On September 9, the US Departments of Labor, Treasury, and Health and Human Services (the Departments) jointly released a final rule to ensure that group health plans comply with the Mental Health Parity and Addiction Equity Act (MHPAEA). The final rule, which spans over 530 pages, limits the ability of group health plans to restrict coverage for mental health and substance use disorders compared to medical and surgical care. The final rule largely tracks the Departments’ July 2023 joint proposed rule but includes some changes.

A link to the final rule is here.

As detailed in a prior alert addressing the proposed rule, the final rule outlines the requirements for group health plans to collect and analyze data related to nonquantitative treatment limitations (NQTLs). NQTLs refer to the nonnumerical tools that plans may use to limit access to care and benefits for mental health and substance use disorders. Examples of NQTLs include prior authorization requirements, step therapy, and standards for provider network participation admission.

The final rule prohibits group health plans from using biased or non-objective information that could negatively impact access to mental health and substance use disorder care when applying NQTLs, and adds crucial protections against plans using more restrictive NQTLs for mental health and substance use disorders than for medical and surgical care. More specifically, as we discussed with respect to the proposed rule, the final rule requires plans and issuers to conduct the following analyses, among other things:

• Reviewing the number and percentage of relevant claims denials.
• Reviewing NQTL-related data collected to satisfy accreditation standards.
• Considering the effects of NQTLs on plan benefits.

To the extent that the data reveals material differences in access to mental health and substance use disorder treatment benefits, the proposed rule would require plans to take reasonable action to mitigate those differences. As with the proposed rule, the final rule requires that group health plans provide their NQTL analyses to state authorities and health plan participants upon request.

The final rule does depart from the 2023 proposed rule in one important respect. In the final rule, the Departments did not include a mechanism related to network compensation that would have required plans to analyze access to in-network mental health and substance use disorder care compared to medical and surgical care.

Looking Ahead: Additional Guidance and What Is on the Horizon

In addition to the final rule, the Departments have also issued a report to Congress focusing on their prior enforcement efforts regarding NQTLs. Separately, the Departments are reviewing comments collected on the technical release issued in July 2023, which provides guidance and principles on how plans should collect and evaluate data relating to NQTLs, and may issue future guidance responsive to those comments.

Aside from NQTLs, the Departments have signaled their intention to release additional MHPAEA guidance in the future. Thus, plans and issuers should carefully monitor for future developments and review plan provisions to ensure MHPAEA compliance.