People Processes: Deep Dive into Mental Health Parity and Autism Diagnosis

EBSA issues array of guidance on mental health parity

EBSA has released an array of guidance on the Mental Health Parity and Addiction Equity Act (MHPAEA), including proposed Frequently Asked Questions, an enforcement fact sheet, a self-compliance tool, and a revised draft disclosure template. In addition, the DOL has released a report to Congress that outlines its current implementation and enforcement actions in furtherance of the MHPAEA.

Background. In general, MHPAEA requires that the financial requirements (such as coinsurance and copays) and treatment limitations (such as visit limits) imposed on mental health or substance use disorder (MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical/surgical benefits in a classification.

With regard to any nonquantitative treatment limitation (NQTL), the MHPAEA final regulations provide that a group health plan or health insurance issuer may not impose an NQTL with respect to MH/SUD benefits in any classification unless, under the terms of the plan (or health insurance coverage) as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in the classification are comparable to, and are applied no more stringently than the processes, strategies, evidentiary standards, or other factors used in applying the limitation to medical/surgical benefits in the same classification. MHPAEA also imposes certain disclosure requirements on group health plans and health insurance issuers.

FAQs on NQTL. The proposed FAQs, which were prepared jointly by the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (Departments), were developed consistent with Section 13001(b) of the 21st Century Cures Act. Section 13001(b) requires that the Departments issue clarifying information and illustrative examples of methods that a plan or issuer offering group or individual health insurance coverage can use to disclose information in compliance with MHPAEA. Section 13001(b) also directs the Departments to issue clarifying information and illustrative examples of methods, processes, strategies, evidentiary standards, and other factors that plans and issuers may use regarding the development and application of NQTLs.

Experimental treatment. The FAQs first address whether it is permissible for a plan to deny claims for Applied Behavioral Analysis (ABA) therapy to treat children with Autism Spectrum Disorder under the rationale that the treatment is experimental or investigative. With respect to medical/surgical conditions, the plan approved treatment when supported by one or more professionally recognized treatment guidelines and two or more controlled randomized trials.

A medical management standard limiting or excluding benefits based on whether a treatment is experimental or investigative is an NQTL under MHPAEA. Although the plan as written purports to exclude experimental or investigative treatment for both MH/SUD and medical/surgical benefits using the same standards, in practice, it imposes this exclusion more stringently on MH/SUD benefits, as the plan denies all claims for ABA therapy, despite the fact that professionally recognized treatment guidelines and the requisite number of randomized controlled trials support the use of ABA therapy to treat children with Autism Spectrum Disorder. Accordingly, because the plan applies the NQTL more stringently to mental health benefits than to medical/surgical benefits, the plan’s exclusion of ABA therapy as experimental does not comply with MHPAEA.

Likewise, a plan does not comply with the MHPAEA where it defines experimental or investigative treatments as those with a rating below “B” in the Hayes Medical Technology Directory, but the plan reviews and covers certain treatments for medical/surgical conditions that have a rating of “C” on a treatment-by-treatment basis, while denying all benefits for MH/SUD treatment that have a rating of “C” or below, without reviewing the treatments to determine whether exceptions are appropriate. Although the text of the plan sets forth the same evidentiary standard for defining experimental as the Hayes Medical Directory ratings below “B,” the plan applies a different evidentiary standard, which is more stringent for MH/SUD benefits than for medical surgical benefits because the unconditional exclusion of treatments with a “C” rating for MH/SUD benefits is not comparable to the conditional exclusion of those treatments with a “C” rating for medical/surgical benefits. Because of the discrepant application of the evidentiary standard used by the plan, the fact that the plan ultimately denies some medical/surgical benefits that have a rating of “C” does not justify the total exclusion of treatments with a “C” rating for MH/SUD.

Dosage limits. The FAQs also provide that a plan does not comply with MHPAEA where it follows professionally-recognized treatment guidelines when setting dosage limits for prescription medications, but the dosage limit set by the plan for buprenorphine to treat opioid use disorder is less than what professionally-recognized treatment guidelines generally recommend. However, the dosage limits set by the plan with respect to medical/surgical benefits are not less than the limits such treatment guidelines recommend. If the plan follows the dosage recommendations in professionally-recognized treatment guidelines to set dosage limits for prescription drugs in its formulary to treat medical/surgical conditions, it must also follow comparable treatment guidelines, and apply them no more stringently, in setting dosage limits for prescription drugs, including buprenorphine, to treat MH/SUD conditions.

