As the January 2025 effective date commenced, The ERISA Industry Committee (ERIC) brought a legal complaint challenging the September 2024 Mental Health Parity and Addiction Equity Act (MHPAEA) final rules. The new administration reviewed the complaint and requested an abeyance of the lawsuit while they enter a period of non-enforcement of the final rules and work toward adjusting the rules to remedy every complaint brought forth in the lawsuit. The plaintiff agreed to that proposal and the court granted the stay.
On Thursday, May 15, the official policy of non-enforcement was published. Health plans are subject to the 2013 MHPAEA final rule, CAA-21 and FAQs Part 45.
Applies To:
All employers with more than 50 employees that sponsor a group health plan covering mental health and/or substance use disorder (MH/SUD) benefits.
Go Deeper:
With this announcement, enforcement of the September 2024 MHPAEA final rule will not occur for at least 2025 or 2026. Some of the material provisions not enforced include:
- Changes to the non-quantitative treatment limit (NQTL) comparative analysis, such as the six required content elements (so go back to the five elements prior which were slightly different), and more details around comparability and stringency. Note, however, the analysis itself has been required since February 10, 2021, and is still required.
- Fiduciary certification about the NQTL analysis
- Having only 10 days to respond to a government request for the required analysis(so employers will once again have 30 days to respond)
- 2026 requirements of “the meaningful benefits standard, the prohibition on discriminatory factors and evidentiary standards, the relevant data evaluation requirements,” and the impact of those three areas for future analyses
“The Departments will not enforce the 2024 Final Rule or otherwise pursue enforcement actions, based on a failure to comply that occurs prior to a final decision in the litigation, plus an additional 18 months. This enforcement relief applies only with respect to those portions of the 2024 Final Rule that are new in relation to the 2013 final rule. The Departments note that MHPAEA’s statutory obligations, as amended by the CAA, 2021, continue to have effect.”
Practical Impact to Employers:
Not having a fiduciary certification requirement regarding the analysis is welcome relief, but employers still have a fiduciary duty to monitor their plans and service providers to ensure they comply with the law.
The NQTL comparative analysis has been required of all plans since February 10, 2021, and will continue to remain a requirement. While regulators in the September 2024 final rule “assumed that health insurance issuers will fulfill the data request for fully insured group health plans” and “also assumed that TPAs and other service providers will fulfill the requirements for the vast majority of self-funded group health plans”, the reality is employers nationwide are largely not receiving a financial, QTL or NQTL analysis specific to their plan every year. For every analysis the government has seen over the last four years, none (as in zero plans, insurance companies or third-party administrators nationwide) have produced a sufficient comprehensive analysis. So, there is still much work to be done.
We will watch for the Departments to revisit the September 2024 final rule to rescind some provisions and request comment on adjusting some provisions. As a reminder, the CAA-21 under President Trump’s prior term four years ago is when the NQTL analysis became required of all group health. Under the new administration, transparency proving compliance with MHPAEA remains a top priority.
Ultimately, no plan should impose cost-sharing (deductible, copay, etc.), a treatment limit (number of visits or other similar numeric limit), or NQTL (prior authorization, step therapy or fail-first requirement, etc.) to an MH/SUD benefit without being able to first justify it operates in parity per MHPAEA rules.
Therefore, employers should continue to pursue securing their own plan’s financial, QTL and NQTL comparative analysis, demonstrating every cost-share (deductibles, copays, etc.), treatment limit or NQTL imposed on MH/SUD care is no more restrictive that what is usually applied for medical/surgical benefits in that same classification. Pay particular attention to benefits that are more frequently problematic, such as autism spectrum disorder, eating disorders, and medication-assisted treatment for opioid use disorder.
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