New MHPAEA FAQs On Comparative Analyses Requirements

On April 2, the U.S. Department of Labor released highly anticipated new Mental Health Parity and Addiction Equity Act (MHPAEA) FAQs on comparative analyses requirements. These FAQs follow the February 10, 2021, effective date of the Consolidated Appropriations Act 2021 amendments to the MHPAEA.

The amendments affect group health plans and health insurance issuers (health plans and issuers) that provide both medical and surgical benefits and mental health or substance use disorder benefits which impose nonquantitative treatment limitations (NQTL) on those benefits. Among other things, the amendments require health plans and issuers to perform and provide, at the request of federal or state agencies, comparative analyses of each plan’s NQTL, documenting compliance with the MHPAEA. Further, the amendments require state and federal agencies to request such comparative analyses from at least 20 health plans and issuers each year.

The amendments provide federal regulators until June 2022 to develop rules regarding these new changes, leaving health plans and issuers with little guidance on how they should comply. However, the FAQs were provided to clarify certain aspects of these new requirements.

The April 2 FAQs are available here, and a summary is below.

• Comparative analyses inclusions: “Plans and issuers should ensure that comparative analyses are sufficiently specific, detailed, and reasoned to demonstrate whether the processes, strategies, evidentiary standards, or other factors used in developing and applying an NQTL are comparable and applied no more stringently to MH/SUD benefits than to medical/surgical benefits.” The FAQ specifies that general statements or general references to policies, strategies, etc. will be considered insufficient. The FAQ lists out nine elements that, as a minimum, must be included. This quoted list includes elements such as:
  • A clear description of the specific NQTL, plan terms, and policies at issue
  • Identification of the specific MH/SUD and medical/surgical benefits to which the NQTL applies within each benefit classification
  • Identification of any factors, evidentiary standards or sources, or strategies or processes considered in the design or application of the NQTL and in determining which benefits
• Practices to avoid in comparative analyses: The FAQ lists certain practices to avoid when providing comparative analyses:
  • Unexplained production of a large volume of documents
  • Conclusory or generalized statements
  • Identification of processes, factors or strategies without completing a comparative analysis or without providing relevant definitions or data
  • Outdated analyses, or analyses based on outdated information
• Other documents that agencies may request from plans: Agencies can request documents to support the comparative analyses. These may include:
  • Records documenting processes on NQTL application to certain procedures
  • Documents the plan relied on when determining NQTL application
  • Samples of covered and denied MH/SUD claims
  • Documents related to compliance if some or all of a plan’s MH/SUD benefits are managed by another entity
• Department actions if a plan’s comparative analyses are insufficient or show non-compliance: If a plan’s comparative analyses are found to be insufficient, the Department will request additional information. If a plan is found to be out of compliance, it will have 45 days to submit a new comparative analysis showing compliance. If it still is found to be out of compliance, it will be required to notify all enrollees that the coverage is out of compliance.
• Who can request a comparative analyses: Participants, beneficiaries, enrollees (including authorized representatives) and state regulators may all request comparative analyses.
• NQTLs that the Department intends to focus on: The Department will likely request comparative analyses on NQTLs that have been subject to a complaint or possible violation. Other areas of focus include prior authorization requirements, concurrent review, standards for provider admission to a network and out-of-network reimbursement rates.