Biden administration still has mental parity regs in pipeline

The Biden administration has already completed most of the health benefits regulatory projects on its to-do lists, but it’s still polishing a major set of behavioral health regulations.

The Centers for Medicare and Medicaid Services and the Internal Revenue Service are completing an update to the regulations implementing the federal Mental Health Parity and Addiction Equity Act, or MHPAEA, and the Consolidated Appropriations Act, 2021.

CMS is part of the U.S. Department of Health and Human Services, and the IRS is part of the U.S. Treasury Department.

CMS included final action on the MHPAEA and CAA, 2021 regulations in its section of the official HHS semiannual regulatory agenda that appeared in the Federal Register Thursday.

The IRS lists the MHPAEA and CAA, 2021 project in its section of the Treasury Department’s semiannual regulatory agenda.

Both CMS and the IRS say the final behavioral health regulation update was due in July.

The U.S. Department of Labor, which has participated in the behavioral health regulation update in the past and has included the project in its own semiannual regulatory agendas in the past, did not include the project in the agenda that it published Thursday.

The department did put the project on an earlier version of its agenda that it posted July 7.

The background

Federal laws require group health plans that cover mental health care and addiction treatment to cover behavioral health care roughly the same way they cover other forms of health care.

One part of the eagerly awaited final regulation is expected to discuss how employer-sponsored health plans and health insurers should handle “non-quantitative treatment limits,” such as requirements that patients get prior authorization from their plans before seeking certain types of therapy or inpatient care.

Chris Condeluci, a longtime health benefits policy law specialist, suggested in a blog for Benefitfocus.com that the parity regulation update will be of keen interest to health care sector stakeholders.

“The employer and insurance carrier communities have been vocal about the inability and difficulty to comply with the proposed definitions and mathematical tests used to determine whether an appropriate level of comparability is present,” Condeluci writes.

Loper Bright

The arrival of the new final regulation update could also be a test of how federal agencies will apply the U.S. Supreme Court’s ruling on Loper Bright Enterprises v. Raimondo.

The court used the case, which involved enforcement of fishing regulations, to throw out the Chevron precedent, which previously required the federal courts to defer to the judgment of federal agencies in most cases when federal agencies were interpreting their own regulations.

Related: Supreme Court ruling could soften upcoming mental health parity regulations

Employer groups have questioned whether federal agencies have gone beyond the authority provided by federal statutes in establishing the non-quantitative treatment limit guidelines.

The absence of the parity project from the Labor Department’s regulatory agenda could be the result of an oversight or the department’s view that the project is already complete. It could also be a sign that the Loper Bright ruling has caused it to change its level of participation on the parity regulation update team.