Mental Health Parity and Addiction Equity Act, part 4: the process

This is the last in a four-part series from MZQ Consulting Benefits Compliance that examines the long and ongoing journey to achieving better outcomes for mental health and addiction in the U.S. health care systems. The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) is a federal law that generally prevents group health plans and health insurance issuers that provide mental health and substance use disorder (MH/SUD) benefits from imposing less favorable benefit limitations on those benefits than on medical/surgical coverage.

As easy as that is to articulate, achieving those objectives continues to be challenging. In particular, it can be daunting and confusing for employers and plans to understand and to report on, especially since the process seems to be ever-changing.

In the previous articles in this series, we’ve discussed the MPHAEA, NQTLs, and some obstacles and solutions encountered by plan sponsors who must comply with reporting regulations. In part four, we will attempt to explain the actual process. How will plan sponsors and employers go about actually doing what is necessary? Will they try it themselves? Will they assume someone else will do it on their behalf? Will they proactively reach out to experienced vendors with a proven track record of success? It could be any of those options, but no employer should dismiss the fact that this is a requirement and that there are repercussions for non-compliance.

In reality, it would be a heavy lift for an employer to attempt and complete a comparative analysis on their own. Even though the Department of Labor (DOL) has provided a self-compliance tool on its website, applying it along with the guidance still has issues.

In general, we know six steps need to be followed:

1. Specify the specific plan or coverage terms or other relevant terms regarding the NQTL that apply to such plan or coverage. A description of all mental health or substance use disorders and medical or surgical benefits must be provided, indicating how the NQTL applies or does not apply.
2. Identify the factors used to determine that the NQTL will apply to mental health or substance use disorder benefits and medical or surgical benefits.
3. When applicable, provide the evidentiary standards used for the factors identified in step two.
4. Describe the methods and analysis used to determine that the processes, strategies, and evidentiary standards used to apply the NQTL to mental health or substance use disorder benefits, as written and in operation, are comparable to and are applied no more stringently than the processes, strategies, and evidentiary standards used to apply the NQTLs to medical or surgical benefits.
5. Provide the specific findings and conclusions the plan or issuer reached concerning the NQTL.
6. Provide a detailed explanation of why any difference between the NQTLs applied to mental health or substance use disorder benefits and medical or surgical benefits is or is not necessary to meet the legitimate business, clinical, or other purposes relied upon for the NQTLs.

Relatively simple, right? Six steps to a successful analysis. Well, not so much. There is a lot of research and data to digest and then put on paper. And remember, these analyses need to be provided upon request. The process to actually file is another cumbersome task with many steps involved.

So, the stark reality is that employers have a business to run and don’t have the wherewithal to complete the job correctly. So, who does? We will answer that in a moment, but for now, please understand that;

• CMS will continue to request at least 20 NQTL comparative analyses each year from issuers in those states where CMS directly enforces the MHPAEA.
• CMS will request an NQTL comparative analysis in the following circumstances:

1. If it is determined that a plan involves a potential MHPAEA violation.
2. If a complaint has been received regarding potential non-compliance.
3. In any other circumstance or instance that CMS deems appropriate.

Enforcement will continue to be emphasized, with a few of the following recommendations being sent to Congress:

• Implement civil monetary penalties for parity violations.
• Amend ERISA to expressly provide EBSA with the authority to directly pursue third parties that provide administrative services to group health plans for parity violations.
• Amend ERISA to expressly provide participants and beneficiaries with the ability to recover amounts for parity violations.
• Expand access to telehealth and remote care services.

The proposed rule issued in July of 2023 called for:

• Guidance on the content required for disclosures to members if a plan receives a final determination of non-compliance with MHPAEA. The disclosure must indicate the plan is non-compliant, include a summary of corrective changes, and explain how the beneficiary can get a re-processed claim.
• Allow the Tri-Agencies to direct the plan or issuer not to impose the NQTL unless and until the plan and issuer demonstrate compliance or remedy the violation.

Doing NQTL comparative analyses on behalf of clients is a choreographed process that must be performed by compliance experts familiar with the nuances and requirements set forth by the regulations. The right partner can perform the complex task of doing the work necessary so that employers can focus on their daily and usual activities.

Dave Mordo is senior compliance advisor at MZQ Consulting. For questions or more information, please email us at engage@mzqconsulting.com.