EBSA’s “red flags” could mean your plan lacks parity

The Labor Department’s Employee Benefits Security Administration (EBSA) has posted information on its website with warning signs that your health plan might contain non-quantitative treatment limitations (NQTLs) that require additional analysis to determine if the plan is in compliance with the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). Under the MHPAEA, group health plans and health insurance issuers must ensure that treatment limitations, including NQTLs, on their mental health or substance use disorder (MH/SUD) benefits are no more restrictive than those on the plan’s medical or surgical benefits.

According to these parity requirements, any processes, strategies, evidentiary standards, or other factors used to apply NQTLs to MH/SUD benefits in a particular classification must be comparable to, and applied no more stringently than, those used in applying the same limitation on medical/surgical benefits in the same classification.

In response to requests for examples that should trigger careful analysis of coverage to determine MHPAEA compliance, the EBSA has issued the following list of provisions that can serve as a red flag that a plan or issuer may be imposing an impermissible NQTL. The EBSA has stated that these terms do not, of course, automatically violate the law, but adds that the plan or issuer will need to provide evidence of compliance. Also, the following categories are not exhaustive, and they are subordinate to any departmental regulations or interpretive guidance:

Preauthorization and pre-service notification requirements. This includes blanket preauthorization requirements and treatment facility admission preauthorization requirements such as requirements of precertification for inpatient mental health treatment. It also includes situations in which a plan’s medical management program delegates its review authority to attending physicians for medical and surgical benefits, but does its own reviews for MH/SUD services, and extensive pre-notification requirements.

Fail-first protocols. This can include progress requirements, for which a plan requires, for coverage of intensive outpatient treatment for MH/SUD, that a patient has not achieved progress with non-intensive outpatient treatment of less frequency. Also included are treatment attempt requirements, which could include a requirement that a member first attempt two forms of outpatient treatment, or, for any inpatient MH/SUD services, that an individual first complete a partial hospitalization treatment program.

Probability of improvement. This could include situations in which a plan only covers services that result in measurable and substantial improvement in mental health status within 90 days.
Written treatment plan required. This could include requirements that a written treatment plan be prescribed and supervised by a behavioral health provider, that a treatment plan be submitted within a certain time period, or that a treatment plan submission is made on a regular basis.

Other. This includes provisions for patient non-compliance, such as excluding services for chemical dependency if someone fails to comply with a plan of treatment, plus residential treatment limits, geographical limitations, and licensure requirements.

SOURCE: EBSA website update, at www.dol.gov/ebsa, June 1, 2016.

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