In the United States, mental health (“MH”) and substance use disorder (“SUD”) (collectively “MH/SUD”) have continued to represent areas of intense concern. During the COVID-19 pandemic, the MH struggles of essential workers and health care professionals were pushed to the forefront. However, issues related to MH/SUD have continued to escalate.

Currently, in the United States, 1 person dies by suicide every 11 minutes,[1] and “suicidal behavior among children has sharply increased over the past decade[,]” with known “suicide attempts in children ages 10 to 12” having increased “from 1,058 in 2010 to 5,606 in 2020[.]”[2] Additionally, the 12-month period ending in April 2021, represented the first time overdose deaths exceeded 100,000 in the United States, a massive increase from the 71,000 reported in 2019.[3] And, that same year, “[m]ore than 16% of people aged 12 and older in the U.S. met the applicable DSM-5 criteria for having a substance use disorder[.]”[4]

These startling, and frankly unacceptable, numbers have motivated lawmakers and government agencies to take more serious action in order to continue to address ongoing barriers to access to MH/SUD treatment, such as in-network MH/SUD provider shortages and the disparate, and often prohibitive, costs involved in MH/SUD treatment versus medical or surgical care. Therefore, on August 3, 2023, the Departments of Labor, Health and Human Services, and Treasury (collectively the “Departments”) released a comprehensive proposed rule to the Mental Health Parity and Addiction Equity Act (“MHPAEA”).[5]

MHPAEA requires covered individual and group health plans and issuers of health insurance (collectively “Health Plans”) to collect and evaluate data and address the material differences between access to MH/SUD benefits when compared to medical/surgical benefits. Its purpose is to ensure that Health Plan members who seek MH/SUD treatment do not face greater barriers than members who seek medical treatment.

This proposed rule (the “2023 Proposed Rule”) regulates the financial requirements, quantitative treatment limitations (“QTLs”), and non-quantitative treatment limitations (“NQTLs”) that Health Plans use when designing and administering Plan benefits and provides crucial instruction to the Departments aimed at facilitating increased enforcement of MHPAEA’s requirements and stricter penalties for noncompliance.

The 2023 Proposed Rule is comprehensive. Some of the significant challenges addressed include:

• Codifies the requirement that Health Plans conduct meaningful comparative analyses to measure the impact of NQTLs including prior authorization, provider rates, and network composition.
• Outlines six (6) elements that must be included in a Health Plan NQTL comparative analysis and establishes form requirements for the comparative analysis including the date of the analysis, the title and credentials of all relevant participants, and an assessment of any experts’ qualifications, and signature by a Health Plan fiduciary.
• Adds new definitions, amends existing definitions, and clarifies when and how a NQTL may be used on Behavioral Health benefits. The document discusses the need for and goals of the rule, noting that the Departments found that none of the NQTL comparative analyses they reviewed had enough information and documentation.
• Affirms that provider rates and network composition are NQTLs subject to MHPAEA’s comparability requirements.[6]
• Prohibits Health Plans from relying on factors or evidentiary standards that discriminate against Behavioral Health benefits and requires Health Plans to measure the data collected and evaluate the outcomes resulting from the application of a NQTL to Behavioral Health benefits.
• Outline the timeframes and process for Health Plans to give their comparative analyses to the Departments, applicable State authority, health care provider, or Health Plan member.
• Discusses potential penalties for third-party administrators (TPAs) who do not comply with MHPAEA.

The comment period ended on October 17, 2023 and, once finalized, the 2023 Proposed Rule will be effective for group Health Plans on January 1, 2025 and effective for individual Health Plans on January 1, 2026.

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[1] Substance Abuse Mental Health Servs. Admin., Key Substance Use and Mental Health Indicators in the United States: Results from the 2019 National Survey on Drug Use and Health (Sept. 2020), https://www.samhsa.gov/data/sites/default/files/reports/rpt29393/2019NSDUHFFRPDFWHTML/2019NSDUHFFR090120.htm.

[2] David C. Sheridan, et al., Changes in Suicidal Ingestion Among Preadolescent Children from 2000 to 2020, 176(6) JAMA Pediatrics 604-606 (2022), https://jamanetwork.com/journals/jamapediatrics/article-abstract/2789948; Ctrs. for Disease Control Prevention, Youth Risk Behavior (2011 – 2021), https://www.cdc.gov/healthyyouth/data/yrbs/pdf/YRBS_Data-Summary-Trends_Report2023_508.pdf.

[3] Ctrs. for Disease Control Prevention, Vital Statistics Rapid Release: Provisional Drug Overdose Death Counts (2021), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm (last visited March 6. 2024).

[4] Dep’t Health Hum. Servs., SAMHSA Announces National Survey on Drug Use and Health (NSDUH) Results Detailing Mental Illness and Substance Use Levels in 2021 (Jan. 4 2023),  https://www.hhs.gov/about/news/2023/01/04/samhsa-announces-national-survey-drug-use-health-results-detailing-mental-illness-substance-use-levels-2021.html.

[5] 29 C.F.R. Part 2590 (Aug. 3, 2023).

[6] The Departments concurrently issued a technical release which contains specific guidance on how Health Plans should measure their provider networks.