Under the ACA, mental health and substance use disorder services are one of 10 essential health benefits that must be (1) included in health plans offered in the individual and small group markets, and (2) offered by Medicare programs in states that are expanding their Medicaid programs. These services include behavioral health treatment, counseling, and psychotherapy.  The ACA requires these services by amendment to the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

On November 8, 2013, the final rule implementing MHPAEA were released.   <www.dol.gov/ebsa/pdf/mhpaeafinalrule.pd> The new regulations apply to individual health insurance coverage for policy years beginning on or after July 1, 2014, and apply to both grandfathered and non-grandfathered plans. The final rule preplaces the interim rule that applied to plan years beginning on or after July 1, 2010.

In general, the final rule:

• requires insurance benefits (both services and items) for mental health and substance use disorder conditions to be comparable to benefits for medical and surgical conditions;

• states that copays, deductibles, and visits limits for mental health and substance use condition benefits cannot be more restrictive than they are for medical and surgical benefits;

• requires parity for intermediate levels of care – care that falls between a visit to a doctor and care in a hospital – such as care received in residential treatment or intensive outpatient settings;

• provides for disclosure to consumers of what benefits are provided, how coverage is determined, and what standards are used to evaluate claims;

• applies parity to all plan standards, including geographic limits, type of facility limits, and network adequacy; and

• eliminates an exception in the interim rules regarding non-quantitative treatment limitations between medical/surgical benefits and mental health/substance use disorder benefits that was determined to be confusing, subject to abuse and unnecessary.

The final rule responds to criticisms that the interim final rule was vague and allowed insurers too much room for interpretation, including in the area of parity between nonquantitative treatment limitations for medical and surgical benefits and NQTLs for mental health and substance use disorder benefits. Examples of NQTLs provided in the final rule are medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or whether treatment is experimental or investigative; formulary design for prescription drugs; standards for provider admission to participate in a network, including reimbursement rates; methods for determining a course of treatment; exclusion based on a failure to complete a course of treatment and restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits for services provided under the plan or coverage; and first-fail policies or step protocols, which allow the insurer to refuse to pay for higher cost therapies until it can be shown that lower-cost therapy is not effective.

As to this last NQTL, the final rule provides an example, in which a plan requires prior authorization to determine whether a treatment is medically necessary. In the example, inpatient medical/surgical benefits are routinely approved for seven days, after which a treatment plan must be submitted by the patient’s attending provider and approved by the plan, however inpatient mental health/substance use disorder benefits routinely receive approval for only one day, after which a treatment plan must be submitted and approved.  This NQTL  violates the final rule, “because it is applying a stricter nonquantitative treatment limitation in practice to mental health and substance use disorder benefits than is applied to medical/surgical benefits.”

Whether the final rule will be more effective than the interim final rule at preventing discriminatory NQTL – or discrimination in general between medical/surgical claims and claims for mental health/substance use disorder – remains to be seen.