Requirements Related to the Mental Health Parity and Addiction Equity Act – NQTL comparative analyses (proposed)
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Proposed federal regulations amending MHPAEA implementation to require and standardize nonquantitative treatment limitation (NQTL) comparative analyses, data collection (including network composition and outcomes), enhanced definitions, and enforcement; applies to group and individual plans and issuers subject to MHPAEA.
Proposes new regulations implementing NQTL comparative analyses requirements under MHPAEA as amended by the Consolidated Appropriations Act, 2021.
Amends the existing NQTL standard to prevent plans and issuers from using NQTLs to place greater limits on access to mental health and substance use disorder benefits compared to medical/surgical benefits.
Proposes regulatory amendments to implement the sunset provision for self-funded, non-Federal governmental plan elections to opt out of compliance with MHPAEA, as adopted in the Consolidated Appropriations Act, 2023.
Proposed rules would require plans and issuers to collect and evaluate outcomes data and take action to address material differences in access to mental health and substance use disorder benefits versus medical/surgical benefits.
Proposed rules would codify requirement that plans and issuers conduct meaningful comparative analyses of NQTLs, including standards related to network composition, out-of-network reimbursement rates, and prior authorization NQTLs.
Proposed rules provide examples clarifying that plans and issuers cannot use more restrictive prior authorization and other medical management techniques for mental health and substance use disorder benefits.
Proposed rules would implement a sunset provision for self-funded, non-Federal governmental plan elections to opt out of MHPAEA compliance.
Create a new regulatory requirement establishing minimum standards and content elements for NQTL comparative analyses and a timeframe for plans and issuers to respond to Department requests.
Amend definitions of 'medical/surgical benefits', 'mental health benefits', and 'substance use disorder benefits' to require consistency with generally recognized independent standards of current medical practice (ICD/DSM) and remove reliance on State guidelines.
New proposed definitions for 'processes', 'strategies', 'evidentiary standards', and 'factors' to clarify NQTL comparative analysis requirements.
Proposed rule imposing three independent requirements for NQTLs: no-more-restrictive requirement, design-and-application requirements, and relevant data evaluation requirement with remediation for material differences.
Coverage Criteria & NQTL Comparative Analysis
Parity and NQTL Comparative Analysis (proposed)
Proposed coverage and parity standard summary
Fundamental statutory mandate (proposed).
CAA, 2021 implementation (proposed).
Special rule to address provider-network disparities (proposed).
Proposed MHPAEA Obligations
Proposed regulations would require plans and issuers to meet the following obligations related to parity and NQTLs:
Codifies CAA, 2021 comparative-analysis obligations (proposed).
Focus on reducing network access disparities (proposed).
Examples provided in preamble clarify prohibited conduct (proposed).
Departments have prioritized MHPAEA enforcement (proposed).
NQTL Application Criteria
An NQTL may be applied to mental health and substance use disorder benefits only when ALL of the following independent requirements are satisfied:
Failure to meet any requirement renders the NQTL noncompliant and unenforceable for MH/SUD benefits.
NQTL parity analysis and design/application requirements
Covered when the following design, application, and comparative analyses demonstrate parity for NQTLs:
Basis for 'substantially all' test (proposed).
Numeric threshold defined in proposed rules.
Predominant variation used for comparability comparisons.
Exceptions exist for impartially applied independent clinical standards and narrowly tailored fraud/waste/abuse measures.
Comparability required both as written and in operation.
NQTL comparative analysis and outcomes-data requirements
Design and application requirements for NQTLs (comparative analysis and outcomes data): Covered when ALL of the following are met
CAA, 2021 requires outcomes data collection (proposed).
Departments may specify type/form/manner in guidance.
Reasonableness judged on facts/circumstances; remediation must be documented.
Plans must be prepared to provide sources and citations for evidentiary standards.
Include supporting records and samples of covered and denied claims when requested.
NQTL design/application, exceptions, network composition special rule, remediation and enforcement
NQTLs are permitted only if they are designed and applied consistent with MHPAEA parity requirements; two narrow exceptions may apply.
