I heard “new” mental health parity requirements regarding non-quantitative treatment limitations (NQTLs) went into effect this year. What are NQTLs? How does a plan comply with the requirements?

The Consolidated Appropriations Act of 2021 (CAA) amended the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) by imposing new obligations on group health plans. These additional requirements went into effect on February 10, 2021.

Under the MHPAEA, financial requirements (e.g., deductibles and copayments) and treatment limitations imposed on mental health or substance use disorder (MH/SUD) benefits cannot be more restrictive than those applied to medical/surgical benefits. Nor can separate treatment limitations be imposed only on MH/SUD benefits.

The MHPAEA applies not only to quantitative treatment limitations (e.g., number of visits or days of coverage), but also to non-quantitative treatment limitations (NQTLs) that affect the scope and duration of treatment. NQTLS include, but are not limited to:

• Medical management standards that limit or exclude benefits based on medical necessity
• Experimental treatment exclusions
• Prior authorization or ongoing authorization requirements
• Step therapy protocols (e.g., requiring lower cost drugs to be prescribed before more expensive options)
• Methods for determining usual, customary and reasonable charges for out-of-network (OON) services
• Standards for providing access to OON providers
• Standards for provider admission to participate in a network, including reimbursement rates
• Restrictions based on geographic location, facility type or provider specialty

Since the MHPAEA’s enactment, plan sponsors have been required to review the plan’s written terms and operations to ensure that the processes and standards applied to NQTLs for MH/SUD benefits are comparable to those applied to medical/surgical benefits. The following are examples of NQTLS that would appear to be problematic:

• MH/SUD pre-authorization requirements are stricter than those for medical/surgical benefits
• Medical necessity criteria apply differently to MH/SUD services as compared to medical/surgical services
• Concurrent review (i.e., review of the necessity of care while the patient is receiving treatment) or retrospective review (i.e., after treatment has been provided) occurs regularly for MH/SUD services but not for medical/surgical services
• OON reimbursement rates for MH/SUD services are based upon lower percentages of usual, customary and reasonable charges than the percentages used to determine medical/surgical OON reimbursement rates

Under the CAA, plans must conduct and document their NQTL comparative analysis and be prepared to provide it to federal or state regulators upon request. Additionally, the written analysis must be made available to participants upon request. Amongst other items, the analysis must describe each NQTL, the plan benefits to which the NQTL applies, and the factors (e.g., high variability in cost of care, lack of clinical efficacy of a treatment) and sources (e.g., internal claims analysis, medical expert review) upon which the NQTL is based.

For example, a plan that imposes a concurrent review requirement on certain treatments might explain that the NQTL was applied because of a lack of medical literature to support the treatment’s effectiveness. In such case, the plan documents and records must also show that the requirement was applied consistently to both MH/SUD services and medical/surgical services.

Accordingly, plan sponsors should consult with their carriers and/or third-party administrators to ensure that the required NQTL comparative analysis has been completed and is available in written form.

To learn more about the MHPAEA requirements, please review our recent Compliance Corner article Federal Health Updates.