The 21st Century Cures Act required the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury to solicit feedback from the public on how the disclosure request process under The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) can be improved. As part of this public outreach process, the Departments are soliciting comments on a draft model form that participants, enrollees or their authorized representatives could use to request information from their health plan.
The answer to a frequently asked question (FAQ) indicates that eating disorders are mental health conditions and therefore treatment of an eating disorder is a “mental health benefit” within the meaning of that term as defined by MHPAEA.
Generally, MHPAEA requires that the financial requirements and treatment limitations imposed on mental health and substance use disorder (MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits. MHPAEA also imposes several disclosure requirements on group health plans and health insurance issuers. The Cures Act was enacted on December 13, 2016. Among other things, the Cures Act contains provisions that are intended to improve compliance with MHPAEA by requiring the Departments to solicit feedback from the public on how to improve disclosure of the information required under MHPAEA and other laws.
The Departments have issued multiple pieces of guidance to address disclosure obligations under MHPAEA and other laws. The MHPAEA provisions and implementing regulations expressly provide that a plan must disclose the criteria for medical necessity determinations with respect to mental health and substance use disorder (MH/SUD) benefits to any current or potential participant, beneficiary or contracting provider upon request. The plan also must make available the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits to the participant or beneficiary.
The Departments have clarified in previous regulations and guidance the breadth of disclosure required, as well as which documents participants, beneficiaries and their authorized representatives have a right to receive under MHPAEA, the Employee Retirement Income Security Act (ERISA) and the Affordable Care Act. For example, plans subject to ERISA are required to provide participants, upon request, with information about the processes, strategies, evidentiary standards, and other factors used to apply a nonquantitative treatment limitation (NQTL) with respect to medical/surgical benefits and MH/SUD benefits under the plan.
Before the Cures Act was enacted, the Departments had issued Affordable Care Act Implementation FAQs Part 34, which, among other things, solicited feedback regarding disclosures with respect to MH/SUD benefits under MHPAEA and other laws. In the FAQs, the Departments indicated that they had received questions and suggestions regarding disclosures with respect to NQTLs. This feedback included requests for model forms that group health plan participants, beneficiaries, covered individuals in the individual market or persons acting on their behalf could use to request relevant disclosures. The feedback also included requests for guidance on other ways in which disclosures or the process for requesting disclosures, could be more uniform, streamlined, or otherwise simplified.
In addition, the Departments indicated that they had received requests to explore ways to encourage uniformity among State reviews of health insurance issuers’ compliance with the NQTL standards. The Departments indicated that various stakeholders stated that model forms to report NQTL information will help facilitate uniform implementation and enforcement of MHPAEA, and relieve some complexity that MHPAEA compliance poses for issuers operating in multiple States. Furthermore, other stakeholders highlighted that the use of such model forms may also benefit consumers, as consumers will be entitled to request the analysis performed to complete the model forms.
The draft form includes an overview of the MHPAEA’s requirements, including the type of financial requirements and treatment limits that are subject to mental health parity. The form explains that plans must provide individuals certain plan documents addressing their benefits upon request and within 30 days of when the plan receives the request.
If the form is finalized and there is publicity about it, employers can expect an increase in requests for information about mental health benefits.