Fundamental operational parity requirement (proposed).
Exception does not apply if standards are not impartially applied or are altered.
These NQTLs must be narrowly tailored and documented.
Plans must evaluate cumulative effects and take corrective action or document justification if shortages persist.
Departments may require demonstration of efforts; persistent documented shortages may be excused.
Enforcement authority described in proposed rules.
Illustrative compliance and violation scenarios
Examples conclude violation or compliance based on operation vs written terms and comparability to predominant NQTLs for medical/surgical benefits.
Operational practice can determine violation even if written terms appear comparable.
Design vs operation distinction emphasized.
Example illustrates deviation from independent standards causes violation.
ASD classified as MH for these rules; ABA is a primary treatment.
Denial based on experimental designation can violate parity.
Covered when parity and design/application/data requirements are met; examples of violations
Examples and regulatory provisions describe conditions under which plan rules would violate the no-more-restrictive requirement or be compliant.
Statutory prohibitions incorporated in proposed rules.
Each example concludes the plan violates the no-more-restrictive requirement.
Illustrative remediation includes recruitment incentives, telehealth, outreach, and directory accuracy.
Departments solicit comment on defining 'meaningful benefits'.
Comparative analysis content
Plans and issuers that impose any NQTL on MH/SUD benefits must perform and document a comparative analysis for each NQTL that meets specified content requirements.
Six required elements codified in proposed new regulations.
Scope and predominant NQTL identification
Plan must identify scope and comparison set for each NQTL
Supports no-more-restrictive and predominant determinations.
Required Comparative Analysis Elements
Comparative analyses must include ALL of the following content elements:
Represents the six statutory/regulatory required elements for each comparative analysis.
NQTL parity assessment workflow
Plans and issuers must follow these steps to assess whether an NQTL is permissible for MH/SUD benefits:
Dollar-amount basis used to determine 'substantially all'.
Two-thirds threshold defines 'substantially all'.
Predominant NQTL used for no-more-restrictive comparison.
If noncompliant, plan must modify terms or operations to achieve compliance.
This excerpt focuses on proposed regulatory standards for how plans and issuers must analyze, document, and disclose nonquantitative treatment limitations (NQTLs) under MHPAEA rather than listing specific service-level coverage exclusions. It explains the Departments' proposals to codify NQTL comparative analyses, require collection and evaluation of outcomes and network data, and make those analyses available to the Departments, applicable State authorities, and participants, beneficiaries, and enrollees. (See proposed amendments and solicitation of comments, including the CAA, 2023 opt-out implementation.)
The preamble excerpt emphasizes regulatory obligations and examples to illustrate compliance with MHPAEA but does not catalog explicit clinical exclusions for particular diagnoses or treatments. Instead, it provides illustrative scenarios and clarifying examples to guide plan design, documentation, and enforcement of parity for mental health and substance use disorder benefits.
MHPAEA requires that financial requirements and treatment limitations for mental health and substance use disorder benefits be no more restrictive than the predominant requirements and limitations applicable to substantially all medical/surgical benefits in the same classification. The proposed rules reiterate this fundamental parity mandate and apply it to NQTLs such as prior authorization, step therapy, and network standards.
The Consolidated Appropriations Act, 2023 (CAA, 2023) eliminated most opt-out elections for self-funded, non‑Federal governmental plans. The proposed regulatory amendments would implement that sunset: self‑funded non‑Federal governmental plans generally may no longer elect to opt out of MHPAEA compliance, subject to narrow collectively bargained extensions described in the preamble and implementing guidance.
The proposed rules clarify that a complete exclusion of all benefits for a condition (formerly phrased as a 'permanent' exclusion) is not considered a treatment limitation under the treatment‑limitation definition; such an exclusion is instead evaluated as a separate limitation and subject to parity review when it is not generated through a broader NQTL process.
When determining whether an NQTL for medical/surgical benefits is the parity benchmark, the Departments apply a 'substantially all' test: an NQTL is treated as applying to substantially all medical/surgical benefits in a classification if it applies to at least two‑thirds of those benefits (measured by expected plan payments). The predominant variation of an NQTL is the most common variation by portion of plan payments and serves as the benchmark for parity comparisons.
The proposed rules preserve limited exceptions: plans may rely on generally recognized independent professional medical or clinical standards and on narrowly tailored fraud, waste, and abuse measures when those standards are applied impartially and meet the proposed requirements. Even when these exceptions apply, proposed documentation and, in some cases, data‑evaluation obligations remain to ensure they do not operate to restrict MH/SUD access.
Plans and issuers must base comparative analyses on permissible evidentiary sources and must not rely on factors or evidentiary standards that discriminate against mental health or substance use disorder benefits. The Departments require collection and evaluation of relevant data (including claims denials, utilization, time/distance, provider acceptance of new patients, and reimbursement rates) for NQTLs—especially for network‑composition NQTLs where additional data elements are specified.
Example 5 illustrates that higher denial percentages for MH/SUD benefits do not alone establish noncompliance if an NQTL impartially applies generally recognized independent professional standards and the processes and application are comparable to medical/surgical benefits. Nonetheless, plans must document assumptions, methods, and supporting evidence to demonstrate sufficiency of comparative analyses.
The Departments use ABA therapy examples to illustrate how treating a core, evidence‑based MH treatment as experimental or imposing additional eligibility conditions (e.g., caregiver participation) solely on ABA can violate parity. Where multiple guidelines and trials support ABA for ASD, excluding ABA or labeling it investigational may be inconsistent with the proposed NQTL standards and lead to enforcement.
The proposed rules make clear that plans that exclude primary, evidence‑based mental health treatments (for example, Applied Behavior Analysis for ASD or nutrition counseling for eating disorders) in classifications where comparable medical/surgical primary treatments are covered may fail to provide meaningful benefits and thus violate parity obligations.
The preamble states that proprietary or commercially valuable information is not exempt from disclosure in required comparative analyses. Plans and issuers must include all information and evidentiary sources specified by the proposed content requirements and make comparative analyses available to regulators and, in certain circumstances, to participants, beneficiaries, and authorized representatives.
The comparative analysis content and data requirements proposed at 26 CFR 54.9812‑2, 29 CFR 2590.712‑1, and 45 CFR 146.137 include network‑composition data and other elements but would not apply to plans that qualify for specified small‑employer or increased‑cost exemptions; the Departments note limited applicability exceptions and solicit comment on implementation.
The Departments note that prior enforcement and comparative analysis reviews have led to removal of certain plan exclusions (for example, prior exclusions for methadone in OUD treatment and some ABA exclusions) and removal of unnecessary gatekeepers, illustrating that comparative‑analysis reviews can result in expanded access.
The Regulatory Impact Analysis (RIA) states it does not account for the baseline cost of performing and making comparative analyses because those obligations were established by the CAA, 2021 and are part of the baseline; the proposed rules instead account for incremental impacts of the specific regulatory content and documentation requirements.
Reiterating the statute, the proposed rules prohibit plans and issuers from applying any NQTL to mental health or substance use disorder benefits that is more restrictive, as written or in operation, than the predominant NQTL applied to substantially all medical/surgical benefits in the same classification; the Departments emphasize parity across financial requirements, quantitative limits, and NQTLs.
The Departments note real‑world prevalence of denied or restricted MH/SUD care: audits and recent Reports to Congress found that nearly all plans initially could not demonstrate MHPAEA compliance in response to NQTL comparative‑analysis requests, and participants routinely encounter barriers and denials when MH/SUD benefits are subject to more restrictive limitations.
Plans and issuers may permissibly rely on generally recognized independent professional medical or clinical standards when those standards are applied impartially and the processes, strategies, evidentiary standards, and other factors are comparable to those used for medical/surgical benefits; this is an established narrow exception in the proposed rules but requires documentation and, in many cases, continued comparative analysis.
