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00;00;02;11 - 00;00;31;05
Noreen Vergara
Hello. Thank you for visiting the Mental Health Parity and Addiction Equity Act, or MHPAEA, informational page for Husch Blackwell’s Health Care Regulatory Group. The Federal Departments of Health and Human Services, Labor and Treasury recently released a significant update to MHPAEA enabling regulation. We've made a few recordings to explain these changes and discuss their potential impact on the health care industry.
00;00;31;17 - 00;01;02;22
Noreen Vergara
We will continue to add to these recordings in the weeks and months ahead. All future information will be added to this page as it is released, so please bookmark it and visit us in the future whenever you have ta MHPAEA question. Although seemingly focused on a tiny set of health care benefits, mental health and substance use disorder treatment, collectively, behavioral health has a large scope and has expansive testing, reporting and audit requirements.
00;01;04;03 - 00;01;38;21
Noreen Vergara
MHPAEA applies to most individual and group health plans sold today in the United States. There remain some exceptions for small employers and for those plans created before 2008. For different reasons but similar in affect, Medicare, TRICARE, Medicaid and the Children's Health Insurance Program, or CHIP, have limited, if any, MHPAEA compliance requirements. Each of those programs are governed by their own separate regulatory frameworks.
00;01;39;12 - 00;02;14;06
Noreen Vergara
These recordings and this page is solely focused on the 2024 MHPAEA final rule and its impacts. We hope you enjoy listening to us digest these new regulatory changes and appreciate that you chose to visit us. Please visit us in the future as we add more content. Thank you for spending your time with us. Thank you for joining us today, where we explore the latest news and trends and mental health benefits and changes to federal behavioral health policy.
00;02;14;22 - 00;02;38;06
Noreen Vergara
I am your host, Noreen Vergara. I am a partner in Husch Blackwell's Healthcare industry group. And I have with me today Natasha Sumner, my colleague at the firm, to talk about the existing regulatory framework of MHPAEA and how it is changing with this new rule. Today we are going to talk about non quantitative treatment limitations and the requirement to perform a comparative analysis.
00;02;39;01 - 00;03;08;23
Noreen Vergara
So I wanted to provide a couple of definitions first. MHPAEA stands for the Mental Health Parity and Addiction Equity Act. Sometimes I'll refer to it as parity or MHPAEA, but it I'm referring to the same thing. It is a federal law that prohibits health plans from applying more restrictive limitations or requirements to mental health and substance use disorder benefits than the medical or surgical benefits.
00;03;09;25 - 00;03;42;02
Noreen Vergara
Health plans is a big general term that encompasses a lot of different types of managed care coverage. For this conversation when we talk about health plans, we're including both fully insured health insurance and also self-funded employer sponsored group health plans that are governed by ERISA. We're also talking about policies that a person can buy on the health insurance exchange, and we're also talking about church plans.
00;03;42;02 - 00;04;11;29
Noreen Vergara
So there's a lot of different types of products that are required to comply with MHPAEA. There is a similar law or a similar parity law that applies to Medicaid services, but we're not going to include that in our conversation today. We're focusing on just more the general or commercial MHPAEA, the Medicaid regulation is very similar, but we're just not going to focus on it for this part of the conversation.
00;04;12;04 - 00;04;49;14
Noreen Vergara
So MHPAEA aims to ensure that health plans are using treatment limitations, in particular a type called a non quantitative treatment limitation or NQTL, in a fair and consistent way across their mental health and substance use disorder benefits, or we call them behavioral health benefits and also their medical surgical benefits. Fair and consistent across both types. And also that health plans can produce and demonstrate their compliance to both regulators and to members upon request.
00;04;50;04 - 00;05;22;03
Noreen Vergara
So for the next 15 minutes or so, my colleague Natasha Sumner and I, we are going to explain what MHPAEA and kind of the new 2023 proposed rule means for health plans, employers, providers and, you know, patients, consumers and and health plan members. We're also going to talk a little bit about what challenges and opportunities MHPAEA presents for improving both access to care, but also the quality of behavioral health care.
00;05;22;25 - 00;05;46;04
Noreen Vergara
We're not going to go into the entirety of MHPAEA compliance today. This is only a kind of a 15, 20 minute chunk. And we're breaking MHPAEA compliance into different chunks. So today we're focusing on non quantitative treatment limitations and we'll get into the definition of that in just a moment. So to start off, Natasha, what does MHPAEA require
00;05;46;20 - 00;05;51;27
Noreen Vergara
regarding treatment limitations that are non quantitative?
