"Unfortunately, the regulations then go on to invent alleged disclosure requirements under ERISA that do not exist," Delk writes.

Delk is asking the three bodies in charge of MHPAEA compliance — the Internal Revenue Service, the U.S. Department of Labor's Employee Benefits Security Administration, and the U.S. Department of Health and Human Services — to kill a disclosure form created by to implement the MHPAEA benefit plan design disclosure regulations, or at least to revise the form.

The Association for Behavioral Health and Wellness (ABHW), a group for behavioral health and wellness companies, is also asking the "tri agencies" to cut down on the amount of information the MHPAEA regulations and disclosure form require a plan to provide.

"There are better ways to inform consumers about how their plan is implementing parity without overwhelming them with thousands of pages of documentation," according to Pamela Greenberg, the ABHW president. "We support keeping the disclosure requirements at a level where consumers will understand the information they receive and will not be overwhelmed by a U-Haul truck of complex information."

Delk and Greenberg were writing to comment on an MHPAEA disclosure form the tri agencies have been developing. The DOL has posted copies of the comment letters here.

MHPAEA

The MHPAEA is a successor to an older mental health parity law, the Mental Health Parity Act of 1996.

Neither law requires any employer to offer behavioral health benefits.

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The 1996 law requires any affected employer that does offer mental health benefits to make the quantitative parameters for the medical benefits and the mental health benefits comparable.

Critics complained that plans were getting around the 1996 parity rules by making the quantitative parameters for medical care and mental health care similar, but watering down the "nonquantitative treatment limits" (NQTLs), such as the number and quality of in-network mental health care providers available.

The MHPAEA requires that, for an employer with more than 50 employees, both the quantitative care parameters and the nonquantitative care parameters to be comparable for medical care and behavioral health care.

In April 2016, tri-agency officials suggested, in what they framed as a response to a frequently asked question, that a behavioral health provider who is having trouble getting paid by a plan should ask the plan for extensive information, such as actuarial studies, to find out how it developed its medical health benefits and its behavioral health benefits.

Complexity

Many behavioral health providers have stopped taking insurance because of concerns about billing problems. The providers who still take insurance say they need all the help with understanding health plans and motivating plans to pay that they can get.

Janet Trautwein, the chief executive officer of the National Association of Health Underwriters, writes in a comment letter sent on behalf of NAHU that implementing the MHPAEA has been difficult for employers, in part because of the disclosure requirements. She notes that an employer plan must be prepared to provide information about the "processes, strategies, evidentiary standards and other factors" used to apply a nonquantitative treatment limit to either medical care or behavioral care benefit.

"One issue is that NQTLs are hard to understand and quantify," Trautwein writes. "NAHU believes that companies and entities that businesses engage for health plan administration assistance would greatly benefit from more official guidance from the Departments about what constitutes an NQTL and what are acceptable processes, strategies, evidentiary standards and other factors to apply NQTLs. We strongly urge you to include as many detailed examples as possible when developing any such guidance."

Trautwein offers many ideas for how to make the plan disclosure information easier for consumers to understand.

She writes, for example, that it appears that many people with group coverage are not aware of what kind of plan their employer provides.

The tri agencies should consider giving more information about different types of heath coverage, and advice about where to go for more information, in the introduction to the disclosure regulations, Trautwein writes.