Grassroots Action Center

New Proposed Regulations to Enforce Mental Health Parity
August 7, 2023 by NBCC Government Affairs

On July 25, the Biden Administration announced a proposed federal rule to improve access to mental health care in the commercial health insurance market. The rule would ensure mental health benefits in private health plans more closely mirror physical health benefits.

The rule would reinforce 2008’s Mental Health Parity and Addiction Equity Act (MHPAEA) by requiring health plans “to make sure people have equivalent access between their mental health and medical benefits,” according to a fact sheet released by the White House.

MHPAEA was meant to address unequal access to mental health and addiction care. The law stipulates that financial requirements and treatment limitations for mental health or substance use disorder benefits, including copayments and prior authorization requirements, must be no more restrictive than those for all other medical benefits. Insurers have largely failed to comply with the law.

Zoom In: The proposed regulation released on July 25 by the Federal Departments of Labor, Health and Human Services (HHS), and the Treasury would require health insurers to collect and evaluate outcomes data and take corrective actions to ensure their benefits are administered equally, with particular attention to network composition and the frequency of out-of-network benefits use. The rule would also prohibit more restrictive techniques like prior authorization requirements or narrower networks for mental health providers. Noncompliant health plans could face fines.

recent Kaiser Family Foundation report found that nearly 75% of privately insured adults who receive mental health care services experience health insurance problems. The White House intends to reduce these issues through the new administrative actions included in the proposed rule.

The proposed regulation would also close existing loopholes by requiring nonfederal governmental health plans such as state government employees to comply with the requirements—which would affect nearly 100,000 consumers.

Why It Matters: This proposed rule would help increase accessibility and affordability of behavioral health care for consumers, ensure comparable reimbursement for mental health practitioners, and incentivize more people to enter the behavioral health workforce. That means less hassle and paperwork, better payment, and more marketplace opportunities for counselors.

The Backstory: The HHS, Labor, and Treasury Departments also released their latest “MHPAEA Comparative Analysis Report to Congress,” which focuses on the departments’ efforts to enforce the comparative analysis requirements established by Congress in 2021. The report reflects the continuing struggles with MHPAEA compliance. Reporting specifically on the departments’ enforcement efforts regarding nonquantitative treatment limitations (NQTLs)—such as prior authorization requirements—the departments highlighted that none of the comparative analyses initially submitted by health plans were sufficient to demonstrate parity compliance.

The agencies also provided a “Technical Release” that offers further guidance on the types of data that are particularly relevant to network composition/adequacy.  

Next Steps: The key federal agencies also solicited comments regarding the data to be collected and a potential future enforcement safe harbor that would apply to network accessrelated violations. The proposed rules were published in the Federal Register on August 3 and will now enter a 60-day comment period. After further analysis, NBCC will determine if it is necessary to submit comments to the key federal departments on the proposed parity rule. NBCC will alert NCCs on any follow-up actions the federal government takes to enforce parity regulations.

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