On June 16, 2017, a new FAQ, Part 38, was jointly issued by the federal Departments of Labor, Health and Human Services, and the Treasury (collectively, the “Departments”) regarding the application of certain requirements under the Mental Health Parity and Addiction Equity Act (“MHPAEA”), as amended by the Affordable Care Act and the 21st Century Cures Act. In particular, this new FAQ addresses the question of whether the MHPAEA applies to benefits that a group health plan or health insurance issuer may offer for treatment of an eating disorder. Generally, the MHPAEA prohibits plans and issuers from imposing financial requirements or treatment limitations on “mental health benefits” and “substance use disorder benefits” (collectively, “MH/SUD Benefits”) that are more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits. The FAQ clarifies that eating disorders are mental health conditions; therefore, treatment of an eating disorder is a “mental health benefit” within the meaning of that term under the MHPAEA. A violation of the MHPAEA could result in substantial liability for the plan sponsor.
The MHPAEA and its regulations also require a plan or issuer to disclose the criteria for “medical necessity” determinations that apply to MH/SUD Benefits to interested participants upon request. In addition, the plan or issuer must make the reason for any denial of reimbursement or payment for MH/SUD Benefits available to participants. The Departments have issued a draft model disclosure request form, as discussed in the FAQ (the “Model Form”), which could be, but is not required to be, used to request certain disclosures related to non-quantitative treatment limitations under a plan or insurance policy. The Departments have solicited comments on the Model Form, which must be received by September 13, 2017.