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HHS, DOL, and Treasury Issue Long-Awaited Mental Health Parity Proposed Regulations

On August 3, 2023, the US Departments of the Treasury, Labor, and Health and Human Services (Departments) issued proposed rules under the Mental Health Parity and Addiction Equity Act (MHPAEA) to reduce barriers to access to mental health and substance use disorder treatment. The proposed rules emphasize the Departments’ focus on mental health parity and aligns with their overarching goal to better ensure that health plans afford access to mental health or substance use disorder benefits as easily as medical or surgical benefits.

By way of background, in 1996, the Mental Health Parity Act of 1996 was enacted by Congress, requiring parity in aggregate dollar and annual dollar limits for mental health benefits. In 2008, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) added additional requirements, expanding the Mental Health Parity Act of 1996. The MHPAEA requires group health plans and insurance issuers to ensure that financial requirements and treatment limitations are not more restrictive for mental health or substance use disorder benefits than medical or surgical benefits. The Consolidated Appropriations Act in 2021 further expanded the MHPAEA by requiring health plans that cover both medical or surgical benefits and mental health or substance use disorder benefits to conduct and document comparative analyses of non-quantitative treatment limitations (NQTL) for both types of benefits.

Although the Departments have issued a fair amount of sub-regulatory guidance regarding the NQTL comparative analysis requirement, the proposed regulations are the first formal regulatory guidance they have issued in about ten years. Recently, audits by the Departments of health plans have directed their focus to MHPAEA compliance. Plan sponsors have expressed frustration with the lack of guidance and varying applications of the existing guidance, complaining that the Departments’ requests are not supported by law, not practical in application, and contradictory.

The proposed regulations highlight the importance of MHPAEA compliance for health plan sponsors, further seeking to improve access to mental health and substance use disorder benefits. The proposed rules establish a three-part test that health plans must satisfy in order to meet the requirements to impose NQTLs on mental health or substance use disorder services. Additionally, the proposed regulations include examples regarding the application of the regulations for NQTLs for telehealth, prior authorization and concurrent review requirements, and a requirement for primary caregiver participation concerning applied behavior analysis (ABA) therapy. These examples can guide providers and health plans in assessing whether NQTLs comply with the requirements set out in the proposed regulations.

Employers and plan sponsors should take steps to ensure that they are in compliance with the additional NQTL requirements, including updating any existing analyses to come in line with the MHPAEA. Public comments may be submitted on the proposed regulations until October 2, 2023. If finalized, the proposed regulations would take effect on the first day of the first plan year starting on or after January 1, 2025.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare law and regulation. If you or your healthcare entity has any questions pertaining to healthcare audits or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or

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