On November 17th the Departments of Health and Human Services (HHS), DOL and Treasury (the Departments) jointly issued FAQs Part VII on Implementation of the Affordable Care Act (ACA). The first FAQ addresses the applicability date of the Summary of Benefits and Coverage (SBC) under PHS Act section 2715, and the other six FAQs clarify questions from stakeholders under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The Departments also note that they will continue to investigate complaints by providers, consumers and others and will take enforcement action for violations. Following is a brief summary of the FAQs:
Summary of Benefits and Coverage (SBC): Plans and carriers are not required to issue SBCs until final regulations are issued and applicable, and it is “anticipated” that the final regulations “will include an applicability date that gives group health plans and health insurance issuers sufficient time to comply.” More specificity would have been appreciated, but a reasonable interpretation might be that SBCs will not be required until the first open enrollment period after final regulations are issued.
Mental Health Parity and Addiction Equity Act (MHPAEA): The MHPAEA prohibits group health plans that offer mental health and substance use benefits from imposing more restrictive financial requirements and quantitative treatment limitations on mental health and substance use benefits than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits. The MHPAEA also imposes the following limitation on non-quantitative treatment limitations:
The first five FAQs on the MHPAEA provide examples to clarify how the non-quantitative treatment limitations apply “under the terms of the plan as written and in practice.” The last FAQ clarifies the application of a financial requirement.
The following non-quantitative treatment limitations are not permissible:
1– A group health plan requires prior authorization from the plan’s utilization reviewer that a mental health or substance use treatment is medically necessary, but the plan does not require such prior authorization for any medical/surgical benefits.
2– For both medical/surgical and mental health and substance use disorder inpatient benefits, a group health plan requires prior authorization from the plan’s utilization reviewer that a treatment is medically necessary. In practice, inpatient benefits for medical/surgical conditions are routinely approved for seven days, after which a treatment plan must be submitted to the plan for approval. For inpatient mental health and substance use disorder benefits, however, routine approval is given for only one day, after which a treatment plan must be submitted to the plan for approval.
3– A health insurance policy requires prior authorization for all outpatient mental health benefits but only a few types of outpatient medical/surgical benefits (outpatient surgery; speech, occupational and physical therapy; and skilled home nursing visits.)
The following non-quantitative treatment limitations are permissible:
1– A group health plan considers a wide array of factors in designing medical management techniques for both mental health/substance use disorder benefits and medical/surgical benefits (such as cost of treatment; clinical efficacy of any proposed treatment or service; and claim types with a high percentage of fraud, to name only a few). Based on application of these factors in a comparable fashion, prior authorization is required for some (but not all) mental health and substance use disorder benefits, as well as for some (but not all) medical/surgical benefits.
2– A plan applies the same evidentiary standard of concurrent review to both medical inpatient care and mental health/substance use disorder where there are high levels of variation in length of stay. In practice, this standard affects 60 percent of mental health conditions and substance use disorder conditions, but only 30 percent of medical/surgical conditions.
The last FAQ clarifies that the standard for determining the maximum copayment that can be applied to mental health/substance use disorder benefits is determined by the predominant copayment that applies to substantially all medical/surgical benefits within a classification. In some cases this will be the copayment charged for a medical/surgical specialist, while in others it will be the copayment charged for a medical/surgical generalist. (Classifications are inpatient & in-network, inpatient & out-of-network, outpatient & in-network, outpatient & out-of-network, emergency care and prescription drugs.)