On April 23rd the Departments (DOL, HHS & Treasury) issued a packet of guidance on the Mental Health Party and Addiction Equity Act (MHPAEA). One item in that packet was FAQs Part 39. Click here for that article. Today’s article provides additional detail on the examples in FAQs Part 39. These FAQs were issued because the 21st Century Cures Act (enacted December 13, 2016) requires the Departments to solicit feedback and issue clarifying information and illustrative examples regarding MHPAEA provisions on Non-quantitative Treatment Limitations (NQTLs) and on ERISA disclosure.
The standard: The standard under the MHPAEA and guidance is that plans and insurers may not impose NQTLs on mental health/substance use disorder (MH/SUD) benefits unless any methods, processes, strategies, evidentiary standards and other factors in applying the NQTLs are comparable to, and are applied no more stringently than, those used in applying the NQTL to medical/surgical benefits in the same classification. The six classifications are: 1) Inpatient in-network, 2) Inpatient, out-of-network, 3) Outpatient in-network, 4) Outpatient out-of-network, 5) Prescription drugs, and 6) Emergency care.
The examples in the FAQs explain why various plan provisions meet—or fail to meet—this standard. The examples examine both written plan terms and how the plan is administered in operation. Plan sponsors should review these examples to see how their plans compare – both in writing and in operation.
- Autism treatment. The plan says it denies coverage for experimental treatment, which it defines as treatment for which there are no professionally recognized treatment guidelines defining clinically appropriate standards of care for the condition, and fewer than two randomized controllable trials available to support it. Last year it applied this standard to medical/surgical benefits; however, it denied coverage for Applied Behavioral Analysis (ABA) as appropriate treatment for certain children with Autism Spectrum Disorder (a mental health condition), even though it was supported by more than one professionally recognized treatment guideline and more than two controlled randomized trials. This is not permissible because it violates the plan’s written provisions. (Question 2)
- Exclusion of experimental or investigative treatments. It is allowable to have a medical management standard that limits or excludes benefits based on whether a treatment is experimental or investigative. This is not an NQTL under the MHPAEA. However, if a plan makes exceptions to this rule, it must apply the criteria for the exceptions equally to medical surgical benefits as to MH/SUD. It is not allowable for a plan to apply a more stringent evidentiary standard for MH/SUD benefit. (Question 3)
- Prescription drugs. The requirement to apply NQTLs no more stringently to MH/SUD benefits than to medical surgical benefits applies to prescription medications as well as other treatments and services. It is permissible for a plan formulary to follow the dosage limits recommended in professionally-recognized treatment guidelines, but it must follow comparable guidelines and apply them no more stringently, in setting dosage limits for prescription drugs for MH/SUD as for medical surgical. (Question 4)
- Exclusion of coverage for a particular condition. It is allowable under the MHPAEA for a large group health plan (insured or self-inured) to exclude coverage for bipolar disorder (a MH/SUD condition), even if it does not exclude coverage for any particular medical condition. The reason is because the MHPAEA does not prohibit a plan from excluding all benefits for a particular condition or disorder, because this (general exclusion) is not considered a “treatment limitation” under the MHPAEA. Note that insured plans may be prohibited by some states’ laws from excluding coverage for bipolar disorder. And small insured plans may be required to provide coverage as part of the Affordable Care Act’s “essential health benefits.” (Question 5)
- Step therapy protocols (“fail first” policies). It is allowable for a plan to refuse to pay for a higher-cost therapy until it is shown that a lower-cost therapy is not effective; however, the terms cannot be more stringent for MH/SUD than for medical/surgical unless the plan can demonstrate that evidentiary standards or other factors were used comparably to develop and apply differing step therapy requirements. Thus, it is probably not allowable to apply a step therapy protocol for medical/surgical benefits that requires only one unsuccessful attempt at outpatient treatment in the past 12 months before a patient can be eligible for inpatient, in-network medical/surgical benefits, but for MH/SUD benefits to require two unsuccessful attempts at outpatient treatment before covering inpatient benefits. (Question 6)
- Different provider reimbursement rates. It is not permissible for a plan to have the same reimbursement rates for physicians and non-physician practitioners for medical/surgical benefits, but to pay reduced reimbursement rates for non-physician practitioners for MH/SUD benefits (e.g., for psychologists versus psychiatrists). (Question 7)
- Network adequacy standards. Network adequacy standards are subject to the same standard stated above (i.e., they must be applied no more stringently for MH/SUD than for medical/surgical benefits). Thus, if a plan considers how long participants and beneficiaries must wait for appointments for services as a factor in developing the network for medical/surgical providers, it also must consider this as a factor in developing the network for MH/SUD providers. (Question 8)
- Coverage based on facility type. A plan covers inpatient, out-of-network treatment outside a hospital setting for medical/surgical conditions if the prescribing physician obtains authorization from the plan and the treatment is medically appropriate for the individual. This is a NQTL and is allowable so long as it is applied no more stringently to MH/SUD benefits. Thus, it is not permissible for a plan to provide treatment of eating disorders but to categorically exclude all inpatient, out-of-network treatment outside of a hospital setting for eating disorders, including residential treatment (which the plan considers as an inpatient benefit). Issues often arise with plan coverage of intermediate levels of care for MH/SUD benefits. (For example, facility type for intermediate levels of care for MH/SUD benefits may include Partial day treatments and residential treatment. Facility type for Intermediate level care for medical/surgical benefits may include out-patient surgery centers.) Plans must initially determine if the intermediate level of care is assigned to the six benefit classifications in the same way for both medical/surgical and MH/SUD benefits. (Question 9)
- Emergency room benefits. If emergency room care is provided for an acute condition affecting a patient’s physical health that arises as a complication of a MH/SUD condition, whether the benefits are considered MH/SUD benefits depends on whether the terms of the plan (in accordance with applicable Federal and State law) define the particular acute condition as a medical condition or a MH/SUD condition. (Question 10)
Disclosure requirements. (Questions 11 & 12) Group health plans that are subject to ERISA must comply with specific disclosure obligations under the MHPAEA as well as with ERISA’s general disclosure obligations (section 104(b)). One of the disclosure requirements is that if a plan utilizes a provider network, its Summary Plan Description (SPD) must provide a general description of it, and the plan administrator must make reasonable efforts to furnish a list of providers that is accurate, up-to-date and complete. This list can be provided by various means, including:
- a separate document that accompanies the SPD,
- a summary of material modifications (SMM) that updates the list,
- SMMs and SPDs must be provided no more than 210 calendar days after the close of the plan year in which the change occurs or was adopted.
- A hyperlink or URL address (to the provider list) in enrollment and plan summary materials.
A plan would not be in compliance with these disclosure requirements if the in-network provider directory includes psychiatrists (or other medical providers) who retired three years ago or have not been participating in the network several years.