Committee Health Leaders Applaud Biden Proposal to Expand Access to Mental and Behavioral Health Care

Letter

Dear Acting Secretary Su and Secretaries Becerra and Yellen:
We write in support of the Proposed Rules by the Departments of Labor, Health and Human
Services, and the Treasury (jointly, the Departments) entitled, “Requirements Related to the
Mental Health Parity and Addiction Equity Act” (the Proposed Rules).The Proposed Rules will
enhance compliance with the Paul Wellstone and Pete Domenici Mental Health Parity and
Addiction Equity Act of 2008 (MHPAEA) and advance our shared goal of removing barriers to
care. We applaud the Biden Administration and the Departments for their leadership on this
important issue and look forward to continuing to work together to further expand access to
high-quality behavioral health care.

Improving Parity in Coverage of Mental Health and Substance Use Disorder Benefits
In the more than two decades following the enactment of the Mental Health Parity Act of 1996,
federal law has sought to address the discriminatory treatment of behavioral health by group
health plans and insurers through the principle of parity—that coverage of behavioral health care
should be no more restrictive than coverage of medical and surgical care. In 2008, MHPAEA
was enacted to extend the principle of parity to specifically include substance use disorder
benefits and address nonquantitative treatment limitations (NQTLs) such as prior authorization,
step therapy, network design, and other barriers to care. The Patient Protection and Affordable
Care Act (ACA) further strengthened behavioral health coverage by requiring small employer
plans to cover treatment of mental health and substance use disorders (MH/SUD) as an
“Essential Health Benefit” and by applying parity to coverage purchased in the individual
market.
Despite this historic progress, the Departments and state enforcement agencies continue to face
challenges in making parity a reality, particularly with respect to discriminatory NQTLs imposed
on MH/SUD benefits. The Department of Labor’s Employee Benefits Security Administration
has found that violations of parity often involve NQTLs imposed by group health plans,
requiring corrective actions such as removal of impermissible prior authorization requirements
and the recalculation of out-of-network reimbursement rates.
In an effort to improve oversight of NQTLs, the Consolidated Appropriations Act, 2021 (CAA, 2021) required group health plans and issuers to perform comparative analyses that document NQTLs imposed on MH/SUD benefits and make such analyses available to regulators upon request. However, reports to
Congress issued in 20228 and, most recently, July 20239 show widespread noncompliance with
these requirements.
The Statement of Purpose Articulated by the Proposed Rules Will Help Improve Meaningful
Compliance with MHPAEA
The Proposed Rules make a valuable addition to the current MHPAEA regulations by, for the
first time, articulating a clear statement of the “fundamental purpose” of federal parity law and
instructing plans and issuers to interpret the statute and its implementing regulations consistent
with this purpose. In doing so, the Proposed Rules affirm the principle that health plans and
issuers that cover MH/SUD benefits may not impose financial requirements or treatment limitations that are more restrictive than those that are “applied to substantially all
medical/surgical benefits covered by the plan or coverage.”
Most importantly, the proposed statement of purpose clarifies the policy intent of MHPAEA to
prevent discriminatory restrictions on coverage of behavioral health care by explicitly stating that
plans and issuers “must not design or apply financial requirements and treatment limitations that
impose a greater burden on access (that is, are more restrictive) to mental health and substance
use disorder benefits under the plan or coverage than they impose on access to generally
comparable medical/surgical benefits.” The Proposed Rules’ emphasis on access to behavioral
health care is a welcome improvement that will help to ensure parity is measured by the actual
outcomes delivered to consumers, rather than as a box-checking exercise by group health plans
and issuers. This will help meaningfully improve the quality of behavioral health coverage, and
we urge the Departments to finalize this change.
The Proposed Rules Strengthen the Standards Governing NQTLs
Restrictions on coverage through NQTLs such as prior authorization, step therapy, and network
design frequently present barriers to MH/SUD care and are often applied in an impermissible
manner that violates the principle of parity. The Departments propose a three-part standard that
will allow plans and issuers to determine if an NQTL discriminates against MH/SUD benefits in
violation of MHPAEA.
Under the Proposed Rules, an NQTL may not be imposed unless three
requirements are met: (1) the NQTL is “no more restrictive” with respect to MH/SUD than it is
with respect to medical/surgical benefits; (2) the “design and application” of the NQTL satisfy
MHPAEA; and (3) the group health plan or issuer engages in collection, evaluation, and
consideration of data and takes “reasonable action” to rectify “material differences in access”
based on the data collected.These requirements are consistent with the statutory purpose of
MHPAEA and will help ensure compliance by plans and issuers and facilitate meaningful access
to behavioral health care for individuals.
With respect to the “no more restrictive” requirement, it is especially encouraging that the
Departments propose ensuring that NQTLs are evaluated against the predominant limitations
imposed on “substantially all” medical/surgical benefits. This is a major improvement over the
2013 Final Rules, which applied the “substantially all” test only to financial requirements and
quantitative treatment limitations (QTLs) and instead relied instead on a complex analysis of the
processes, strategies, and evidentiary standards in the application of NQTLs. In addition, the
data collection requirement in the Proposed Rules is a marked improvement over the 2013 Final