The Departments warn operational risks when plans deviate from independent standards: practices that differ in operation (for example, adding peer‑to‑peer steps, requiring caregiver attendance for ABA, or imposing frequent prior authorization at refill intervals) can render an NQTL more restrictive and trigger noncompliance findings, enforcement, and remediation obligations.
The proposed examples include concrete illustrations of deviations from independent professional standards that would be treated as medical‑necessity or prior‑authorization irregularities: requiring caregiver attendance for ABA as a precondition for coverage and adding extra concurrent‑review peer‑to‑peer steps for MH/SUD but not for medical/surgical benefits are presented as examples of deviations that make an NQTL more restrictive in operation.
Provider & Plan Operational Requirements
Amended NQTL standard; required comparative analyses
Proposed rules amend the NQTL standard and require plans/issuers to perform and document comparative analyses and to collect and evaluate relevant data reasonably designed to assess the impact of NQTLs on access to MH/SUD versus medical/surgical benefits; plans must apply a special rule for network composition. (Summary of operational effect.)
Do not impose more restrictive prior authorization/medical management
Plans and issuers may not use more restrictive prior authorization or other medical management techniques for mental health/substance use disorder benefits than for medical/surgical benefits; the Departments provide specific examples clarifying this prohibition.
Treat prior authorization and utilization management as NQTLs
Prior authorization and other utilization management techniques (e.g., concurrent review, retrospective review, treatment-plan requirements) are NQTLs and must be evaluated in comparative analyses to ensure comparability and parity with medical/surgical benefits.
Justify any differential application in comparative analyses
Comparative analyses must explain whether and how the plan varies application of guidelines/standards between MH/SUD and medical/surgical benefits and provide a reasoned discussion with citations or specific evidence supporting conclusions.
- Include precise definitions for any quantitative factors and citations for evidentiary sources.
- Describe any variation in application between MH/SUD and medical/surgical benefits and justify with evidence.
Document prior authorization processes (steps, reviewers, timing)
Prior authorization processes are 'processes' for NQTL analysis and must be described in detail, including steps a participant/authorized representative must take, reviewer qualifications, and timing of reviewer decisions.
- Describe procedures to submit information for authorization, including required treatment plans.
- Identify reviewer professional designations and timing of decisions.
No-more-restrictive requirement vs predominant medical/surgical NQTL
An NQTL (including prior authorization) applied to MH/SUD benefits cannot be more restrictive, as written or in operation, than the predominant NQTL applied to substantially all medical/surgical benefits in the same classification.
Prior authorization is an NQTL (subject to parity rules)
Prior authorization is explicitly listed as an example of a medical management NQTL and is therefore subject to the design, application, and comparative analysis requirements.
Ensure prior authorization NQTLs operate with parity
Prior authorization NQTLs must be designed and applied so they are not more restrictive in operation for MH/SUD benefits than the predominant prior authorization NQTL used for substantially all medical/surgical benefits in the same classification.
Avoid routine 30-day prior authorization for buprenorphine/naloxone
Requiring prior authorization at each refill for buprenorphine/naloxone (every 30 days) was identified as an operational practice that violates the no-more-restrictive requirement because it departs from generally recognized standards for OUD treatment.
Do not add MH/SUD-only prior authorization or medical-necessity conditions
Prior authorization or medical necessity policies that add requirements applicable only to MH/SUD benefits (for example, caregiver attendance for ABA) must align with independent professional clinical standards and not be more restrictive than predominant medical/surgical criteria; otherwise they violate MHPAEA.
- Document how any such requirement is consistent with independent professional standards.
Demonstrate comparability of NQTLs in writing and in operation
Comparative analyses must demonstrate comparability and relative stringency of NQTLs both as written and in operation; plans should be prepared to provide supporting evidence and sources used to set evidentiary standards.
- Include quantitative data, records, and documentation showing application of factors.
- Provide names/credentials and date of analysis.
