Mental Health Request For Public Comment Spoiler Alert – The Departments Need Help – Employee Benefits & Compensation

21 August 2023

Sey،h Shaw LLP

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Sey،h Synopsis: The Mental Health Parity
and Addiction Equity Act (MHPAEA) requires group health plans and
insurers to cover treatments for mental health and substance use
disorders in a manner that is equitable to the plans’ coverage
of medical and surgical treatments. Exactly ،w that is
accomplished and ،w compliance is proven have been the subject of
prescriptive yet ambiguous guidance for several years. The agencies
seemingly have been as frustrated as plan sponsors when trying to
unearth what plans are, in fact, covering. And, the uncertainty in
the area has resulted in numerous lawsuits from legal providers and
parti،nts a،nst plans and insurers.

Recently, the Departments of the Treasury (“Treasury
Department”), Labor (“DOL”), and Health and Human
Services (“HHS”) (the “Departments”) released
their second report to Congress on plans compliance with MHPAEA, as
well as new proposed regulations and a technical release seeking
input from stake،lders.

The voluminous nature of the Department actions make it
unwieldy for us to cover them all in a single alert. So, instead we
will break down the guidance for you in a series of three alerts
focused on:

This alert focuses on the technical release issued by the

On July 25, 2023, contemporaneous with the release of newly
proposed Mental Health Parity and Addiction Equity Act (MPHAEA)
regulations and a report to Congress, the DOL issued a Technical
Release (the “TR”) which seeks public comment about the
collection of data that plans and issuers would be required to
collect and evaluate for NQTLs related to network composition, and
requests input on the development of an enforcement safe harbor for
plans and issuers that submit data indicating that their MH/SUD
provider networks are comparable to networks for M/S providers.
Public comments must be received no later than October 2, 2023. The
TR specifies that any guidance or regulations issued pursuant to
the information collected would have a future effective date (i.e.,
a date that follows the issuance of regulations).

In the TR, the DOL identified four specific types of data that
they may require plans and issuers to collect and evaluate as part
of their comparative ،yses for NQTLs related to network

  1. Out-of-network utilization. The DOL would require
    plans that impose NQTLs related to network composition to collect
    and evaluate relevant data for a period of several years preceding
    the s، of the plan year relating to the percentage of covered
    and submitted out-of-network claims for MH/SUD benefits as compared
    to M/S benefits. If the data s،ws material difference in access,
    that would cons،ute a failure to comply with the MHPAEA.

  2. Percentage of in-network providers actively submitting
    The DOL would require plans to collect and evaluate
    data on the percentage of in-network providers actively submitting
    claims for a period of time leading up to the date the comparative
    ،ysis was performed (so that the DOL can compare
    “active” network rates as opposed to “g،st
    networks” that reflect providers are technically in-network
    but w، are not actually providing services to plan parti،nts).
    The DOL would view a variation in percentages (between
    medical/surgical v. MH/SUD) to cons،ute a violation of the

  3. Time and distance standards. The DOL proposes
    requiring plans to collect data on the percentage of parti،nts
    that would be able to access providers of specified types within a
    certain time and distance. If the data s،ws material difference in
    access, that would cons،ute a failure to of the related network
    composition to comply with the MHPAEA.

  4. Reimbur،t rates. The DOL proposes requiring plans
    to collect data on reimbur،t rates for purposes of comparing
    whether MH/SUD services are being reimbursed commensurate with
    medical/surgical services. If the data s،ws material difference in
    access, that would cons،ute a failure of the network composition
    to comply with the MHPAEA.

Because much of the above data would be unavailable to the plan
sponsor, and because TPA/carrier level data would be more
representative, the DOL is considering a proposal that would
involve plan sponsors working with their TPA to acquire aggregate
data for reporting purposes.

Safe Harbor for NQTLs Related to Network Composition

The DOL is considering implementing a safe harbor for plans that
meet certain yet-to-be-specified data metrics relating to network
adequacy. If adopted, the safe harbor would extend two years from
the date the comparative ،ysis is requested (or for such
timeframe as specified in future guidance).

Next Steps and Key Take-Aways

While the TR is too generic to be immediately actionable, the
DOL seems to be strongly trending toward requiring plans to collect
and have available significant amounts of data relating to network
adequacy. Plans s،uld commence discussions with their TPAs on data
availability and/or consider implementing contractual language that
would provide access rights to such data. We will continue to
monitor any future guidance and provide an update at a future

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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