David Didier Johnson

The regulators for the Mental Health Parity and Addiction Equity Act (MHPAEA) have just issued guidance on health plan disclosures for non-quantitative treatment limitations (NQTLs).  This guidance consists of an FAQ and a proposed model form for plan members to request information so they can determine whether their plan’s NQTLs are at parity.

The regulations define NQTLs broadly as non-numerical/non-dollar limits on the duration or scope of plan benefits, such as medical necessity and prior authorization requirements.  Over the past two years, Federal and State regulators have increasingly centered enforcement on NQTLs.  But because the term NQTL is so broad, their examinations are often not well-focused, creating compliance challenges.

The new model form could help limit these wide-ranging regulatory forays.  The form asks the member to identify a claim that was denied and to indicate the specific NQTL the plan cited as the basis for the denial.  It then provides a list of NQTLs that appear to be those the regulators believe are most likely to affect benefits.  This list includes plan rules on medical necessity, experimental/investigational services, prior authorization, step therapy and fail first standards, drug formularies, access to in-network providers, and provider reimbursement rules.

One purpose of the form is to “encourage uniformity among State reviews of health insurers’ compliance with the NQTL standards.”   (FAQ at page 2).  This suggests regulators should focus enforcement efforts on the more significant NQTLs—the items listed on the model form—and not engage in open-ended investigations of other medical management tools.

The model form lists information that plans must provide in response.  The list includes: plan language on the NQTL and the medical/surgical and mental health benefits to which it applies; the factors and evidentiary standards used to develop the NQTL; the methods and analysis used to develop the NQTL; and “any evidence” to establish that the NQTL is applied no more stringently to mental health than medical/surgical benefits.  To clarify that plans are not expected to make a massive document dump in response to the form, it may be helpful for the regulators to create a response form which permits the necessary information to be provided in a summarized manner.

The regulators plan to finalize this form by mid-December, and ask for comments to be submitted by September 13, 2017.