Complicated Employer Obligations Under Final Mental Health Parity Rule

The final mental health parity rule released earlier this week includes several complicated compliance obligations for employers which will likely increase the cost of offering behavioral health benefits. The final rule would increase the burden on employers through increased nonquantitative treatment limitation (NQTL) outcomes collection and analyses, fiduciary liability, and backdoor benefit mandates on plans.

Why it matters: Since the Covid-19 pandemic, the U.S. has been increasingly focused on addressing the mental health crisis, particularly related to accessing providers and the cost individuals pay to receive mental health care. Employers have devoted a significant amount of time to implementing strategies to improve their employees’ overall wellbeing and increase access to mental health providers, many of which are not practicing in health plan networks.

Rule increases employer obligations: The final rule does not include the HR Policy-opposed mathematical test for nonquantitative treatment limitations. However, it still requires employers to conduct a comparative analysis of their policies and procedures between mental health and medical/surgical benefits.  

• Network composition: The administration has been particularly focused on increasing the number of providers in health plan networks. A large part of the rules focused on the nonquantitative treatment limitations, like provider pay, imposed on mental health benefits. This will prove particularly difficult for employers as they have little control over the operation of plan networks.

• Meaningful benefits: The rule requires employers to offer “meaningful benefits” across benefit classifications which some have argued could amount to a benefit mandate on employers. For example, if a plan covers treatment for autism (e.g., ABA therapy) on an outpatient/in-network basis, the plan must also provide the autism benefit in the other five benefit classifications.

• Certification requirement revised: The final rule did remove the HR Policy-opposed certification requirement. It instead requires employers to certify they have been involved in a prudent process when selecting the third parties that administer benefits and conduct the comparative analyses.

What’s next: HRPA continues to analyze the rule and its impact on employers. We will release a CHRO Guide with practical steps HR teams can take to get into compliance and prepare for any potential DOL audits.