00;05;52;21 - 00;06;39;18
Natasha Sumner
Sure, thanks Noreen. So the current regulation that that we're going to be talking about first was issued in 2013. And what that does is it requires health plans to perform and document what they call a comparative analysis of the design and application of each NQTL for mental health and substance use disorder benefits and for medical and surgical benefits. What this analysis must demonstrate is that those NQTLs are comparable to and applied no more stringently than those applied to medical and surgical benefits in the same classification.
00;06;39;27 - 00;07;04;27
Natasha Sumner
So for instance, if you have like inpatient would be one type of classification. So we're going to look at inpatient in a particular group and look at whether some type of NQTL is applied in the same way for the medical surgical benefits of that inpatient versus the medical versus the mental health and substance use disorder for that comparable inpatient.
00;07;05;19 - 00;07;36;18
Natasha Sumner
The analysis has to include specific information and evidence that's really important evidence to support the health plans decisions and rationale, such as factors used to design and apply the NQTL sources and methods used to define and measure the factors. Evidentiary standards and thresholds used to evaluate the factors and the comparative and quantitative results of the analysis.
00;07;36;28 - 00;07;55;08
Noreen Vergara
That is a lot of measurement and documentation requirements to look at benefits for our audience who who don't spend their days thinking about parity like we do. Can you can you explain NQTLs a little bit and go into kind of what are they essentially?
00;07;55;18 - 00;08;21;00
Natasha Sumner
Yeah. So the definition of NQTL are limits on the scope or duration of benefits for treatment that are not expressed numerically. And the reason that that last part of that definition is in there is because, as you mentioned, Noreen, there are also other MHPAEA requirements and one of them has to do with more of the numerical side of things, which we're not talking about today.
00;08;21;21 - 00;08;50;06
Natasha Sumner
So what we're talking about today are things scope or duration of limits on scope or duration of benefits for treatment that are not expressed numerically. So examples of this would that are commonly used by health plans. Most of you, if not all of you've heard at least some of these things like pre-authorization requirement that therapy exclusions for certain treatments, utilization review, network adequacy or provider reimbursement rate.
00;08;50;25 - 00;09;16;28
Noreen Vergara
The health plans have to measure NQTLs across you know how they do utilization review and how they measure their network and the different types of therapies. What types of reporting do health plans have to provide their kind of department of insurance or even the Department of Labor regarding NQTLs?
00;09;17;06 - 00;09;54;09
Natasha Sumner
Yeah, sure. So reporting is actually a big area of compliance with the interesting is that the these reporting requirements weren't actually there were no real reporting requirements until 2021. So basically what this requirement says is that if the department's or if like a member asked for the comparative analysis and documentation, that those have to be provided. And so there isn't something up front that says have this done by this date and then mail it in.
00;09;54;10 - 00;10;16;20
Natasha Sumner
Right. So that providing to is upon request. But that's a big but that doesn't mean that a health plan should wait to do the analysis until somebody asks. That's a way to actually get in a lot of trouble because the requirement that the time frame for when the request is made and when it needs to be provided is very, very short.
00;10;17;16 - 00;10;36;18
Natasha Sumner
So what folks need to be doing, health plans need to have this done ahead of time, and then they will have everything in place so that if, you know, plan participant, you know, an enrollee or a state regulator or federal regulator asks for it, they have it immediately to provide.
00;10;37;03 - 00;11;02;08
Noreen Vergara
And that is a critical point that this is a process or documentation, that that takes a fair amount of time and and thought by by the plan to to figure out and the turnaround time, if you get a request for information or a request for your comparative analysis is very, very short of, you know, 14 days or 15 days.
00;11;02;08 - 00;11;34;00
Noreen Vergara
It it's not enough time to perform the analysis and then provide it. So having this ready to go is really important to be able to show to regulators a spirit of compliance in an environment of compliance. We also talked a little bit earlier about, you know, the the scope of MHPAEA and how employer or self-funded employer sponsored health plans are required to comply with this law.
00;11;34;00 - 00;11;58;07
Noreen Vergara
And this is a factor that maybe many employer groups aren't aware of, is that the liability flows kind of through the third party administrator to the health plan directly. And this can be challenging for many employers because they often don't administer their own health plan. They use a TPA vendor or a third party administrator vendor for, you know, for this purpose.
