By: Kendall Jackson, Esq.

The deadline to comply with several of the new final rules regarding the Mental Health Parity and Addiction Equity Act (“MHPAEA”) is quickly approaching. On September 9, 2024, the U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury released new final rules that updated existing regulations to provide additional clarity for plans and their vendors on what is required and what will be considered compliant and non-compliant for parity purposes when performing a nonquantitative treatment limitation (NQTL) comparative analysis. The final rules generally apply to group health plans, including self-funded non-Federal governmental health plans that, prior to the issuance of these rules, were able to opt out of MHPAEA compliance. The extension of MHPAEA’s application to self-funded non-Federal governmental health plans is beneficial to ensure that no plan may impose an NQTL with respect to mental health or substance use disorder (“MH/SUD”) benefits in any classification that is more restrictive, as written or in operation, than the predominant NQTL that applies to substantially all medical/surgical (“M/S”) benefits in the same classification. Of the newly outlined rules, most apply to group health plans on the first day of the first plan year beginning on or after January 1, 2025.

The final rules codify that health plans must perform a comparative analysis, which must include an evaluation of NQTLs for network composition, out-of-network reimbursement rates, medical management standards, and prior authorization, as well as six additional elements, such as a description of the NQTL, identification of and definitions for the factors and evidentiary standards used to design or apply the NQTL, and a description of how factors are used in the design or application of the NQTL. The final rules also outline certain responsibilities for plan fiduciaries. The final rules require certification confirming the plan fiduciary’s engagement in a prudent process to select one or more qualified service providers to perform and document a comparative analysis in connection with the imposition of any NQTLs that apply to MH/SUD benefits under the plan in accordance with MHPAEA and its implementing regulations, as well as satisfaction of the duty to monitor those service providers. At a minimum, the Department of Labor expects that the plan fiduciary will review the comparative analysis, ask questions about the results, discuss the results with those who drafted it, if necessary, and ensure that the service provider conducted the comparative analysis in compliance with MHPAEA.

Separate from those requirements listed above, the implementation of several other requirements is delayed until January 1, 2026. This includes the meaningful benefits standard, which requires that if a plan provides any benefits for an MH/SUD condition in any of the six benefit classifications, it must provide “meaningful benefits” for that condition or disorder in every classification in which meaningful M/S benefits are provided. Also delayed are the regulations requiring plans to satisfy the design and application requirements, which include the prohibition on discriminatory factors and evidentiary standards, and the relevant data evaluation requirements, which involve collecting and evaluating relevant data to assess the impact of NQTLs on access to MH/SUD benefits and M/S benefits. Any requirements for the provisions of the comparative analyses related to the delayed requirements are also deferred until January 1, 2026.

While several of these new requirements are not applicable for quite some time, plans that cover both M/S benefits and MH/SUD benefits and impose NQTLs on MH/SUD benefits should be sure to perform and document a comparative analysis of the design and application of each applicable NQTL in a manner consistent with the new final rules. The Departments have yet to provide how often these comparative analyses should be performed, but rather state that they should be kept current. We generally interpret this to mean that they should be performed annually based on the fact that the plan is updated annually.