Particular condition or disorder. A large group health plan or large group insurance coverage that provides benefits for prescription drugs to treat both medical/surgical and MH/SUD conditions but contains a general exclusion for items and services to treat bipolar disorder, including prescription drugs, is permissible under the MHPAEA although if the plan is insured, it would depend on whether state law permits such an exclusion for large group insurance coverage. Generally, MHPAEA requires that treatment limitations imposed on MH/SUD benefits cannot be more restrictive than treatment limitations that apply to medical and surgical benefits. An exclusion of all benefits for a particular condition or disorder, however, is not a treatment limitation for purposes of the definition of “treatment limitations” in the MHPAEA regulations. Small employer group health insurance coverage and individual health insurance coverage are subject to the requirement to provide essential health benefits, and the determination of whether certain benefits must be covered under the requirements for essential health benefits depends on the benefits in the applicable State’s EHB benchmark plan.

Step therapy. The FAQs also address a situation where a health plan requires step therapy for both medical/surgical and MH/SUD in-patient, in-network benefits. The plan requires a participant to have two unsuccessful attempts at outpatient treatment in the past 12 months to be eligible for certain inpatient in-network SUD benefits. However, the plan only requires one unsuccessful attempt at outpatient treatment in the past 12 months to be eligible for inpatient, in-network medical/surgical benefits.

This is probably not permissible under the MHPAEA, according to the FAQs, because refusing to pay for a higher-cost therapy until it is shown that a lower-cost therapy is not effective (commonly known as “step therapy protocols” or “fail-first policies”) is an NQTL. Although the same NQTL – step therapy – is applied to both MH/SUD benefits and medical/surgical benefits for eligibility for inpatient, in-network services, the requirement for two attempts at outpatient treatment to be eligible for inpatient, in-network SUD benefits is a more stringent application of the NQTL than the requirement for one attempt at outpatient treatment to be eligible for inpatient, in-network medical/surgical benefits. Unless the plan can demonstrate that evidentiary standards or other factors were utilized comparably to develop and apply the differing step therapy requirements for these MH/SUD and medical/surgical benefits, this NQTL does not comply with the MHPAEA.

Reimbursement rates. A plan also does not comply with the MHPAEA where its plan documents state that in-network provider reimbursement rates are determined based on the providers’ required training, licensure, and expertise. However, medical/surgical benefits, reimbursement rates are generally the same for physicians and non-physician practitioners. For MH/SUD benefits, the plan pays reduced reimbursement rates for non-physician practitioners. While a plan is not required to pay identical provider reimbursement rates for medical/surgical and MH/SUD providers, a plan’s standards for admitting a provider to participate in a network (including the plan’s reimbursement rates for providers) is an NQTL.

ERISA disclosure. The FAQs also address several issues relating to ERISA disclosures for MH/SUD benefits. The MHPAEA final regulations provide express disclosure requirements. Specifically, the criteria for medical necessity determinations with respect to MH/SUD benefits must be made available by the plan administrator or the health insurance issuer to any current or potential participant, beneficiary, or contracting provider upon request. In addition, under MHPAEA, the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits must be made available to participants and beneficiaries.

Updated provider network. DOL regulations provide that, if an ERISA-covered plan utilizes a network, its SPD must provide a general description of the provider network. The list of providers in that SPD must be up-to-date, accurate, and complete (using reasonable efforts). The list may be provided as a separate document that accompanies the plan’s SPD if it is furnished automatically and without charge and the SPD contains a statement to that effect. Moreover, an ERISA-covered plan must disclose a summary of material modifications or changes in the information required to be included in the summary plan description not later than 210 calendar days after the close of the plan year in which the modification or change was adopted.

Information provided electronically. ERISA-covered plans and issuers that utilize provider networks are permitted to provide a hyperlink or URL address in enrollment and plan summary materials for a provider directory where information related to MH/SUD providers can be found. While ERISA-covered plans must provide an SPD that describes provisions governing the use of network providers, the composition of the provider network, and whether, and under what circumstances, coverage is provided for out-of-network services under ERISA Sec. 102 and the DOL’s implementing regulations, such information could be provided electronically, for instance in a hyperlink or URL address, provided the DOL’s electronic disclosure safe harbor requirements are met.

Revised draft model disclosure form. In addition, the Departments are soliciting comments on a revised draft model form that participants, enrollees, or their authorized representatives could — but would not be required to — use to request information from their health plan or issuer regarding nonquantitative treatment limitations that may affect their MH/SUD benefits, or to obtain documentation after an adverse benefit determination involving MH/SUD benefits to support an appeal. A draft form was issued on June 16, 2017, and based on the feedback received through that solicitation, the Departments have revised the form, which can be found at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/laws/mental-health-parity/mhpaea-disclosure-template-draft-revised.pdf.

Comments. Public comments are invited on the proposed FAQs and should be submitted by June 22, 2018, to E-OHPSCA-FAQ39@dol.gov.