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HR Policy Raises Concerns with Mental Health Parity Proposed Rule

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Authors: Margaret Faso

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In comments submitted to the Labor Department earlier this week, HR Policy addressed concerns with the proposed mental health parity rule and urged the administration to reconsider the requirements it would impose on employer plans in the final rule. As written, the proposed rule would greatly increase the burden on employers through increased nonquantitative treatment limitation (NQTL) outcomes collection and analyses, fiduciary liability, and backdoor benefit mandates on plans, among other changes.

The proposed rule includes requirements that will be unworkable for most employers, impacting their ability to provide crucial mental health benefits. HR Policy will continue to engage with the administration to make the regulations more practical for employers.

Provider shortages make network adequacy compliance difficult. The rule significantly increases the evaluation of network adequacy and composition. It states that if data demonstrates material differences between mental health and medical/surgical access, then the plan fails the NQTL requirement for network composition.   In our comments, HR Policy argues against the network adequacy requirements stating, “It will be years, if not decades, before the shortage can be adequately addressed despite the best efforts of all stakeholders to meet their parity obligation in the proposed rule.”

The proposed rule:

  • Increases the standards related to network composition and network adequacy metrics, provider reimbursement rates, and prior authorization requirements.
  • Requires plans to provide undefined “meaningful benefits.” Under the proposed rule, if a plan provides treatment for a specific condition in one benefit classification, it must provide for treatment in all six benefit classifications. For example, if a plan covers treatment for autism (e.g., ABA therapy) on an outpatient/in-network basis, the plan must also provide the autism benefit in the other five benefit classifications.
  • Requires employer plans to collect and evaluate specific data points related to network composition, such as the number and percentage of relevant claims denials, in-network and out-of-network utilization rates, network adequacy metrics (including time and distance data, and data on providers accepting new patients), and provider reimbursement rates (including as compared to billed charges).
  • Requires employers to certify third-party administrator’s analyses. One or more named plan fiduciaries are required to review a written list of all NQTLs, a general description of the documentation relied on in preparing the comparative analysis, and the findings and conclusions of each NQTL analysis. The fiduciaries must then certify whether they found the comparative analysis to comply with the content requirements of the regulations.
  • Requires employer plans to collect, evaluate, and consider the impact of various outcome data (e.g., claim denial rates) and take “reasonable action” to address “material differences” in accessing mental health and substance use disorder benefits compared to medical/surgical benefits – such action must also be documented in the employer’s NQTL comparative analysis (Note: material difference is not defined in the proposal).
Separately, HR Policy submitted comments on a Technical Release stating that the proposed employer safe harbor should be extended from two years to five years. We also commented that reimbursement rates should never be compared to billed charges, but instead be compared to median in-network rates.

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