00;11;58;16 - 00;12;05;08
Noreen Vergara
What are some of the challenges that go along with MHPAEA compliance when you when you use a TPA?
00;12;05;26 - 00;12;48;03
Natasha Sumner
Yeah, absolutely. So, I mean, as you can imagine, access, right. To the information and the processes that are used by the TPA is typically these people, they design and well apply the NQTL. Right. So the employer in some ways is really kind of, you know, hands off in that sense. So having that access and that control over the information and then, you know, being able to get that information and provide those and analysis upon request and, you know, taking corrective action if a plan is found to be non-compliant with MHPAEA.
00;12;48;17 - 00;13;13;25
Natasha Sumner
We'll talk at the very end about maybe a few things that folks can do to kind of help make these challenges a little less daunting. So, you know, we talked about the current regulations and you mentioned that there is a recent proposed final rule. This is the same departments that have issued a final a proposed final rule, and they issued that last year in 2023.
00;13;15;05 - 00;13;24;27
Natasha Sumner
And I was hoping, Noreen, that you could just talk a little bit about maybe some of the key provisions and sort of what those implications are for these health plans.
00;13;25;08 - 00;14;20;02
Noreen Vergara
Oh, sure. So the 2023 rule really is is pretty expansive and goes through the kind of whole life cycle of MHPAEAs existence. And one thing that I think is key in this rule is that the departments really look at the definitions of benefits and clarify both the definitions of medical, surgical and mental health disorder benefits in a way that more aligns with the statute itself, but also more aligns with independent standards and clinical standards such as the ICD or International Classification of Diseases manuals and the DSM or the Diagnostic and Statistical Manual of Mental Disorders.
00;14;20;24 - 00;15;15;23
Noreen Vergara
This is a significant, though, maybe understated change in that it provides consistency for the health plans, but also TPAs in performing these comparative analysis on behalf of health plans. It provides consistency on what to look for on guidance of factors and evidentiary standards. This has been an area of difficulty for health plans in the past, and those who have been tasked to perform comparative analyzes one of the benefits of bringing in counsel early in the process is that it helps kind of have a forward thinking and a bit of a defensive posture thinking down the road about potential areas of litigation and thinking through areas of difficulty of compliance, a significant change in the
00;15;15;23 - 00;15;47;04
Noreen Vergara
regulation also regarding definitions is that it's confirmed this rule confirms that eating disorders and autism spectrum disorders are included in the mental health definition for the purpose of parity compliance. That has been a, autism in particular has been an area of litigation, area of heavy review by regulators determining whether it's a benefit that is subject to parity or whether it is not.
00;15;47;13 - 00;16;01;01
Noreen Vergara
And this final rule really puts a stamp on that, that autism is on the behavioral health side of the benefit classification and should be considered as such for a parity analysis.
00;16;01;17 - 00;16;16;14
Natasha Sumner
Yeah, that's a great point. Thinking ahead to litigation, because it will only increase as we see generally in our, you know, throughout these different regulations. And I suspect that that will probably increase if this proposed rule is finalized.
00;16;16;26 - 00;16;44;08
Noreen Vergara
I want to shift gears a bit and address how technology and similar advances that are enabling big data are having an impact on compliance and the expectations of regulators, health plans and members. The expectations are increasing, the penalties are increasing and the ability for plans to understand what they're supposed to do about the benefits, the cost of care, what they need to provide their employees and their and their members.
00;16;44;08 - 00;17;13;25
Noreen Vergara
That needs to increase as well. It needs to increase as well for third party administrators, health plans, employer groups and their members to know what their behavioral health benefits actually offer them and how to access them. There's a forward looking component to MHPAEA compliance also that health plans are required to address the causes of material differences in access to behavioral health care benefits versus medical surgical benefits.
00;17;13;25 - 00;17;57;27
Noreen Vergara
And they're required to mitigate and address those causes of the discrepancies between the two types of benefits and depending on your location and the available providers in your area, this can require really some consistent and evolving intention to make sure that your network or the plan’s network is truly adequate and stays adequate over time. Now that we're kind of in this era of big data plans and TPAs have the ability to access information and views into their network or views into their population that they manage in ways that hadn't even been considered before.
