The Employee Benefits Security Administration (EBSA) has updated its website with revisions to the Mental Health Parity web page. Material on the web page now includes a revised Mental Health Parity Part of the Self Compliance Tool and a revised Mental Health Parity Provisions Questions and Answers in an updated Compliance Assistance Guide that includes new provisions for the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148).
Self-Compliance Tool. The Self-Compliance Tool contains a summary of the statute, recent regulations, and other departmental guidance. It assists group health plans, plan sponsors, plan administrators, and health insurance issuers, among others, in determining if their group health plan complies with certain provisions of Part 7 of ERISA. It is only meant to give users a basic understanding of ERISA in order to carry out plan-related responsibilities, and it is not to be considered legal advice.
Compliance Guide. The Compliance Guide contains information for group health plans and issuers regarding the ACA, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Mental Health Parity and Addiction Equity Act (MHPAEA) and the Mental Health Parity Act (MHPA). The Mental Health Parity provisions for the latter contain new material in a question-and-answer format. The Compliance Guide also contains information on the Newborns’ and Mothers’Health Protection Act of 1996 (the Newborns’ Act), the Women’s Health and Cancer Rights Act of 1998 (WHCRA), and the Genetic Information Nondiscrimination Act of 2008 (GINA).
Updated mental health parity material. Final regulations implementing the MHPAEA were issued by the EBSA, the HHS, and the IRS on November 8, 2013, and they are applicable for plan years beginning on or after July 1, 2014. While the MHPA required parity for aggregate lifetime and annual dollar limits between mental health benefits and medical/surgical benefits, the MHPAEA expanded on that required parity to include substance use disorder benefits, although the ACA now prohibits lifetime and annual limits on essential health benefits. The MHPAEA also obliges group health plans to make copays and deductibles, along with visit limits no more restrictive for mental health or substance use disorder benefits than they are for medical/surgical benefits.
Although the MHPAEA applies to most employment-based group health coverage, it contains an exemption for group health plans of small employers. Nevertheless, HHS final regulations (78 FR 12834) provide that coverage in the individual and small group markets must provide all categories of essential health benefits, and these would include mental health and substance use disorder benefits. Those benefits must, in turn, be provided in compliance with the MHPAEA.
The Compliance Guide explains that group health plans may still apply financial requirements and treatment limitations to mental health and substance use disorder benefits in any classification, but not if the limitations are more restrictive than the predominant limitations of that type applied to substantially all (2/3 or more) medical/surgical benefits in that same classification. The six classifications of benefits under the MHPAEA are: (1) inpatient in-network, (2) inpatient out-of-network, (3) outpatient in-network, (4) outpatient out-of-network, (5) emergency care, and (6) prescription drugs.
The Compliance Guide also explains that plans may impose a copay for mental health or substance use disorder benefits, but the determination of the portion of medical/surgical benefits in the relevant classification subject to the copay would be based on the dollar amount of all plan payments for medical/surgical benefits in that classification expected to be paid under the plan for the plan year.
Sub-classifications can be used within the six classifications listed above in only two ways. First, plans can sub-divide the outpatient classification into office visits and all other outpatient services. Second, in-network classifications for plans with multiple network tiers can be sub-divided if the tiering is based on reasonable factors without regard to whether a provider is a mental health and substance use disorder provider or a medical/surgical provider.
Prescriptions and deductibles. With regard to prescription drug benefits, plans may apply different levels of financial requirements to different tiers, but only under the following conditions: (1) the tiering must be based on reasonable factors, including cost, efficacy, generic versus brand name, and mail order versus pharmacy pick-up; and (2) both the tiering and financial requirements must be made without regard to whether or not a drug is prescribed for a medical/surgical condition or a mental health or substance use disorder condition.
Separate deductibles for medical/surgical benefits and mental health or substance use disorder benefits are no longer allowed. However, the Compliance Guide advises that plans can choose how to implement a combined deductible, so that, for example, if a plan used to have a $500 deductible for each, it can now have a combined $750 deductible for all benefits.
Nonquantitative treatment limitations. Nonquantitative treatment limitations may not be imposed on mental health or substance use disorder benefits in any classification more stringently than they are applied to medical surgical benefits. Nonquantitative treatment limitations include, but are not limited to: (1) medical management standards limiting benefits based on medical necessity or appropriateness or the experimental or investigative nature of a treatment; (2) formulary design for prescription drugs; (3) network tier design; (4) standards for provider admission to a network; (5) the determination of usual, customary, and reasonable charges; (6) fail-first policies requiring a showing that a lower-cost therapy is ineffective before a higher-cost therapy is paid (7) exclusions based on failure to complete a course of treatment; and (8) geographic, facility type, or provider specialty restrictions limiting the scope or duration of benefits.
The updated material can be found athttp://www.dol.gov/ebsa/pdf/cagappa.pdf, http://www.dol.gov/ebsa/pdf/cagmhpaea.pdf, and http://www.dol.gov/ebsa/publications/CAG.html .