Prior authorization comparative analysis: describe reviewers and timing
If prior authorization is an NQTL, the comparative analysis must describe the nature and timing of reviewer decisions and the professional designations and qualifications of decision-makers (e.g., psychiatrists, psychologists).
- Explain the reviewers' roles and when decisions are made during the authorization process.
Provide comparative analyses to participants and authorities on request
Comparative analyses and supporting documentation must be made available to participants, beneficiaries, and authorized representatives in connection with an adverse benefit determination and upon request to applicable State authorities and the Departments.
- Plans must provide analyses upon request in appeals and to authorized representatives.
Comparative analyses can require removal of gatekeepers
Departments' reviews have led to removal of some prior authorization and referral gatekeepers; plans should expect comparative analysis reviews to affect prior authorization and referral requirements.
- Be prepared to modify or remove gatekeepers if analyses show they are more restrictive for MH/SUD.
Calculate 'substantially all' (>= two‑thirds) using plan payment proportions
To determine whether an NQTL applies to 'substantially all' medical/surgical benefits, plans must calculate the portion of plan payments for medical/surgical benefits subject to the NQTL and determine whether that portion is at least two-thirds.
- Use dollar-amount of expected plan payments for the plan year (or portion after benefit change).
- Document assumptions and methods, and rely on plan-level claims data when credible.
Step therapy: no new specific rule in excerpt; subject to NQTL framework
The proposed rules discuss step therapy but do not establish specific new step-therapy rules in this excerpt; step therapy will be evaluated as an NQTL under the comparative analysis framework.
Include step therapy in NQTL comparative analyses
Step therapy and other NQTLs must be evaluated in comparative analyses to ensure they are no more restrictive for MH/SUD benefits than for medical/surgical benefits.
Avoid stricter step-therapy/ fail-first requirements that providers cannot meet
Fail-first or stricter step-therapy requirements that cannot reasonably be satisfied because of provider availability are identified as impermissible NQTLs in guidance and FAQs.
- Assess provider availability before imposing step requirements that could limit access.
Collect examples and data for network-related NQTLs
Plans should be prepared to include examples of NQTLs under review (such as network participation standards or time/distance access standards) and to collect supporting data demonstrating comparable application to medical/surgical benefits.
- Gather time/distance, provider counts, reimbursement, utilization, and claims denial data for analyses.
Step therapy: subject to NQTL treatment-limitation standards
Step therapy and other NQTLs are within the treatment-limitation framework and must meet the same design, application, and evidentiary requirements as other NQTLs.
Identify predominant NQTL variation by expected plan payments
When multiple variations of an NQTL exist, plans must identify the predominant variation by the portion of plan payments to which each variation applies, and ensure MH/SUD applications are not more restrictive than that predominant variation.
Step therapy explicitly included as example NQTL
Step therapy is listed among examples of NQTLs that would be subject to the proposed rules and comparative analyses.
Ensure utilization management operates comparably across classifications
Utilization management processes (e.g., concurrent review and peer review) that operate more restrictively for MH/SUD than for medical/surgical benefits may violate MHPAEA.
- Assess whether additional operational steps (peer-to-peer) apply only to MH/SUD.
Do not require MH/SUD-only peer‑to‑peer in concurrent review
Adding an extra concurrent review step (peer-to-peer) for MH/SUD but not for medical/surgical benefits creates an additional operational barrier and can render the NQTL more restrictive.
Prohibit EAP-exhaustion gatekeeper for MH/SUD major medical benefits
Requiring exhaustion of EAP counseling sessions before accessing major medical MH/SUD benefits is an NQTL applicable only to MH/SUD and is treated as violating the proposed rules.
Describe and define step therapy factors in comparative analyses
If step therapy or other utilization management functions as an NQTL, the plan must describe it, define the factors used, and show comparability to medical/surgical analogues in the comparative analysis.
Document and justify variations in step‑therapy application
Any deviations or variations in how factors (including step therapy) are applied to MH/SUD versus medical/surgical benefits must be explained, justified, and documented in the comparative analysis.
