Industry groups comment on mental health guidance

The ERISA Industry Committee (ERIC) and the American Benefits Council have filed comments with the Departments of Health and Human Services, Labor, and Treasury on mental health parity compliance. In April, the Departments released frequently asked questions, disclosure forms, a self-compliance took, fact sheet, and report to Congress related to requirements under the Mental Health Parity and Addiction Equity Act (MHPAEA) and the 21st Century Cures Act.

ERIC. ERIC’s comments focused on the time needed for plan sponsors to prepare for and come into compliance with new requirements, more stakeholder input on the processes, definitions, and interpretations by the agencies, and flexibility by the agencies in enforcing the MHPAEA rules.

“When it comes to mental health parity rules, especially to complicated regulatory regimes related to things like non-quantitative treatment limitations (NQTLs), more clarity for plan sponsors is always a step in the right direction,” said James Gelfand, senior vice president of health policy, ERIC. “As the agencies move forward with new reporting and disclosure regimes, we hope they will continue to take input from stakeholders, and to provide the flexibility needed to ensure plan sponsors can maximize benefits for our plan enrollees, rather than waste resources on unnecessary red tape and litigation.”

ERIC’s suggested improvements, include:

  • Delaying the applicability date of the new requirements in the MHPAEA guidance documents until plan years beginning on or after a specified future date, at a minimum July 1, 2019;
  • Formally adopting new requirements through the standard regulatory process in compliance with the Administrative Procedure Act, with opportunity for public comment and in conformance with all applicable Executive Orders;
  • Focusing enforcement efforts on abusers and providing simplified compliance approaches for the great majority of group health plan sponsors and health insurance issuers for whom compliance is an accepted best practice; and
  • Issuing non-enforcement guidance for MHPAEA violations based on a good-faith compliance standard.

American Benefits Council. The American Benefits Council’s comments were focused on NQTL limitations and ERISA disclosure for MH/SUD benefits. One of the Council’s concerns is that the Departments should clarify that plans continue to have the “discretion and flexibility to define the standards for experimental and investigational treatment in their plan and plan documents, as long as any processes, strategies, evidentiary standards, or other factors considered by the plan in implementing the NQTL are comparable to and applied no more stringently to MH/SUD benefits as compared to M/S benefits.”

The Council also released comments on the MHPAEA model disclosure request form. According to the Council, “A model form that could be used by participants to request information with respect to various NQTLs could be helpful as long as it is voluntary for both the plan to accept and for the participant to use and narrowly targeted to specific NQTL disclosure requirements. Group health plans are currently subject to MHPAEA’s disclosure requirements related to a plan’s criteria for medical necessity determinations with respect to MH/SUD benefits and the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits. Plans should be permitted the flexibility to respond to such disclosure requests in ways they have identified to be most helpful to participants and beneficiaries, which may or may not include the use of a model disclosure form.”

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