March 2021

Impact of the New Mental Health Parity Disclosure Rules

The federal government recently passed the Consolidated Appropriations Act, 2021 (the “CAA”). The CAA contains several provisions, including rules that add to the parity requirements that already existed under the Mental Health Parity and Addiction Equity Act (“MHPAEA”).

Background
Since the MHPAEA final regulations became effective in 2014, a plan’s parity analysis has consisted of three parts:
 

Subsequent sub-regulatory guidance (e.g., FAQs, self-compliance tool) have helped guide how the parity analysis should look, including the components of the NQTL analysis.

What does the CAA do?

  1. Codifies the NQTL analysis laid out in the previous guidance and requires plans to present that analysis upon request from a federal or state agency.
     
  2. Requires that the analysis be documented, and include the specific findings and conclusions reached by the plan.
     
  3. Effective Feb. 10, 2021, allows federal or state agencies to request a copy of such analysis.

What does the CAA change?
Before the CAA, while a plan had to be in parity, there was no federal requirement to document or disclose such parity. Instead, parity disclosures were generally required when there was a complaint, audit by a governmental agency, or a request by a member or provider.

What does the CAA not do?

  1. Doesn’t substantively change a plan’s parity analysis. The general federal parity analysis framework that has been in place since 2014 continues to apply.
     
  2. Doesn’t require any proactive disclosure, meaning plans do not need to produce their NQTL documentation to any agency immediately on Feb. 10, 2021. Instead, the analysis must only be disclosed upon request from a governmental agency. The CAA doesn’t change the previous requirements to provide a disclosure if there is a complaint, audit, or a request by a member or provider.
     
  3. Doesn’t provide any specific guidance on reporting templates to be used for the NQTL analysis.  We expect that the federal agencies will be issuing guidance in the future on what form the NQTL disclosures must take. But for now, there is no right or wrong way to disclose the information.
     
  4. Doesn’t create a federal disclosure requirement for a plan’s financial testing or QTL results.  Presumably, these disclosures continue to be required as part of a complaint, audit, or inquiry from a member or provider.

What does this mean to my plan?
While the NQTL analysis technically may be requested by governmental agencies any time after Feb. 10, 2021, given the lack of guidance at this time, it seems likely that any such requests would occur as a result of member complaints or agency audits.

Blue Cross and Blue Shield of Oklahoma (BCBSOK) has a Mental Health Parity (MHP) governance framework in place today.
 

If you have a request or questions: