Technical Release on Network Composition Accompanies Proposed MHPAEA Rule

On July 25, 2023, the DOL issued a technical release accompanying the MHPAEA proposed rules (Please see our article entitled Departments Announce Proposed Rules to Strengthen MHPAEA, also featured in this edition of Compliance Corner.)

The technical release explains the NQTL-related data group health plans and health insurance insurers must collect and evaluate to demonstrate compliance in regard to network composition. The release also requests public comments on the application of such data.

In providing future guidance, the DOL, HHS, and IRS (the departments) seek to (1) address the type, form, and manner of data that plans and insurers would be required to collect and evaluate as part of their NQTL analysis of network composition; and (2) define standards for the data elements and create an enforcement safe harbor for plans and insurers that provide data indicating that they meet or exceed standards related to network composition.

The safe harbor would be designed to allow plans and insurers to prove that plan participants, beneficiaries, and enrollees have comparable access to in-network mental health/substance use disorder (MH/SUD) and medical/surgical (MED/SURG) providers.

There are four specific types of data that the departments will potentially require plans and insurers to collect regarding NQTLs related to network composition:

1. Out-of-network utilization
2. Percentage of in-network providers actively submitting claims
3. Time and distance standards
4. Reimbursement rates

For each type of data, the departments explain the relevant data and provide a number of questions that they would like addressed by public comments. Importantly, the departments are considering requiring the relevant data to be collected and evaluated by TPAs or other service providers in the aggregate for all plans and policies that use the same network of providers or reimbursement rates. If the proposed rules are finalized, the departments will use the four types of data above to determine if a plan’s or insurer’s NQTLs related to network adequacy comply with MHPAEA.

The departments plan to provide a potential enforcement safe harbor for plans and insurers that meet or exceed specific standards established by future guidance. The NQTLs addressed by the safe harbor would be limited to those related to network composition and would include standards for provider and facility admission to and continuation in a network, methods for determining reimbursement rates, credentialing standards, and procedures for ensuring the network includes adequate numbers of service providers and facilities. The departments are also seeking comment on the potential enforcement safe harbor.

This technical release provides plans and insurers with more concrete information surrounding the data that’s necessary to prove compliance with MHPAEA in regard to network composition. As the departments receive comments, we expect that they will update and amend this information as they finalize the proposed rule and create the enforcement safe harbor. Comments must be emailed to mhpaea.rfc.ebsa@dol.gov and must be received no later than October 2, 2023.

Technical Release 2023-01P »