On September 5, 2019, the DOL issued final FAQ guidance (Part 39) addressing compliance issues under 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 FAQs, which were jointly prepared by the DOL, HHS, and Treasury (Departments), also address implementation issues under the 21st Century Cures Act (Cures Act) and the SUPPORT for Patients and Communities Act (Support Act) (see Legal Updates, Obama Signs 21st Century Cures Act Into Law and President Trump Signs SUPPORT for Patients and Communities Act).

Along with the FAQs, the DOL also issued:

In general, the MHPAEA:

(See Practice Notes, Mental Health Parity: Overview and Mental Health Parity: NQTLs and Other Issues.)

Under the MHPAEA disclosure requirements, plans and insurers must disclose:

The disclosure rules also require ERISA plans to provide participants, on request, information about the processes, strategies, evidentiary standards, and other factors used to apply a nonquantitative treatment limitation (NQTL) regarding medical/surgical benefits and MH/SUD benefits under a plan.

In prior FAQs (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). The DOL issued an initial draft version of such a form in June 2017 (see Legal Update, Mental Health Parity Form Would Assist Participants in Requesting Plan Documents).

In April 2018, the DOL made available a collection of guidance addressing compliance issues under the MHPAEA, including proposed FAQ guidance and an updated form for requesting documents about NQTLs (see Legal Update, DOL Mental Health Parity Guidance Includes Proposed FAQs and Updated Self-Compliance Tool).

In finalizing the FAQs, the Departments:

The final FAQs emphasize the importance of documenting factors used in setting and applying a particular NQTL. Specifically, plans should document factors used in deciding to:

The final FAQs also include an FAQ on requesting information from the plan regarding NQTLs that affect MH/SUD benefits.

Several of the final FAQs address whether specific plan designs and practices are consistent with the MHPAEA and its implementing guidance. For example, one FAQ involves a plan's medical management standard under which experimental or investigative treatments are excluded for both medical/surgical and MH/SUD benefits. The plan's design defined experimental or investigative treatments as those having a rating below "B" in the Hayes Medical Technology Directory, with exceptions for medically appropriate treatments having a "C" rating.

In practice, however, the plan:

After concluding that this medical management standard is an NQTL, the Departments indicated that the practice violated the MHPAEA. This is because although the plan used the same evidentiary standard for medical/surgical and MH/SUD benefits (that is, the definition of experimental), it applied a different evidentiary standard – and did so more stringently – for MH/SUD benefits than for medical/surgical benefits. Specifically, the plan reviewed C-rated medical/surgical treatments to determine if they were medically appropriate, but denied claims for C-rated MH/SUD treatments without review to assess medical appropriateness.

The DOL also finalized an MHPAEA claims form that participants and beneficiaries may use to request information from a health plan concerning NQTLs. The form replaces earlier versions issued in:

Like the earlier versions, the final disclosure form:

The form warns users that although they may submit the form to obtain information helpful in appealing a benefits denial, they must follow a plan's general internal claims and appeals procedures to formally appeal a denied claim involving MH/SUD benefits (see Practice Note, Internal Claims and Appeals Under the ACA).

The form also asks users to specify one or more reasons why a claim for MH/SUD benefits was denied, for example, that:

The form allows individuals to request the following types of MH/SUD benefits-related documents or information from the plan:

The claims form also permits requests to be made on an individual's behalf by the individual's authorized representative.

Among other topics, the Part 39 FAQs focus heavily on plan document disclosures involving MH/SUD benefits. And several of the resources in this latest round of mental health parity guidance address the government's ongoing enforcement efforts regarding parity violations. In recent years, the mental health parity rules have also become the topic of significant litigation in the federal district courts. It wouldn't be surprising if ERISA penalty claims – for plans that fail to timely provide parity-related documents in response to participants' requests – become a regular claim by plaintiffs in litigation involving the parity rules. Plans and insurers should expect to receive participant requests for plan information regarding plan limits affecting MH/SUD benefits (and related information) and should be prepared to timely respond to those requests.