Mental Health Parity Form Would Assist Participants in Requesting Plan Documents | Practical Law

Mental Health Parity Form Would Assist Participants in Requesting Plan Documents | Practical Law

The Departments of Labor (DOL), Health and Human Services (HHS), and Treasury have issued FAQ guidance addressing mental health parity compliance under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The FAQ addresses treatments for eating disorders in the MHPAEA context. The Departments also issued a draft form for use by participants and their representatives in requesting plan documents concerning a plan's or insurer's MHPAEA-related compliance.

Mental Health Parity Form Would Assist Participants in Requesting Plan Documents

Practical Law Legal Update w-008-6541 (Approx. 6 pages)

Mental Health Parity Form Would Assist Participants in Requesting Plan Documents

by Practical Law Employee Benefits & Executive Compensation
Law stated as of 19 Jun 2017 • USA (National/Federal)
The Departments of Labor (DOL), Health and Human Services (HHS), and Treasury have issued FAQ guidance addressing mental health parity compliance under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The FAQ addresses treatments for eating disorders in the MHPAEA context. The Departments also issued a draft form for use by participants and their representatives in requesting plan documents concerning a plan's or insurer's MHPAEA-related compliance.
On June 16, 2017, the DOL, HHS, and Treasury (Departments) issued FAQ guidance addressing whether treatments for eating disorders are subject to the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) (see Practice Notes, Mental Health Parity: Overview and Mental Health Parity: NQTLs and Other Issues). The Departments also made available a draft form for use by participants and their authorized representatives in requesting:
  • Information from health plans and insurers about nonquantitative treatment limitations (NQTLs) that may impact mental health/substance use disorder (MH/SUD) benefits.
  • Documentation following a benefit denial involving MH/SUD benefits to support an appeal of the denial.

MHPAEA Requirements

In general, the MHPAEA:
  • Requires that financial requirements and treatment limits imposed on MH/SUD benefits cannot be more restrictive than the predominant financial requirements and treatment limits that apply to substantially all medical and surgical benefits.
  • Imposes disclosure requirements on group health plans and insurers.
Under the disclosure requirements, plans and insurers must:
  • Disclose the criteria for medical necessity determinations regarding MH/SUD benefits to current or potential participants, beneficiaries, or contracting providers on request.
  • Furnish the reason for denials of reimbursement or payment for services regarding MH/SUD benefits to participants or beneficiaries.
(See Legal Updates, DOL FAQs Address MHPAEA Compliance, Final Mental Health Parity Rules Clarify Plan Disclosure Requirements, and Wellness, Obesity, Lactation Counseling, Mental Health, and More at Issue in Latest DOL FAQs.)
The disclosure requirements include an obligation that ERISA plans provide participants, on request, information about the processes, strategies, evidentiary standards, and other factors used to apply an NQTL regarding medical/surgical benefits and MH/SUD benefits under a plan.
In FAQs issued in October 2016, the Departments requested comments on whether they should issue model forms to assist participants and their representatives in requesting documents regarding NQTLs (see Legal Update, Parity Portal, Opioids, and Fail-First Requirements Addressed in Latest Guidance).

Treatment of Eating Disorders

In the June 2017 FAQ, the Departments clarified that the MHPAEA applies to benefits that plans or insurers offer to treat eating disorders. Under the MHPAEA's implementing regulations, mental health benefits are benefits regarding items or services for mental health conditions:
  • As defined under the governing plan or coverage terms.
  • Consistent with both federal or state law, and generally recognized independent standards of current medical practice.
According to the Departments, eating disorders are mental health conditions. As a result, treatment of an eating disorder is a mental health benefit for MHPAEA purposes.
Consistent with the 21st Century Cures Act (Cures Act), the Departments also requested comments on whether any additional clarification was needed regarding how the MHPAEA's requirements apply to treatment for eating disorders (see Legal Update, Legislation Addresses Mental Health Parity, Eating Disorders, HIPAA, and HRAs for Small Employers).
Under the Cures Act, a plan or insurer that provides coverage for eating disorder benefits (including residential treatment) must provide these benefits consistent with the parity requirements for MH/SUD benefits under the Public Health Service Act (PHSA), ERISA, and the Code.

Draft Form for Requesting NQTL Information

Along with the new FAQ, the Departments issued a draft form titled "Form to Request Documentation From an Employer-Sponsored Health Plan or an Insurer Concerning Treatment Limitations." In introductory language, the form contains a high-level overview of the MHPAEA's requirements, including the type of financial requirements and treatment limits that are subject to mental health parity. The form notes that plans must provide individuals certain plan documents addressing their benefits (including benefit coverage limits) on request, and within 30 days of when the plan receives the request. (ERISA requires that instruments under which a plan is established or operated generally be provided to participants within 30 days of a written request; see Practice Note, ERISA Litigation: Penalties for Failing to Provide Documents and ERISA Litigation Toolkit.)
In addition to certain general information, the form would ask users to specify one or more of various reasons for why their claim for MH/SUD benefits was denied. For example, these reasons might include that:
  • The treatment was not medically necessary.
  • The treatment was experimental or investigational.
  • The plan requires authorization before it will cover the treatment.
  • The plan requires the individual to try a lower-cost treatment before authorizing the treatment recommended by the individual's physician.
The form would then ask that the plan:
  • Furnish specific plan language about the limit and identify all of the medical/surgical and MH/SUD benefits to which the limit applies for a given benefit classification.
  • Identify the factors used in developing the limit and the evidentiary standards used to evaluate the factors.
  • Identify its methods and analysis used in developing the limit.
  • Provide evidence demonstrating that the limit is applied no more stringently (as written and in operation) to MH/SUD benefits than to medical/surgical benefits.

Practical Impact

Though only a draft at this point, the Departments' form offers plans and insurers a roadmap of the kinds of information they must be prepared to provide in the context of an MH/SUD-related benefit denial or government audit of MHPAEA compliance. By associating MHPAEA-related information requests with ERISA's plan document disclosure rules, the form would also give participants a clear starting point for seeking ERISA penalties if the plan fails to timely provide requested documents.
Comments regarding the proposed form must be submitted to the government by September 13, 2017.