Sweeping mental health parity rules add new requirements 

Final rules implementing the Mental Health Parity and Addiction Equity Act may require employer action before Jan. 1, 2025. The final rules amend certain provisions of existing MHPAEA regulations and add new requirements for the comparative analyses of Nonquantitative Treatment Limitations required by the Consolidated Appropriations Act, 2021. These rules are generally effective for plan years beginning on or after Jan. 1, 2025, with select provisions taking effect one year later. Although litigation challenging these rules is expected, employers sponsoring self-funded plans should consider acting before the 2025 plan year to review and revise their NQTL comparative analyses and identify the appropriate fiduciary to complete the certification.

Among other things, these final rules amend the existing parity regulations to:

• Establish a meaningful benefits standard for Mental Health and Substance Use Disorder coverage.
• Include new and revised meanings of select MHPAEA terms and provide additional guidance regarding how group health plans must define medical and surgical and MH/SUD benefits.
• Prohibit group health plans from using NQTLs that place greater restrictions on access to MH/SUD benefits by expanding upon existing design and application requirements and adopting new data evaluation requirements.
• Formally adopt a written 6-part comparative analysis framework, including a new requirement to obtain and evaluate operational data that demonstrates an NQTL doesn’t impede access to MH/SUD benefits and to mitigate any material differences in access between medical and surgical and MH/SUD outcomes where required.
• For plans subject to ERISA, require the comparative analysis to include a certification that the plan fiduciary engaged in prudent processes to select one or more qualified service providers to perform and document the comparative analysis and monitor those service providers’ performance and documentation of the comparative analysis.
• Specify how the comparative analysis must be made available to the federal agencies, plan participants and beneficiaries.
• Reflect the sunset provision for the self-funded nonfederal government plan MHPAEA compliance opt-out that was adopted in the CAA.

Sponsors of fully insured plans should be able to rely on their insurers to comply since they are directly subject to MHPAEA, but confirmation with insurers is advisable. Self-funded plan sponsors have more compliance obligations and will require assistance from one or more service providers to comply. Self-funded plan sponsors should also prepare to complete the fiduciary certification related to their comparative analyses before the 2025 plan year. Additionally, they may wish to consult with legal counsel about the likelihood of litigation challenging these rules, particularly given the recent Supreme Court decision, Loper Bright Enterprises v. Raimondo.

More details regarding these final rules, including information relating to effective dates, can be found in this Mercer GRIST Alert: Sweeping mental health parity rules add new requirements.