- Explain ordering/weighting of factors and reasons for deviations.
Notice after final noncompliance must explain claim reprocessing
If a plan receives a final noncompliance determination, the required participant notice must summarize corrective actions taken and explain opportunities to have claims reprocessed where applicable.
Expect removal of exclusions and gatekeepers after reviews
Comparative analysis reviews have led to removal of some exclusions and unnecessary gatekeepers, improving direct access to MH/SUD benefits; plans should expect enforcement to address such exclusions and gatekeepers.
Definition: restrictive NQTL and parity benchmark
An NQTL is restrictive if it imposes conditions, terms, or requirements that limit access; any NQTL applied to MH/SUD cannot be more restrictive than the predominant NQTL for substantially all medical/surgical benefits in the same classification.
Collect and evaluate outcomes and access data for NQTL analyses
Plans and issuers must collect and evaluate relevant data reasonably designed to assess the impact of NQTLs on access to MH/SUD versus medical/surgical benefits and must include those data in comparative analyses.
- Collect utilization, denials, appeals, in-network percentages, reimbursement, time/distance, provider acceptance, and survey data.
Prepare and disclose comprehensive comparative analyses (six elements)
Plans and issuers must prepare detailed, reasoned comparative analyses and make them available to the Departments or applicable State authority upon request; analyses must include the six specified elements and a written list of all NQTLs.
- Include description of NQTL, factors/evidentiary standards, how factors are used, demonstrations as written and in operation, and findings/conclusions.
Document actuarial/data assumptions for substantially‑all analyses
Plans must document assumptions used in actuarial or projection methods when determining substantially all/predominant analyses and rely on plan-level claims data when credible.
- Document assumptions and methods; use plan-level claims data if credible; actuary may justify alternate reasonable data.
Document mitigation actions taken for material differences
Plans must document any reasonable mitigation or corrective actions taken to address material differences in access and include such documentation in comparative analyses.
- Examples: recruitment incentives, higher compensation, telehealth expansion, help lines, outreach to out‑of‑network providers.
Failure to document comparative analyses risks enforcement and cessation
Plans and issuers are required to perform and document adequate comparative analyses for NQTLs and be prepared to submit those analyses upon request; failure to substantiate compliance can lead to Departments directing cessation of the NQTL.
Required network‑composition data for NQTL evaluation
Plans must collect data demonstrating network access parity (time/distance to providers, providers accepting new patients, provider proportions by specialty/region, reimbursement rates, utilization rates, claim counts/dollars, and participant survey data).
Maintain and provide list of all NQTLs and supporting documentation
Plans must prepare and make available comparative analyses for each NQTL, including a written list of all NQTLs and a general description of documentation considered or relied upon.
Include factor definitions, evidentiary sources, quantitative proof, and deviations
Comparative analyses must identify and define all factors used to design or apply the NQTL, include evidentiary standards and sources (with copies, dates, citations), document how each factor is used, provide quantitative data/calculations and records demonstrating application, and explain deviations between MH/SUD and medical/surgical application.
Comparative analyses are required and must be provided to regulators on request
Plans and issuers must perform and document comparative analyses as an affirmative statutory obligation and make analyses available to the Secretary and applicable State authorities upon request.
Provide standalone notice within 7 days after final noncompliance determination
If a final determination of noncompliance is issued, plans/issuers must provide a standalone plain-language notice to all participants and beneficiaries and furnish copies to the Secretary, service providers involved in claims, and fiduciaries within 7 calendar days.
- Notice must summarize corrective actions and explain how to obtain the final determination and reprocessing opportunities.
Collect/evaluate specified data and include in comparative analyses
Plans must perform and document comparative analyses of NQTLs and provide those analyses to Departments or applicable State authority upon request; analyses must include collected/evaluated relevant data such as claims denials and network metrics.
Comparative analysis availability and corrective‑action timelines
Starting 45 days after enactment of CAA, 2021, plans and issuers must make comparative analyses available to the Departments or applicable State authority upon request; proposed rules set data and documentation requirements and timelines for corrective submissions.
- If initial submission insufficient, Departments will require additional information; corrective analyses due within 45 days of initial determination.
NQTL misuse risks enforcement and suspension of the NQTL
Using NQTLs to place greater limits on access to MH/SUD benefits than for medical/surgical benefits may trigger enforcement actions; plans found noncompliant can be directed not to impose the NQTL until remedied.
Noncompliance with comparative‑analysis requirements risks enforcement and notice
Plans and issuers that do not demonstrate compliance with comparative-analysis requirements risk enforcement actions and may be required to notify enrollees following a final noncompliance finding.
Provide sufficient information when requested or respond to specified follow‑up
If a plan fails to provide sufficient information for Departments to review comparative analyses, the Departments will specify additional information required; failure to cure may lead to final determination and required notice.
Avoid conclusory or document‑dump comparative analyses; include reasoned evidence
Comparative analyses lacking supporting evidence, detailed explanations, defined factors/evidentiary standards, or demonstrations of operation comparability risk being found insufficient and triggering enforcement.
NQTL failing any required test cannot be applied to MH/SUD benefits
If an NQTL fails any of the three requirements (no‑more‑restrictive; design/application; relevant data evaluation), the NQTL violates MHPAEA and may not be imposed on MH/SUD benefits in that classification.
Enforcement may require cessation of noncompliant NQTLs until remedied
A plan found noncompliant after comparative-analysis review may be directed not to impose the subject NQTL unless and until it demonstrates compliance or remedial action.
Include claim‑denial and outcomes data per NQTL
Plans must collect and evaluate outcomes data for each NQTL, including number and percentage of relevant claims denials; failure to consider such data may lead to findings of noncompliance.
Operationally more‑restrictive prior authorization risks violation
An NQTL that is more restrictive in operation (for example, approving fewer inpatient days for MH/SUD than for medical/surgical) may violate the no‑more‑restrictive requirement and trigger enforcement.
Example: prior authorization limiting inpatient MH/SUD duration (1 day vs 7)
Approving only 1 day of inpatient MH/SUD benefits while medical/surgical benefits routinely approve 7 days is an illustrative violation of the no‑more‑restrictive requirement.
Peer‑to‑peer as extra concurrent‑review step for MH/SUD risks violation
Requiring a peer‑to‑peer step for MH/SUD concurrent review when not required for medical/surgical benefits constitutes an additional operational barrier and can be deemed more restrictive.
Frequent PA for OUD medication (every 30 days) identified as violation
Frequent prior authorization (every 30 days) for MOUD (buprenorphine/naloxone) contrary to independent professional standards is identified as an NQTL that violates the no‑more‑restrictive requirement.
Excluding ABA as experimental risks denial/enforcement
Operational exclusion of ABA therapy as experimental despite multiple guidelines and randomized controlled trials supporting its use creates denial risk and violates parity in examples.
Caregiver participation requirement for ABA risks violation
Requiring primary caregiver participation as a condition for ABA coverage (when not applied to medical/surgical benefits) deviates from independent clinical standards and is an example of a more‑restrictive NQTL.
Excluding primary MH/SUD treatments risks enforcement
Plans that exclude core evidence‑based treatments (e.g., ABA for ASD, nutrition counseling for eating disorders) or fail to provide meaningful benefits for MH/SUD compared to medical/surgical benefits risk enforcement.
Use outcomes data to detect operational noncompliance
Operational noncompliance may be identified through required comparative-analysis data; plans must evaluate utilization review rates, prior authorization requests/denials, appeals, in‑network percentages, and provider reimbursement to identify compliance issues.
Risk from missing or insufficient comparative analyses
Failure to perform and document comparative analyses of NQTL design and application risks noncompliance determinations under MHPAEA and potential enforcement action.
Medical‑judgment denials (MH/SUD) are eligible for external review
Denials based on medical judgment (including MH/SUD benefits) are eligible for external review under ACA internal claims and appeals and external review rules.
