History of MHPAEA

Mental Health Parity is designed to ensure individuals receive equal access to Mental Health and Substance Use Disorder (MH/SUD) benefits as they do for Medical and Surgical (MED/SURG) benefits. This quest for parity began legislatively in 1996 with the Mental Health Parity Act (MHPA), prohibiting insurance companies from imposing more restrictive annual or lifetime dollar limits on mental health benefits than MED/SURG. Since then, many regulations have been passed to help achieve this goal.

• In 2008, the Mental Health Parity and Addiction Equity Act (MHPAEA) incorporated additional provisions, enforcing that financials (copays or deductibles) and treatment limitations (number of visits or days of coverage) were equal, as well as applying all requirements to substance use disorder benefits.
• Additional MHPAEA regulations were published in 2013, providing much more guidance on how to achieve compliance.
• The Consolidated Appropriations Act of 2021 introduced the requirement to perform a comparative analysis of non-quantitative treatment limitations (NQTL), such as preauthorization, network administration standards, or step therapy. However, nearly all the analyses submitted were found insufficient.

Despite previous efforts and regulations, disparities between MH/SUD and MED/SURG benefits have continued to grow over the last 15 years. In 2022, according to the Substance Abuse and Mental Health Services Administration’s (SAMHSA) National Survey on Drug Use and Health (NSDUH), almost 54.6 million people aged 12 and older were diagnosed for needing treatment for substance abuse, and only 24% of that population were able to receive treatment.¹ Additionally, a study by RTI International showed that in 2021, out-of-network behavioral health clinician office visits were reported to be 3.5 times higher than all MED/SURG out-of-network office visits.²  

Final Rules to the MHPAEA were released by the Departments of Labor, Health and Human Services, and the Treasury on September 9^th, 2024, with the intent to rapidly address these barriers. These rules take effect on January 1, 2025, with some requirements having a delayed application until January 1, 2026. The Final Rules expand on previous requirements, provide clarification for group health plans and health insurance issuers to stay compliant with MHPAEA, and aim to eliminate any restrictions on MH/SUD treatments or resources, ensuring the same level of coverage as MED/SURG benefits. 

The final regulations are complex and will be cumbersome for all employers, especially those with self-insured plans.  At the core of the regulation are two requirements: a Benefit Coverage Requirement and an NQTL Comparative Analysis Requirement.

Benefit Coverage Requirement

This review must ensure that financial requirements and quantitative treatment limitations (QTL) are not more restrictive when comparing MH/SUD and MED/SURG benefits. The final rules remove away from the tests mentioned in 2013 and emphasized that plans cannot impose an NQTL that is more restrictive on MH/SUD benefits compared to MED/SURG benefits. To determine whether the NQTL meets the requirement to be no more restrictive, the plan must satisfy both a Design and Application Requirement as well as a Relative Data Evaluation Requirement. 

Design and Application Requirement: Plans must show that the processes, strategies, evidentiary standards, and other factors used when both designing and applying the NQTL are comparable, rather than the previously only evaluating the application itself. Additionally, a key provision prohibits using discriminatory factors or evidentiary standards when designing the NQTL.

When evaluating the plans, the regulation is clear that health plans must provide “meaningful benefits,” which entail covering at least one core treatment in each category for MH/SUD benefits, as they do for MED/SURG. The six recognized categories are emergency services, in-network inpatient, out-of-network inpatient, in-network outpatient, out-of-network outpatient, and prescription drugs. For example, if a health plan covers a hospital surgery in the inpatient category, it must also provide access to mental health treatment, such as inpatient psychiatric care, in the same category. If they provide antibiotics in the prescription drugs category, they must also provide antidepressants.

Data Evaluation Requirement: Plans must collect and evaluate data to assess the relevant outcomes of applying the NQTL. Plans and issuers must identify material differences in access to services and take reasonable action to address them. Although the Departments will not provide a set list of required data, they expect plans to collect data relevant to most NQTLs, allowing flexibility based on the NQTL in question. If data is lacking, plans must state why it is missing, how they will collect it in the future, or provide a reasoned justification concluding no data exists.

If the Departments determine that the NQTL is more restrictive and that the above requirements are not met, they can enforce plans to stop imposing the NQTL on their MH/SUD benefit offering.

NQTL Comparative Analysis Requirement

The Final Rules reiterate the need for an NQTL comparative analysis, which has been a requirement since the CAA (2021). The analysis requirements are robust, requiring the Plan to explain how and why the Benefit Coverage Requirements are satisfied within their NQTL Comparative Analysis.  This narrative must be detailed and include the following Content Elements:

• Description of the NQTL, including identification of benefits subject to the NQTL
• Identification and definition of the factors and evidentiary standards used to design or apply the NQTL
• Description of how factors are used in the design or application of the NQTL
• Demonstration of comparability and stringency, as written
• Demonstration of comparability and stringency, in operation, including the required data, evaluation of that data, explanation of any material differences in access, and description of reasonable actions taken to address such differences
• Findings and conclusions

This analysis must consider all facets of the plan, including core treatment, standards of care, utilization, access, networks, prior authorizations, etc. The plan must assess any material differences and what meaningful actions are being taken to ensure compliance. 

For ERISA-covered plans, the named plan fiduciary must verify an appropriate analysis was conducted with a prudent process.  Fiduciaries are also responsible for continually monitoring the plan and compliance with the NQTL analysis. 

The comparative analysis must be readily available upon request and provided within the specific timeframe: 10 business days for the relevant Secretary, and 30 days for participants or beneficiaries. If an insufficient analysis is determined, plans must submit additional information within 10 business days. If there is an initial determination of noncompliance, they have 45 calendar days to make corrections. If there is a final determination of noncompliance, the plan must inform all enrolled participants and beneficiaries within 7 days and provide the Secretary with a copy of this notice, along with the names of everyone involved in the process.

Action Plan

The Departments recognize that employers with self-insured health plans rely on TPAs and service providers for plan administration and understand the challenges in obtaining the necessary comparative analyses or required data. However, plans and issuers are ultimately responsible for compliance with MHPAEA. If you don’t already have a comparative analysis on hand, it should become a top priority due to the quick turnaround response times outlined. It is recommended to consult with a legal partner for an in-depth analysis. Additionally, the MHPAEA Final Self-Compliance Tool, finalized in 2020, serves as a valuable resource, guiding plans and issuers to meet compliance with MHPAEA’S parity requirements. This tool has not been updated, but that is expected. 

The Final Rules generally apply starting January 1, 2025, though provisions like meaningful benefits and certain comparative analysis requirements are delayed until January 1, 2026, to give employers more time to comply.

Although we recommend that employers carefully examine their plans and work toward immediate compliance, a lawsuit has been filed and more are anticipated.  The lawsuit from ERIC (The ERISA Industry Committee) indicates that the new regulations are fundamentally flawed, exceed the statutory authority that Congress provided to the agencies and threaten the ability to offer quality and affordable benefits in compliance with applicable laws. 

¹ SAMHSA (2023), Key substance use and mental health indicators in the United States: Results from the 2022 National Survey on Drug Use and Health (HHS Publication No. PEP23-07-01-006, NSDUH Series H-58), https://www.samhsa.gov/​data/​report/​2022-nsduh-annual-national-report.
² Mark, T.L., Parish, W. (2024), Behavioral health parity—Pervasive disparities in access to in-network care continue, RTI International, https://dpjh8al9zd3a4.cloudfront.net/​publication/​behavioral-health-parity-pervasive-disparities-access-network-care-continue/​fulltext.pdf.