Now that the tri-agency has pulled back the curtains to reveal some of the inner workings of their Mental Health Parity and Substance Abuse Equity (MHPAEA) law enforcement efforts , the question is: what is the next step?
Group health plans and health insurance issuers have been operating on limited guidance since the 2021 Consolidated Appropriations Act (CAA) amendments to the MHPAEA set in motion the current review process. comparative analysis of non-quantitative processing limitation (NQTL). The Tri-Agency MHPAEA 2022 Annual Report provided further clarification regarding enforcement priorities and the most common deficiencies identified during the reviews (summarized in Crowell’s 2022 MHPAEA Annual Report Client Alert ). But the guidance preceding the 2022 report was limited: the statute sets out five basic elements under 29 USC § 1185a(a)(8) and 42 USC § 300gg-26(a)(8), Part 45 of the The Tri-Agency FAQs provide some additional detail, and the DOL Self-Compliance Tool – which was published as a set of recommendations and best practices but not mandatory requirements – remains the best indication of this. what NQTL compliance should look like. The outcome of this limited advice was predictable. The 2022 report demonstrated that group health plans and health insurance issuers were unable to guess government expectations for NQTL benchmarking, and not one the benchmarking reviewed was initially found to be compliant.
Further clarifications, in one form or another, appear to be underway. One of the most important next steps will be for the agency to issue additional guidance or develop rules. The CAA MHPAEA Amendment codified at 29 USC § 1185a(a)(8) and 42 USC § 300gg-26(a)(8) requires additional “guidance” clarifying certain aspects of the application of the MHPAEA. The relevant legislative text, under the heading “Compliance Program Guidance Document Update Process“, we read:
“No later than 18 months after December 27, 2020, the Secretary will finalize any draft or interim guidance and regulations related to mental health parity under this section. This draft guidance will include guidance to clarify the process and timeline for current and potential participants and beneficiaries (and authorized representatives and health care providers of such participants and beneficiaries) with respect to complaint filing plans. against those plans or issuers that violate this Section, including guidance, by type of plan, about the state, regional, or national office to which such complaints should be filed. »
If the legal deadline is met, it means that the clarification guidelines or rules should be finalized by June 27 this year. With that date rapidly approaching – and no clarifying guidelines or regulations being offered at this time – time is running out for the full rule-making process to take its course. This could mean that any additional guidance will not take the form of formal regulation. This could mean that a clarifying rule will be proposed very soon. Or it could mean that clarifying guidelines or regulations will not meet the legal deadline. Recent precedent suggests that the latter option is a real possibility; the 2022 report itself was delivered a month late.
For their part, the three agencies have listed the MHPAEA on their summer 2022 regulatory agenda. The Departments of Health and Human Services and Labor noted that an upcoming notice of proposed rulemaking is scheduled for July of this year to clarify plans. ‘ and the obligations of issuers under the law.
Even if this additional guidance is provided after the statutory deadline, it should mark an important step forward for the three agencies. Given the extensive data and analysis collected from plans and issuers so far, we hope that the three bodies now have a more complete understanding of how the relevant NQTLs are structured and can provide more detailed explanations of how whose benchmarking can achieve compliance without first facing a deficiency. notices or determinations of non-compliance. Although the only additional indications mandatory by law relates to explaining the means by which “participants and potential beneficiaries” can file complaints regarding violations of the NQTL requirements by schemes or issuers, the three bodies appear to be aware that schemes and issuers need more clarity on how to comply with the MHPAEA, especially the CAA amendments.
In any event, the Crowell Health Solutions team will closely monitor any developments or proposed rules.
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Crowell Health Solutions is a strategic consulting firm that helps clients research and deliver innovative alternatives to traditional approaches to delivering and paying for healthcare, including through digital health, health equity and value-based health care. Through our key services – strategic advice, policy advice and engagement, compliance advice and coalition building – we help our clients bring pioneering products and services to market, structure collaborations and business agreements focused on results and advance policy priorities in the complex and rapidly changing field. healthcare environment.