The Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Department of Treasury has recently issued new proposed Mental Health Parity and Addiction Equity Act (MHPAEA) regulation, along with their report to Congress regarding MHPAEA enforcement activities. The proposed rules, when adopted, will likely take effect for plan years beginning on or after January 1, 2025.

Among several things, the new rules emphasize network adequacy for mental services, and propose a 3 part test, applicable to non quantitative treatment limitations (NQTLs) contained in the mental health benefit plan design:

1. A “predominant/substantially all” test similar to what currently applies to quantitative treatment limitations and financial requirements to prohibit NQTLs from being more restrictive when applied to mental health when compared to medical benefits,

2. Specific requirements related to the design and application of the NQTLs, and 

3. The need for group health plans to collect, evaluate, and address relevant data on access to these  benefits as compared to medical benefits.

CMS states “for an NQTL comparative analysis to be sufficient, it must contain a detailed, written, and reasoned explanation of the specific plan terms and practices at issue, and include the bases for the Issuer's conclusions that the NQTL complies with MHPAEA.”

The key takeaway is an increase in audit activity, with additional emphasis placed on employer group health plan compliance. Employers with fully insured plans will be able to rely on their carriers for compliance with the substantive changes, while self insured employers may need to work with the TPAs and ASO providers more closely.

The technical release 2023-01P can be viewed here.