The Department of Labor (DOL) has released a publication that identifies some plan provisions that may violate the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The MHPAEA generally requires that group health plans ensure that the financial requirements and treatment limitations on Mental Health or Substance Use Disorder (MH/SUD) benefits they provide are no more restrictive than those on medical or surgical (med/surg) benefits.
The DOL publication focuses on non-quantitative treatment limitations (NQTLs), which are non-numerical limits on the scope or duration of benefits for treatment and how to identify provisions that will require inquiry in order to determine compliance with mental health parity requirements.
Language contained in the following provisions (absent similar restrictions on med/surg benefits) can serve as a red flag that a plan may be imposing an impermissible NQTL. Further review of the processes, strategies, evidentiary standards, or other factors used in applying the NQTL to both MH/SUD and med/surg benefits will be required to determine parity compliance. Note that these plan terms do not automatically violate the law, but the plan will need to provide evidence to substantiate compliance. The categories and examples below are not exhaustive and are not a substitute for any regulations or other interpretive guidance.
I. Preauthorization & Pre-service Notification Requirements
Blanket Preauthorization Requirement for all MH/SUD services.
Treatment Facility Admission Preauthorization: Plan states that if the insured is admitted to a MH/SUD facility for non-emergency treatment without prior authorization, insured will be responsible for the cost of services received. Plan states that for inpatient (IP) MH precertification is required. Plan requires pre-notification or notification as soon as possible for non-scheduled MH/SUD admissions and reduces benefits if pre-notification is not received. Plan requires preauthorization for all MH/SUD treatment. Plan requires preauthorization or concurrent care review periodically for MH/SUD services but not for med/surg services.
Medical Necessity Review Authority: Plan’s medical management program delegates review authority to attending physicians for med/surg services but conducts reviews for MH/SUD services.
Prescription Drug Preauthorization: Plan requires preauthorization periodically for pain medications for MH/SUD conditions.
Extensive Pre-notification Requirements: Plan requires pre-notification for all MH/SUD IP services, intensive outpatient (“OP”) program treatment, and extended OP treatment visits.
II. Fail-first Protocols
Progress Requirements: For coverage of intensive OP treatment for MH/SUD, the plan requires that a patient has not achieved progress with non-intensive OP treatment of a lesser frequency.
Treatment Attempt Requirements: For IP SUD rehabilitation treatment plan requires a member to first attempt OP treatment.
For any IP MH/SUD services, the plan requires that an individual first complete a partial hospitalization treatment program.
III. Probability of Improvement
Likelihood of Improvement: The plan requires the likelihood that treatment will result in improvement. Plan only covers services that result in measurable and substantial improvement in MH status within a period of time.
IV. Written Treatment Plan Required
Written Treatment Plan: For MH/SUD benefits, plan requires a written treatment plan.
Treatment Plan Required within a Certain Time Period for MH/SUD Services.
Treatment Plan Submission on a Regular Basis for MH/SUD Services.
Patient Non-compliance: Plan excludes services for SUD in the event the covered person fails to comply with the plan of treatment, including excluding benefits for SUD services if a covered individual ends treatment against medical advice.
Residential Treatment Limits: Plan excludes residential level of treatment for chemical dependency.
Geographical Limitations: Plan imposes a geographical limitation related to treatment for MH/SUD conditions.
Licensure Requirements: Plan requires that MH/SUD facilities be licensed by a State but does not impose the same requirement on med/surg facilities.