We wrote a blog post last year on the proposed FAQs addressing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), specifically as it applies to self-funded group health plans that excluded Applied Behavior Analysis (ABA) therapy from plan benefit coverage. Last week, the Department of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively “the Departments”) issued final FAQs providing additional insight on compliance with MHPAEA. The new guidance, although not binding precedent, does shed light on how the Departments will handle these issues going forward, and self-funded health plans that do not follow this guidance should expect to face an uphill battle in litigation if this guidance is not followed.

The final FAQs do not contain major changes from the proposed FAQs, and the guidance uses the same hypothetical plan to explain the restrictions a group health plan faces in the application of nonquantitative treatment limitations (NQTL) to mental health/substance use disorder (MH/SUD) benefits. The hypothetical plan as drafted purports to not cover either MH/SUD or medical/surgical benefits if the treatment met the plan’s definition of “experimental” (the NQTL in this example). In practice, the plan covered all medical/surgical benefits that did not meet the definition of experimental under the plan, but contrastingly the plan did not cover ABA therapy, a MH/SUD benefit, even though it too did not meet the plan’s experimental treatment definition. The FAQ provides that this hypothetical plan violates the MHPAEA because plans cannot apply a NQTL more stringently to MH/SUD benefits than to medical/surgical benefits.

The Departments also clarify in the FAQs that plans are subject to certain disclosure requirements when NQTL determinations are made and treatments are excluded from plan coverage. Specifically, the processes, strategies, evidentiary standards, and other factors used to make a NQTL determination should be well documented and must be available to be furnished to a participant within 30 days of a participant request or upon appeal of an adverse benefit determination. The Departments included a model disclosure request form in the final FAQs for a plan to have available for covered individuals to request information disclosure. Employers who receive requests should ensure to timely respond as failure to do so could subject employers to a penalty of $110 per day.