On April 23, 2018, the Departments of Labor, Health and Human Services and Treasury jointly published proposed FAQs regarding Mental Health Parity and Addiction Equity Act (MHPAEA). These FAQs were issued in response to a directive in the 21st Century Cures Act (Cures Act) to solicit feedback and issuance clarifying information and illustrative examples regarding nonquantitative treatment limitations (NQTLs) in health plans related to treatment of mental health and substance use disorders (MH/SUDs).
As a reminder, the MHPAEA requires health plans to provide parity with respect to financial requirements as well as NQTLs. In the case of the latter, a plan may not impose an NQTL with respect to MH/SUD benefits in any classification unless, under the terms of the plan as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits are comparable to, and are applied no more stringently than the processes, strategies, evidentiary standards, or other factors used in applying the limitation to similarly classified medical/surgical benefits.
The FAQs give examples of the following plan terms that are permissible under the MHPAEA:
- Exclusions for treatments that are experimental or investigational as defined in the plan, provided the plan, in practice applies those definitions to MH/SUDs in the same way it does for medical conditions.
- Limitations on medication dosages following professionally-recognized treatment guidelines.
- Limitations on medication dosages using so-called Pharmacy and Therapeutics (P&T) committees to decide how to cover prescription drugs and evaluate whether to follow or deviate from professionally-recognized treatment guidelines for setting dosage limits. However, the same evaluation should be given for drugs that treat medical conditions and the members of the committee should be equally qualified to evaluate MD/SUD drugs.
- Exclusions that apply to all treatment for a specific condition, for example, bipolar disorders.
- Use of step therapy protocols as a medical management technique. This illustration is interesting in that it highlights a particular feature of comparability analysis. In the example, the plan required two unsuccessful attempts at out-patient therapy for an MH/SUD to be eligible for inpatient benefits but only one attempt at out-patient therapy for medical benefits. On its face, this violates comparability requirements but may be permissible if the plan can demonstrate that the processes, strategies, evidentiary standards and other factors were utilized comparably to develop and apply the differing step therapy requirements for these MH/SUD and medical/surgical benefits.
The mantra of comparable processes, strategies, evidentiary standards and other factors shows up in other examples regarding reimbursement rates for physician vs. non-physician practitioners, evaluations of network adequacy, and restrictions based on facility type. In each case, greater restrictions imposed on treatment of MH/SUDs are not permitted unless the processes, strategies, evidentiary standards, and other factors considered by the plan in implementing its exclusion or restriction with respect to MH/SUD benefits are comparable to and applied no more stringently than, those used in applying the NQTL to medical/surgical benefits in the same classification.
The FAQ also notes that plans are required to maintain an up-to-date listing of in-network providers (which it may do by linking to a website.)