Feb. 24, 2021

Impact of the New Mental Health Parity Disclosure Rules

The federal government recently passed the Consolidated Appropriations Act, 2021 (the “CAA”). The CAA contains several provisions, including rules that add to the parity requirements that already existed under the Mental Health Parity and Addiction Equity Act (“MHPAEA”).

Background
Since the MHPAEA final regulations became effective in 2014, a plan’s parity analysis has consisted of three parts:
 

• Financial testing (out-of-pocket maximums, deductibles, coinsurance, copays)
• Quantitative treatment limits (“QTLs”) (visit limits, day limits, etc.)
• Nonquantitative treatment limits (“NQTLs”) (prior authorization, medical necessity, etc.)

Subsequent sub-regulatory guidance (e.g., FAQs, self-compliance tool) have helped guide how the parity analysis should look, including the components of the NQTL analysis.

What does the CAA do?

1. Codifies the NQTL analysis laid out in the previous guidance and requires plans to present that analysis upon request from a federal or state agency.
    
2. Requires that the analysis be documented, and include the specific findings and conclusions reached by the plan.
    
3. Effective Feb. 10, 2021, allows federal or state agencies to request a copy of such analysis.

What does the CAA change?
Before the CAA, while a plan had to be in parity, there was no federal requirement to document or disclose such parity. Instead, parity disclosures were generally required when there was a complaint, audit by a governmental agency, or a request by a member or provider.

What does the CAA not do?

1. Doesn’t substantively change a plan’s parity analysis. The general federal parity analysis framework that has been in place since 2014 continues to apply.
    
2. Doesn’t require any proactive disclosure, meaning plans do not need to produce their NQTL documentation to any agency immediately on Feb. 10, 2021. Instead, the analysis must only be disclosed upon request from a governmental agency. The CAA doesn’t change the previous requirements to provide a disclosure if there is a complaint, audit, or a request by a member or provider.
    
3. Doesn’t provide any specific guidance on reporting templates to be used for the NQTL analysis. We expect that the federal agencies will be issuing guidance in the future on what form the NQTL disclosures must take. But for now, there is no right or wrong way to disclose the information.
    
4. Doesn’t create a federal disclosure requirement for a plan’s financial testing or QTL results. Presumably, these disclosures continue to be required as part of a complaint, audit, or inquiry from a member or provider.

What does this mean to groups?
While the NQTL analysis technically may be requested by governmental agencies any time after Feb. 10, 2021, given the lack of guidance at this time, it seems likely that any such requests would occur as a result of member complaints or agency audits.

Blue Cross and Blue Shield of Texas (BCBSTX) has a Mental Health Parity (MHP) governance framework in place today.
 

• BCBSTX’s mental health parity team has developed a side-by-side NQTL overview document for our standard fully insured business following extensive interviews and audits of documentation of impacted business areas. The overview addresses the requirements laid out by the CAA and includes information regarding NQTL applicability, factors and evidentiary standards used in applying NQTLs.
   
  • We can provide this overview to ASO and fully insured plans with limited customization.
     
• Please note: For ASO groups, BCBSTX cannot attest to mental health parity of the plan design. ASO groups are responsible for ensuring compliance.
   
  
• BCBSTX’s mental health parity team is available to assist with NQTL overviews requested by a customer due to agency inquiry or special circumstance. The team can’t complete any other forms or templates. The team has a limited capacity and will prioritize the creation of NQTL overviews for employer groups with direct information requested from a governmental agency.

If you have a request or questions:
 

• If you have a request for an analysis from a government agency, please contact your account representative.
   
• BCBSTX will continue to monitor for guidance that may impact how we perform and document the NQTL analysis. If you have any questions, please contact your account representative.