Government Proposes New Rules to Strengthen Parity Law

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President Joe Biden’s administration has proposed new rules that would strengthen the 2008 Mental Health Parity and Addiction Equity Act (MHPAEA) by closing loopholes and adding greater clarity to the law’s requirements to ensure that patients can access treatment for mental and substance use disorders as easily as those seeking coverage for other types of medical care under their insurance plans.

“For far too long and despite efforts from the federal and state governments, many insurers have treated mental health as an afterthought to physical health, leaving patients and families dealing with mental health and addiction issues scrambling to find affordable care, or going without,” an APA statement on the rules reads. “Today’s actions from the White House to bolster and strengthen enforcement of the nearly 15-year-old mental health parity law are important steps toward ensuring more Americans who need these services can access them.”

The new rules, proposed by the departments of Labor, Treasury, and Health and Human Services, are the latest in a series of actions taken by Congress and the administration to improve access to care for mental and substance use disorders. In a news release, the departments said the rules seek to “provide clear guidance to plans and issuers on how to comply with the law’s requirements.”

The rules were announced at a White House event that brought together leaders of mental health and patient advocacy organizations that have been advocating for mental health parity for decades. Among those invited to the event were Saul Levin, M.D., M.P.A., APA’s CEO and medical director, and Kristin Kroeger, chief of APA’s Policy, Programs, and Partnerships. Also invited were past APA president Steven Sharfstein, M.D., and Howard Goldman, M.D., Ph.D., director of the Maryland Mental Health Systems Improvement Collaborative.

“The actions we’re announcing today represent a real step forward to help millions of people get [the] mental health care they need,” Biden said during his speech. “But there’s still so much more to do.”

Several aspects of the rules have to do with provisions of the Consolidated Appropriations Act of 2021 (CAA), which requires insurers to conduct and document comparative analyses of their nonquantitative treatment limits (NQTLs) to ensure they are in compliance with MHPAEA (see “With New Authority, Agency Empowered to Crack Down on MH Parity Enforcement”). NQTLs are elements of a health plan’s benefits that are not numerical in nature, such as prior authorization. While it may be easier to compare copays and deductibles between mental and other medical benefits, comparing NQTLs to ensure plans are complying with MHPAEA is more difficult. The new rules, which aim to clarify the content of plans’ comparative analyses and remove improper barriers to care, would do the following:

• Implement new data requirements for NQTLs that are designed to help plans improve their comparative analyses.

• Require plans to collect and analyze data on the outcomes of their NQTLs and address material differences in access between mental and other medical benefits. This includes evaluating their actual provider networks, how much they pay out-of-network providers, how often prior authorization is required, and the rate at which prior authorizations are denied.

• Require plans to demonstrate, with a corrective action plan, that they have made necessary changes to ensure compliance with MHPAEA if the analyses show they’re failing to meet the parity law’s requirements.

• Prohibit plans from using NQTLs when their comparative analyses are determined to be noncompliant.

• Require non-federal governmental health plans, like those that cover state and local government employees, to comply with the federal parity requirements. This would require more than 200 additional health plans that cover 90,000 people to comply with MHPAEA.

Additionally, the rules provide specific examples on how to apply NQTLs to ensure compliance with MHPAEA. For instance, the rules include examples that make clear that health plans cannot implement more restrictive prior authorization requirements for mental health benefits compared with other medical benefits.

In addition to requiring plans to conduct comparative analyses, the CAA also requires the departments of Labor, Treasury, and Health and Human Services to submit an annual report to Congress on the results of their reviews of those analyses (see “Government Steps Up Efforts to Enforce Parity Law”). In the second such report, completed in July, the departments wrote that many comparative analyses remained deficient in providing enough information to demonstrate the plan’s compliance with MHPAEA.

On the positive side, however, the report also documents instances in which actions taken by the agencies to enforce MHPAEA resulted in significant improvements in access to mental health care. One plan covering 22,000 members removed an exclusion for treatment with opioid treatment programs. Another removed an exclusion for coverage of applied behavior analysis therapy for autism spectrum disorder, impacting over 1 million plan members. The proposed rules, the departments’ news release states, will further improve access to mental health care.

In a news release, former Rep. Patrick J. Kennedy, who co-sponsored MHPAEA and attended the White House event, said that there has been no greater opportunity to expand mental and substance use disorder care since President George W. Bush signed MPHAEA into law (see “Parity Victory Was Long, Winding Road”).

He continued: “I applaud the Biden administration for taking this urgently needed step to properly enforce the federal parity act and create clear, straightforward rules to increase access to care for the millions of Americans who need—and deserve—lifesaving treatment.”

The rules are open for public comment until October 2. Those who wish to make comments may do so at http://APAPsy.ch/co. ■