Rules, as it will require plans and issuers to rely upon empirical evidence when evaluating the impact of NQTLs on access to MH/SUD, consistent with the fundamental purpose of MHPAEA
and its implementing regulations.
Importantly, the Proposed Rules show that the Departments recognize the harmful impact of
NQTLs that arise in the form of limited and phantom provider networks. As witness testimony
before the Committee on Education and Labor has shown, inadequate provider networks present
a serious barrier to accessing behavioral health care that force individuals to pay for expensive
out-of-network treatment or forgo care entirely.
The Proposed Rules would take
transformational steps by making clear that reimbursement and network design decisions may
violate MHPAEA “if the relevant data show material differences in access to in-network mental
health or substance use disorder benefits as compared to in-network medical/surgical benefits in
a classification.” This standard will help increase the reliance by plans and issuers on evidence
when designing provider networks, improving access to in-network care. We urge the
Departments to finalize this proposed change.
Clarifications Made by the Proposed Rules Will Improve Implementation of the Comparative
Analyses Requirements of the CAA, 2021
Under guidance issued by the Departments, health plans and issuers have long been encouraged
to perform and document comparative analyses of MH/SUD and medical/surgical coverage to
ensure that any NQTLs placed on MH/SUD benefits are in compliance with parity.
With
enactment of the CAA, 2021, such comparative analyses became mandatory under federal law
rather than a best practice.
Although this requirement has been in effect for more than two
years, the Departments have repeatedly found that health plans and issuers routinely fail to
perform adequate analyses of their NQTLs.
By codifying the requirements of the CAA, 2021
in MHPAEA’s implementing regulations and providing detailed instructions to plans and issuers,
the Proposed Rules will facilitate compliance while further improving access to MH/SUD
benefits for consumers.
The Proposed Rules specify in detail all documentation that is necessary to ensure that a CAA,
2021-compliant comparative analysis provides meaningful justification for NQTLs. Such clarity
is key in assisting plans and issuers in understanding their obligations under the statute, while
helping to ensure that individuals are not subject to impermissible NQTLs. In addition, the Proposed Rules require plans and issuers to include, as part of these analyses, an evaluation of
standards regarding network composition and reimbursement rates for out-of-network providers,
helping ensure that network design decisions are appropriately scrutinized to verify that they do
not impermissibly limit access to behavioral health care.
Further, the Proposed Rules implement the CAA, 2021’s requirement that health plans and
issuers institute a corrective action plan when they are found to impose an impermissible NQTL.
Importantly, the Proposed Rules require notice be provided to individuals who are impacted by a
claims denial and may be eligible for benefit redetermination under their plan or coverage.
While this is a welcome improvement that will limit the harm caused by MHPAEA violations,
the Departments should also consider avenues of reducing burdens on individuals to challenge
benefit denials that relied upon an impermissible NQTL. Specifically, we encourage the
Departments, to the extent feasible within their statutory authority, to also ensure that plans and
issuers automatically reprocess denied claims without action by an individual consumer.
The Departments Should Reconsider the Proposed Exceptions to the NQTL Requirements
Contemplated by the Proposed Rules
Although the Proposed Rules take historic steps to greatly strengthen parity and provide needed
clarity for plans and issuers that will improve compliance, we are concerned that two exceptions
contemplated by the Proposed Rules could have unintended consequences. As the Departments
consider how to further strengthen this proposal, we encourage careful consideration of whether
the exceptions provided may inadvertently undermine the goals of MHPAEA and its
implementing regulations.
First, the Departments propose an exception that would allow for the imposition of certain
NQTLs that “impartially apply generally recognized independent professional medical or clinical
standards (consistent with generally accepted standards of care) to medical/surgical benefits and
mental health or substance use disorder benefits.”20 Although incorporating medical and clinical
standards into the application of parity is an understandable goal, it is unclear why a wholesale
exception from the requirements of MHPAEA is warranted on this basis. This exception could
create a loophole that allows plans and issuers to impose potentially discriminatory restrictions
on MH/SUD benefits that undermine the purpose of MHPAEA. Instead, the Departments should
consider a narrower approach that does not create an exception from parity but instead
incorporates independent professional medical or clinical standards as a factor when evaluating
an NQTL for compliance with MHPAEA.
Similarly, the proposed exception for “fraud, waste, and abuse,” may allow health plans and
insurers to impose otherwise impermissible restrictions on MH/SUD benefits, contrary to the
fundamental purpose of MHPAEA and its implementing regulations. While combatting fraud,
waste, and abuse is important, we are concerned that this exception could allow health plans and insurers to severely restrict or exclude coverage of behavioral health benefits and undermine
access to necessary care. Moreover, there is no clear statutory basis for establishing such an
exception, as Congress has never included similar language in numerous amendments to federal
parity law, including in the most recent amendments enacted in the CAA, 2021.
We encourage the Departments to reevaluate the inclusion of these exceptions in the Proposed
Rules and consider ways in which they can be further narrowed to limit the risk of creating
loopholes or undermining the goals of MHPAEA.
Oversight of Third-Party Administrators and Other Group Health Plan Service Providers is
Critical

