Mental Health Request for Public Comment Spoiler Alert – The Departments Need Help

Seyfarth Synopsis: The Mental Health Parity and Addiction Equity Act (MHPAEA) requires group health plans and insurers to cover treatments for mental health and substance use disorders in a manner that is equitable to the plans' coverage of medical and surgical treatments. Exactly how that is accomplished and how compliance is proven have been the subject of prescriptive yet ambiguous guidance for several years. The agencies seemingly have been as frustrated as plan sponsors when trying to unearth what plans are, in fact, covering. And, the uncertainty in the area has resulted in numerous lawsuits from legal providers and participants against plans and insurers. 

Recently, the Departments of the Treasury ("Treasury Department"), Labor ("DOL"), and Health and Human Services ("HHS") (the "Departments") released their second report to Congress on plans compliance with MHPAEA, as well as new proposed regulations and a technical release seeking input from stakeholders. 

The voluminous nature of the Department actions make it unwieldy for us to cover them all in a single alert. So, instead we will break down the guidance for you in a series of three alerts focused on:

• Proposed Regulations
• Technical Release
• Congressional Report

This alert focuses on the technical release issued by the DOL. 

On July 25, 2023, contemporaneous with the release of newly proposed Mental Health Parity and Addiction Equity Act (MPHAEA) regulations and a report to Congress, the DOL issued a Technical Release (the “TR”) which seeks public comment about the collection of data that plans and issuers would be required to collect and evaluate for NQTLs related to network composition, and requests input on the development of an enforcement safe harbor for plans and issuers that submit data indicating that their MH/SUD provider networks are comparable to networks for M/S providers.  Public comments must be received no later than October 2, 2023.  The TR specifies that any guidance or regulations issued pursuant to the information collected would have a future effective date (i.e., a date that follows the issuance of regulations). 

In the TR, the DOL identified four specific types of data that they may require plans and issuers to collect and evaluate as part of their comparative analyses for NQTLs related to network composition:

1. Out-of-network utilization. The DOL would require plans that impose NQTLs related to network composition to collect and evaluate relevant data for a period of several years preceding the start of the plan year relating to the percentage of covered and submitted out-of-network claims for MH/SUD benefits as compared to M/S benefits. If the data shows material difference in access, that would constitute a failure to comply with the MHPAEA.
2. Percentage of in-network providers actively submitting claims. The DOL would require plans to collect and evaluate data on the percentage of in-network providers actively submitting claims for a period of time leading up to the date the comparative analysis was performed (so that the DOL can compare “active” network rates as opposed to “ghost networks” that reflect providers are technically in-network but who are not actually providing services to plan participants). The DOL would view a variation in percentages (between medical/surgical v. MH/SUD) to constitute a violation of the MHPAEA.
3. Time and distance standards. The DOL proposes requiring plans to collect data on the percentage of participants that would be able to access providers of specified types within a certain time and distance. If the data shows material difference in access, that would constitute a failure to of the related network composition to comply with the MHPAEA.
4. Reimbursement rates. The DOL proposes requiring plans to collect data on reimbursement rates for purposes of comparing whether MH/SUD services are being reimbursed commensurate with medical/surgical services. If the data shows material difference in access, that would constitute a failure of the network composition to comply with the MHPAEA.

Because much of the above data would be unavailable to the plan sponsor, and because TPA/carrier level data would be more representative, the DOL is considering a proposal that would involve plan sponsors working with their TPA to acquire aggregate data for reporting purposes. 

Safe Harbor for NQTLs Related to Network Composition

The DOL is considering implementing a safe harbor for plans that meet certain yet-to-be-specified data metrics relating to network adequacy.  If adopted, the safe harbor would extend two years from the date the comparative analysis is requested  (or for such timeframe as specified in future guidance). 

Next Steps and Key Take-Aways 

While the TR is too generic to be immediately actionable, the DOL seems to be strongly trending toward requiring plans to collect and have available significant amounts of data relating to network adequacy.  Plans should commence discussions with their TPAs on data availability and/or consider implementing contractual language that would provide access rights to such data.  We will continue to monitor any future guidance and provide an update at a future date.