Mental Health Parity Act: Biden Administration Issues Long-Awaited Rulemaking Cracking Down on Treatment Limitations

The nearly 400-page proposed rule, if adopted, would prohibit health plans and issuers from using nonquantitative treatment limitations (NQTLs) to place greater limits on access to mental health and substance use disorder benefits than on medical and surgical benefits. 

A link to the proposed rule is here. 

NQTLs refer to the nonnumerical tools that plans use to limit access to mental health and substance use disorder treatments. Common NQTLs include prior authorization requirements, step therapy, and standards for provider network participation admission. Provider-side advocates assert that NQTLs disproportionately restrict access to mental health and substance use disorder benefits (as compared to physical health benefits), in violation of MHPAEA. In support, these advocates point to the implementing regulations’ core protection, namely, that plan beneficiaries encounter no greater barriers to accessing treatment for mental health conditions or substance use disorders than they would for a medical or surgical procedure. The proposed rule, if adopted, would enhance the protection currently offered by regulation by requiring plans and issuers adopting NQTLs to collect, analyze, consider, and publish data relating to NQTLs and the ways that NQTLs affect plan benefits. 

Key Provisions

For all NQTLs, the proposed rule would require plans and issuers to collect and analyze data, ensuring that the NQTLs imposed on mental health and substance use disorder benefits are no more restrictive than those placed on medical or surgical benefits. This includes, among other things:

• Reviewing the number and percentage of relevant claims denials;
• Reviewing NQTL-related data collected to satisfy accreditation standards; and
• 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. Notably, the proposed rule would require plans and issuers to make the results of these analyses available to federal and state regulators. 

The proposed rule would also regulate NQTLs that specifically affect network composition. Practically, the existence of NQTLs often means that beneficiaries end up seeking out-of-network providers to access mental health and substance use disorder benefits. Under the proposed rule, plans imposing NQTLs that affect network composition standards would be required to collect and evaluate data related to in-network and out-of-network utilization rates (including claim submission data), network adequacy metrics (including time, distance, and new patient acceptance data), and provider reimbursement rates (as compared to billed charges). Should this data show material differences in access to in-network mental health and substance use disorder treatment benefits (as compared to in-network medical or surgical benefits), the Departments will presume that the plan or issuer has violated MHPAEA. 

In conjunction with the proposed rule, the Departments also issued a technical release containing additional principles on how plans should collect and evaluate data relating to NQTLs, as well as previewing future potential guidance on NQTLs. Of note, the technical release states that such guidance may include a safe harbor provision, allowing plans meeting the safe harbor requirements for NQTLs that affect network composition to avoid an enforcement action by the Departments for two years. 

Looking Ahead: Comment Period and Additional Guidance on the Horizon

The proposed rule is currently undergoing a 60-day public comment period during which plans and other stakeholders will weigh in on the proposed rule’s provisions. Meanwhile, the Departments have also issued a report to Congress focusing on the Departments’ prior enforcement efforts regarding NQTLs. 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.