On September 5, the Departments of Labor, the Treasury, and Health & Human Services (collectively, the Departments) published an advance copy of the long-awaited and much anticipated mental health parity final regulations. The publication spans some 536 pages and the final regulations hew closely to a 2023 proposed regulation that garnered 9,503 public comments from diverse stakeholders. The stated purpose of the final regulations is to ensure that participants and beneficiaries in a group health plan or in group health insurance coverage offered by a health insurance issuer that offers mental health or substance use disorder (MH/SUD) benefits are not subject to greater restrictions when seeking those benefits than when seeking medical/surgical (M/S) benefits under the terms of the plan or coverage. 

While the rule's primary impact is on employer sponsored group health plans, it is not clear that health plans' voices were heard, based on the content of the rule. While some of the more objectionable features of the proposed regulations were not finalized, their basic structure remains fully intact, including provisions that employers found most burdensome. Specifically, the final regulations: 

• Require plans and issuers to collect and evaluate NQTL data on relevant outcomes related to access to MH/SUD benefits and M/S benefits and to take reasonable action, as necessary, to address material differences in access to MH/SUD benefits as compared to M/S benefits.
• Amend examples and add new examples on the application of the rules for NQTLs to clarify and illustrate the requirements of MHPAEA. 
• Set forth the content requirements for NQTL comparative analyses and specify how plans and issuers must make these comparative analyses available to the Departments, applicable state authorities, participants, beneficiaries and enrollees. 

The regulation of NQTLs

The final regulations make significant changes to the previous 2013 final regulations that focus primarily on NQTLs. These final regulations implement changes to the Mental Health Parity and Addiction Equity Act (MHPAEA) made by the Consolidated Appropriations Act, 2021 (CAA). The CAA added a requirement that plans and issuers must prepare a written comparative analysis of any NQTL imposed on MH/SUD benefits to reflect parity as related to medical/surgical benefits within a similar classification and provide the comparative analysis to regulators and plan participants upon request. The focus in the final regulations is on testing and documenting NQTLs. 

The final regulations establish a two-part test under which plans or issuers must determine whether their MH/SUD benefits are subject to greater restrictions than M/S benefits under the terms of the plan or coverage under which the plan or issuer must satisfy requirements related to the design and application of the NQTL (the "design and application requirement"); and the plan or issuer must collect, evaluate, and consider the impact of relevant data on access to MH/SUD benefits (the "relevant data evaluation requirement"). The proposed regulations would have imposed another requirement (a "no more restrictive requirement") that would apply to NQTLs numerical testing rules similar to those that apply to financial requirements or quantitative treatment limitations (QTLs). The requirement was heavily criticized in the comments to the proposed rule. The comments pointed out that it probably wouldn't make sense to apply a quantitative test to a non-quantitative limitation. Ultimately, the proposed regulations' more restrictive requirement was not carried over into the final regulations.