00;17;57;27 - 00;18;28;20
Noreen Vergara
And that can play into the ability to determine whether a particular NQTL meets MHPAEA analysis or MHPAEA standards or not. So finally, kind of thinking down the line a little bit, I think the audit component of this rule change and I mentioned earlier the reliance on data, but the audit component is really pretty significant. Health plans are required to collect data and review data.
00;18;29;24 - 00;18;53;11
Noreen Vergara
Some of the data that health plans are required to look at is include the percentage of relative or relevant claims denials and data regarding network composition, benefit utilization, different types of elements, different quality elements to meet various reporting requirements both at the state and federal level.
00;18;53;27 - 00;19;27;10
Natasha Sumner
Yeah, that's a great point, Noreen. And you know, the reason that that data is is so important in this proposed final rule is there is an additional requirement in this proposed rule that health plans must report to the federal departments actions that they take to improve compliance with the MHPAEA regulations based on findings of the comparative analysis or of course, feedback from the regulators.
00;19;27;10 - 00;20;12;10
Natasha Sumner
So some examples of types of actions that one might take would be expanding telehealth or, for instance, ensuring that network directories are reliable and accurate. Some states are requiring health plans to file their NQTL analysis when they file their annual financial statement with the Department of Insurance. So I think the takeaway here is that health plans will need to take a more comprehensive approach when they are looking at and compiling data and evidence compliance to show compliance with MHPAEA and address any instances where areas of differences are identified in that assessment.
00;20;12;24 - 00;20;32;29
Noreen Vergara
So there is a whole universe of information, data, NQTLs that health plans and TPAs can review, and it's hard to know where to start. So Natasha, what's your top tip for our audience regarding their NQTL comparative analysis?
00;20;33;15 - 00;21;10;17
Natasha Sumner
Right. Yeah. So I mean, this one may seem obvious, but you would be surprised. So the first thing is really to look at their plan design, right? Look at the plan design and look for red flags. So conducting, you know, document. So not just looking at but actually documenting a comprehend is a rigorous comparative analysis of the NQTLs that you use both for mental health and substance use disorder benefits and the medical and surgical benefits, and then be prepared to disclose and report it upon request and be prepared to take any corrective actions if needed.
00;21;11;14 - 00;21;14;00
Natasha Sumner
Noreen, what about you? What is your top tip?
00;21;14;14 - 00;21;50;26
Noreen Vergara
Well, I think I think mine is that employers, particularly self-funded employers, should review their service contracts with their TPAs, make sure that your contract addresses the comparative analysis requirement that it's somebody is performing it and documenting it, and that you have your roles and responsibilities set out concerning MHPAEA compliance. That is one affirmative step that you can take to ensure that this is completed and that you're able to meet the statute and the regs requirements.
00;21;51;07 - 00;22;26;08
Noreen Vergara
Take a look at your TPAs and your policies and procedures. What are their NQTLs and and how are they applying those? As the plan sponsor, an employer group retains the responsibility for oversight and responsibility for their vendors. It's still, you know, a self-funded health plan is the responsibility of the employer. Here is an area where external counsel, actuarial assistance or other types of advisors can help out here to assist with improving compliance quality of care.
00;22;26;26 - 00;22;53;24
Noreen Vergara
We've also seen assistance or movement toward preventing litigation. Litigation is increasing with health plans in this area and also increasing against TPAs directly. We expect that to continue because the departments are enforcing MHPAEA, but they're also looking for direct authority to audit and enforce MHPAEAs against TPAs directly.
00;22;54;06 - 00;23;23;13
Natasha Sumner
Yeah, that's a that's a great point, Noreen. And the other thing is always good to ask questions and particularly around the plan's network composition because network is such a big component to this proposed final rule. So looking at methods for determining reimbursement rates and credentialing standards, as well as procedures for ensuring that the network includes an adequate number of each category of provider and facility that will be providing services under the plan.
00;23;23;22 - 00;23;57;05
Noreen Vergara
Well, thank you so much, Natasha, for joining me. And we're at time. Thank you all for listening. And we hope that you found this episode informative, interesting and helpful. Please stay tuned for upcoming episodes where we will dive into the weeds of MHPAEA more and we also have a couple of blog posts on MHPAEA compliance. And please visit our page where we have resources and contact information for both Natasha and myself as well as other members of our team.
00;23;57;26 - 00;24;07;11
Noreen Vergara
Thank you so much for joining us.