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Summary of Key Comments on the Mental Health Parity and Addiction Equity Act (MHPAEA) NPRM


Since 2013 when the MHPAEA final rules were issued, spending by commercial health insurance providers on MH/SUD care for patients has nearly doubled.

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Published on Dec 12, 2023

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Health insurance providers strongly support mental health parity, have already made significant and impactful changes to their benefit designs, and will continue to work diligently to ensure that coverage of mental health and substance use disorder (MH/SUD) care is on par with medical and surgical care.

As a country, we have made tremendous progress on increasing access to MH/SUD treatment. Since 2013 when the Mental Health Parity and Addiction Equity Act (MHPAEA) final rules were issued, spending by commercial health insurance providers on MH/SUD care for patients has nearly doubled. Plans have:

  • expanded provider networks
  • focused on equity issues
  • embraced telehealth
  • worked to integrate MH/SUD care with primary care
  • made efforts to reduce stigma
  • conducted proactive outreach to members about the availability of these benefit, and
  • helped people get appointments.

As a result, more people are accessing their MH/SUD benefits and getting the care they need.

There is no doubt that more work must be done. We still have a severe shortage of MH/SUD providers in many parts of the country, and we need better ways to assess the quality of many MH/SUD treatments so that we can pay for what works best to improve patient outcomes.

But the proposed regulations from the Departments of Health and Human Services, Labor, and Treasury (collectively, the Departments) do little to address these root issues and instead risk eroding future progress in the availability, affordability, and quality of MH/SUD treatment. They miss an opportunity to improve on MHPAEA’s progress and, most recently, the Fiscal Year 2021 Consolidated Appropriations Act (CAA), which, for the first time, turned what had been a best practice, into a requirement to perform comparative analyses between MH/SUD and medical and surgical benefits to demonstrate parity. Instead, the proposed regulations far beyond current law and impose new, unworkable, and illogical standards on a process that was already in dire need of greater clarity.

Key Operational Concerns

  • Reinterpreting statute to treat NQTLs like QTLs. MHPAEA made a clear distinction between quantitative treatment limits (QTLs), like number of visits, and non-quantitative treatment limits (NQTLs), like prior authorization, and established different tests for these different types of limits. Because of their non-numerical nature, NQTLs were not subject to the “substantially all” math test that applied to QTLs. Instead, the processes and type of information that went into the design and application of an NQTL for MH/SUD benefits were required to be comparable to what went into an NQTL for M/S benefits. But the proposed rule upends this framework and subjects NQTLs to the same quantitative test as QTLs, such that NQTLs applied to MH/SUD benefits must also be applied to at least two-thirds of M/S benefits in the same classification. Due in part to the vastly greater number of M/S services as compared to MH/SUD services, this is a significant and unworkable change and risks undermining medical management activities designed to protect and add value for patients.
  • Making the definition of an NQTL an unknown, moving target. While the Departments have provided examples of what they consider NQTLs, the definition itself is open-ended and subject to continued expansion and differences in interpretation. As a result, plans will have to have dozens of detailed NQTL comparative analyses at the ready and even then, could face violations if the Departments view a plan activity as an NQTL when the plan did not. This effort takes away valuable resources from patient care.
  • Ignoring previous guidance that differences in outcomes are not determinative of non-compliance. MHPAEA requires that the application of NQTLs on MH/SUD benefits “in operation” be comparable and no more stringent than on M/S benefits. This has led to analysis of different types of “outcomes” data, such as denial rates. Numerous guidance documents from the Departments, including the Department of Labor’s Self-Compliance Tool, make clear that disparate outcomes are not determinative of non-compliance, again recognizing that the law requires the processes and standards used in applying the NQTL be comparable across MH/SUD and M/S benefits and that different outcomes could still be MHPAEA-compliant. The proposed rules contradict this position and create a new and undefined “material difference” standard that states that differences in outcomes data, at best, are a strong indicator of noncompliance and, at worst, as in the case of network composition, would trigger a finding of noncompliance.
  • Imposing a benefit mandate that could open the door to unsafe, unproven MH/SUD treatments. Congress expressly did not create a benefit mandate with enactment of MHPAEA and the Departments reiterated this position in their 2013 regulations. Yet by establishing an undefined “meaningful benefit” standard, the proposed rules do just that and risk being interpreted to require coverage of every possible treatment for a MH/SUD condition (e.g., wilderness therapy), however unproven or unsafe.

For these and additional reasons further detailed in our comment letter, we are recommending that the Departments withdraw the proposed rules, begin a process of in-depth engagement with stakeholders through a series of working sessions, and develop new proposed rules informed by the working sessions’ discussions.