decisions with respect to NQTLs in private litigation.
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