On April 23, 2018, the DOL, HHS, and IRS proposed additional Frequently Asked Questions (FAQs) related to the Mental Health Parity and Addiction Equity Act of 2008 (the Act) and its implementation, along with a revised disclosure form to Request Documentation from an Employer-Sponsored Health Plan or an Insurer Concerning Treatment Limitations and an updated Self-Compliance Tool.

The Act requires that health plans providing coverage of mental health/ substance use disorder (MH/SUD) benefits, ensure that such coverage is at least as good as the coverage provided for medical/ surgical benefits in the same classification or category. The six classifications of benefits are: (i) Inpatient/in-network; (ii) Outpatient/ in-network; (iii) Inpatient/ out-of-network; (iv) Outpatient/ out-of-network; (v) Prescription drugs; and (vi) Emergency care.  Additionally, Act’s requirements apply to three different types of plan-imposed limitations on benefits: (i) Financial requirements (such as coinsurance and copays); (ii) Quantitative treatment limitations (such as visit limits); and (iii) Non-quantitative treatment limitations (NQTLs) (such as restrictions based upon facility type or medical management standards).  NQTLs present challenges to plan sponsors and insurers because they may be subjective and, as such, are more difficult to evaluate than the objective financial and quantitative treatment limitations.  For example, a medical management standard limiting or excluding benefits based on whether a treatment is experimental or investigative is an NQTL.  Therefore, the proposed FAQs are beneficial to plan sponsors and insurers because they provide several hypothetical fact situations and plan designs involving NQTLs, and identify whether the plan design complies with the Act’s NQTL provisions. 

The proposed FAQs also describe the ERISA disclosure requirements for MH/SUD benefits by: (i) reiterating that Summary Plan Descriptions must give a general description of a plan’s provider network, including a list of providers that is up-to-date, accurate, and complete; (ii) and reminding employers that a hyperlink or URL for a provider directory may be used in enrollment and plan summary materials, so long as the DOL’s electronic disclosure safe harbor requirements are met.

Finally, in response to comments on the draft model disclosure form released in 2017, The agencies have also revised the draft model disclosure form that participants, enrollees, and their authorized representatives may use to request information from their plan or insurer about their plan’s nonquantitative treatment limitations. Plans and insurers are required to disclose the criteria for medical necessity determinations with respect to mental health and substance use disorder benefits to any current or potential participant, beneficiary, or contracting provider on request and must make available the reason for any denial of reimbursement or payment for services to the participant or beneficiary. Comments on the most recent draft model disclosure are due by mid-June of 2018.  -- SKI, AllThingsERISA

Plan sponsors and counsel should review the FAQs, the model draft notice (https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/laws/mental-health-parity/mhpaea-disclosure-template-draft-revised.pdf) and Self-Compliance Tool (pdf) and an updated https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/compliance-assistance-guide-appendix-a-mhpaea.pdf) to ensure that their plans do not include provisions that violate MHPAEA rules, particularly the plan provisions on Non-quantitative Treatment Limitations (NQTLs).