The Consolidated Appropriations Act, 2021 (“CAA”), which is the spending bill passed by Congress on December 27, 2020, imposed new requirements on group health plans to ensure compliance with the Mental Health Parity and Addiction Equity Act of 2008’s (“MHPAEA”).  Generally, the purpose of the MHPAEA is to prevent group health plans and health insurance issuers that provide mental health or substance use disorder (“MH/SUD”) benefits from applying financial requirements or treatment limitations to MH/SUD benefits that are more restrictive than those that apply to medical/surgical benefits.

The new requirements added by the CAA focuses on nonquantitative treatment limitations (“NQTL”). NQTLs are items like prior authorization, step therapy, medical necessity reviews, or other limitations or conditions that are not tied to a number.  The current rules allow participants to request information about the processes, strategies, evidentiary standards, and other factors used to apply a NQTL to MH/SUD benefits as compared to medical/surgical benefits.  The CAA added additional requirements effective February 10, 2021, including the following:

1. health plans and health insurance issuers that impose NQTLs on MH/SUD benefits are required to perform and document a comparative analysis demonstrating that the processes, strategies, evidentiary standards and other factors used to apply the NQTLs to MH/SUD benefits, as written and in operation, are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to medical/surgical benefits; and
2. upon request, health plans and health insurance issuers must make this comparative analysis available to state insurance regulators and/or the Secretary of Labor, the Secretary of Health and Human Services and/or the Secretary of the Treasury (the “Secretaries”) along with other information described in the CAA.

The CAA also requires the Secretaries to request at least 20 such analyses per year from health plans and health insurances issuers.  If the comparative analysis is found to be non-compliant, the health plan or health insurance issuers must specify the actions it will take to come into compliance and must provide a new, compliant analysis within 45 days.  If the new analysis is still determined to be non-compliant, the health insurance plan or health insurance issuer must inform all enrolled individuals of the non-compliance.

The Secretaries have 18 months to issue joint guidance and regulations on these new MHPAEA requirements; however, health plans and health insurance issuers should be prepared at any point after February 10, 2021 to submit this information.  Accordingly, plan sponsors should work closely with their insurance carriers or third-party administrators to document compliance with MHPAEA’s NQTL requirements and ensure they are prepared to respond to a request for the NQTL comparative analyses.