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On Tuesday, July 25th, the Federal Departments issued proposed regulations and a Technical Release that seek to increase patient access and coverage to mental health and substance abuse disorder services, in parity with coverage for medical and surgical services.
The Federal Departments also released a Report to Congress detailing (1) enforcement of the Non-Quantitative Treatment Limitations (NQTL) analyses requirement and (2) the Departments’ findings of non-compliance through illustrative examples that even include names of certain entities failing to comply with the Mental Health Parity Act and NQTL requirement.
The proposed rules, Technical Release, and Report to Congress, along with accompanying fact sheets, can be found here.
Proposed Rule
The proposed rule would make clear that self-insured and fully-insured health plans need to evaluate the outcomes of their plans’ coverage to make sure participants have equivalent access between their mental health and substance abuse disorder (MH/SUD) services and medical and surgical (M/S) services. This includes evaluating the plans’ actual provider network, how much it pays out-of-network providers, and how often prior authorization is required and the rate at which prior authorization requests are denied.
All of this information would be required to be included in a self-insured plan’s and insurance carrier’s NQTL analyses, which – as the Administration explains – will help Federal and State regulators determine compliance with the Mental Health Parity Act and NQTL requirement, and which the Administration believes will improve access to MH/SUD services.
The proposed regulations explain and provide examples demonstrating that plans/carriers cannot impose more restrictive prior authorization requirements and medical management techniques, and also, limited network accessibility, for MH/SUD services relative to M/S services. The proposed rules would also require plans/carriers to use similar factors in setting out-of-network payment rates for MH/SUD providers as they do for M/S providers.
Consistent with legislation enacted by Congress last year, the proposed rules also confirm that the NQTL analyses requirement applies to self-funded, non-Federal governmental health plans, such as local and state government plans.
Note, the preamble explains that there are approximately 250,000 self-insured group health plans with 50 or more participants that are affected by the proposed rules. The Departments further explain that in cases where a TPA or service provider offers a self-insured plan various plan designs that are nearly identical to fully-insured plans, the TPA or service provider working with the self-insured plan could utilize the NQTL analyses already performed for those fully-insured plans to help the self-insured plan comply with the NQTL requirement. The Departments request comments on the percent of self-insured plans that would rely on the NQTL analyses that TPAs and other service providers have already performed for their other plans and whether such reliance would reduce estimated burdens on self-insured plans.
Technical Release
The Technical Release requests public comments on the type of data and information plans/carriers should include in their existing NQTL analyses that will help the Federal Departments determine whether the plans/carriers have an adequate “network composition” of MH/SUD providers.
More specifically, in an effort to ensure that plan participants have access to an appropriate number of MH/SUD providers, the Departments are requesting comments on the type, form, and manner of data that should be required to be collected and evaluated to make such a determination.
The Technical Release outlines four specific types of data that Federal Departments believe plans/carriers should collect and include in their NQTL analyses to evaluate the plans’/carriers’ access to in-network MH/SUD providers in comparison to in-network M/S providers, including:
(1) Out-of-network utilization; (2) Percentage of in-network providers actively submitting claims; (3) Time and distance standards; and (4) Reimbursement rates.
If future guidance is issued, the Departments will specify that the data would need to be collected and evaluated in the aggregate for all plans or policies using the same network of providers or schedule of reimbursement rates.
Next Steps
A strong argument can be made that the proposed regulations and accompanying Technical Release represent a significant shift in enforcement of the Mental Health Parity Act, shifting from (1) an enforcement policy of ensuring compliance with the Act to (2) an enforcement policy of ensuring access to MH/SUD services.
Stakeholders on both sides of these issues will certainly have a lot to say on whether these proposed requirements should or should not be finalized. With such a significant shift in enforcement policy, legal challenges may be filed to halt the regulations from ever going into effect.
SIIA’s Government Affairs Team will continue to monitor the process. Should you have any questions or if you would like to talk further about these issues, please contact Chris Condeluci at ccondeluci@siia.org or Ryan Work at rwork@siia.org.
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