The Departments request comment on how to incentivize compliance by entities that contract
with group health plans to administer their behavioral health benefits.

This is a critical issue, as many plan sponsors do not directly administer their group health plans, but rather delegate these functions to entities such as third-party administrators, issuers, managed behavioral care organizations, and other service providers.The Departments have long recognized that this delegation does not relieve plan sponsors of their obligations to comply with MHPAEA and other
requirements of federal law. To that end, we applaud the Departments for obtaining corrective
actions by service providers and bringing enforcement actions directly against service providers
who cause or contribute to violations of the statute. The Departments, particularly the
Department of Labor, should build upon this work by making clearer their authority to directly
enforce requirements against service providers—including third-party administrators who
purport to be acting in a non-fiduciary capacity—and taking action to improve transparency
through enforcing group health plan disclosure requirements under Section 408(b)(2) of the
Employee Retirement Income Security Act (ERISA).

The Departments Should Maintain Consumer Protections with Respect to Telehealth
Additionally, the Departments request comment regarding guidance issued during the COVID19 Public Health Emergency (PHE) that provided for non-enforcement of requirements of
federal law with respect to certain standalone telehealth benefits offered by large employers.
Although this non-enforcement policy was terminated following the conclusion of the PHE earlier this year, some have called for its reinstatement or expansion as a way of providing access
to behavioral health care. We have serious concerns with such proposals, which would
effectively exempt standalone telehealth plans from consumer protections under ERISA and
other laws while failing to meaningfully expand access to care. We urge the Departments to
continue to enforce all consumer protections under federal law with respect to coverage of
telehealth by group health plans and not to reinstate the temporary policy adopted during the
PHE.
The Proposed Rules Appropriately Implement the Repeal of the Opt-Out for Nonfederal
Governmental Plans.
Finally, we applaud the Department of Health and Human Services for its actions to implement
the repeal of the opt-out for self-insured, non-federal governmental plans. The Consolidated
Appropriations Act, 2023 made the long-overdue change of eliminating a statutory loophole
that previously allowed states to elect not to comply with parity requirements with respect to
certain group health plans sponsored by governmental entities.
We are pleased that the Biden Administration has promptly implemented this reform and ensuring the broader application of parity to public servants and their families in all states. Moving forward, we encourage continued oversight of the implementation of this change to ensure full compliance in states that had previously opted out of MHPAEA.

We appreciate the opportunity to comment on the Proposed Rules. We applaud the Departments
and the Biden Administration for your leadership on this important issue, and we hope that these
comments are of assistance as you work to finalize these regulations.

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