Prohibition: no more restrictive NQTLs for MH/SUD than predominant medical/surgical NQTL
Plans and issuers may not apply any NQTL to MH/SUD benefits in any classification that is more restrictive, as written or in operation, than the predominant NQTL applicable to substantially all medical/surgical benefits in the same classification.
Specific Treatment Modalities & Examples
Network composition / Provider access
Network composition and provider access provisions emphasize outcomes and network metrics.
Supports rationale for special rule on network composition.
Behavioral health services (general)
Behavioral health treatment modalities are subject to parity and NQTL comparative analyses.
Plans must include these modalities in comparative analyses where NQTLs apply.
Behavioral treatments including residential care and ABA
Treatment for Autism Spectrum Disorder (ASD) and ABA therapy addressed specifically.
ABA is a primary treatment for ASD; exclusions or added caregiver requirements can violate parity.
General NQTLs (including utilization management like prior authorization or concurrent review)
NQTLs include utilization management techniques and must meet parity standards.
Prior authorization explicitly identified as an example NQTL.
Prior authorization / medical management
Prior authorization as an NQTL must be described and justified in comparative analyses.
Operational reviewer roles and timing must be documented.
Medication for opioid use disorder (MOUD)
Example concerning medication for opioid use disorder (MOUD).
Example 6 (proposed) highlights this violation.
Applied Behavior Analysis (ABA)
ABA therapy coverage examples illustrate parity concerns.
Example 9 addresses caregiver participation requirement.
ABA, Nutrition counseling
Primary treatments for eating disorders and ASD must be provided meaningfully across classifications.
Departments solicit comment on defining 'meaningful benefits'.
Nutrition counseling
Nutrition counseling is recognized as a primary treatment for eating disorders.
Example 6 illustrates this scenario.
General NQTL application
General NQTL application guidance for documentation and reviewer description.
Required for prior authorization and similar NQTLs.
Network composition and access-related NQTLs (informational)
Network composition and access-related NQTLs require outcomes and network metrics collection.
Departments identified these data points as central in compliance reviews.
General behavioral health services (summary examples)
Behavioral health services utilization and population needs inform parity rationale.
Contextual basis for proposed rules.
Autism / ABA Treatment Parity Examples
Thresholds, Definitions, and Key Values
Visit Limits & Example Thresholds
Definitions & Key Terms
Regulatory Changes & Effective Dates
Note regarding timing and implementation: the Departments propose an applicability date for the new regulatory provisions of the first day of the first plan year beginning on or after January 1, 2025, while reiterating that statutory obligations added by the CAA, 2021 are self‑implementing (effective February 10, 2021) and that plans should already be prepared to perform and document comparative analyses. HHS has also issued guidance on operationalizing the CAA, 2023 opt‑out changes for self‑funded non‑Federal governmental plans.
The proposed rules would require plans and issuers to make comparative analyses available to the Departments or applicable State authorities upon request and set specific submission timing expectations; the preamble and proposed regulatory text describe how Departments or States may request analyses and the information to be provided, and note certain exemptions (e.g., small‑employer/increased‑cost) that limit applicability of those specific timing provisions.
Documentation expectations for NQTL comparative analyses are extensive: the Departments propose that plans collect and evaluate relevant outcomes and network data, include specified evidentiary sources and quantitative demonstrations, document assumptions and methods, and record mitigation or corrective actions. The preamble summarizes these proposed documentation and data‑collection elements and cross‑references the statutory and regulatory citations guiding the proposed approach.
The proposed rule text and preamble set deadlines and availability windows for comparative analyses: statutory provisions require that plans be prepared to make analyses available upon request, the Departments propose specific submission timeframes (including a 10 business day availability window for certain participant requests and a 45‑day corrective‑action submission period following an initial noncompliance determination), and the RIA and preamble discuss these timing references in the context of enforcement and plan readiness.
Denials based on medical judgment—including decisions about mental health and substance use disorder benefits—remain eligible for external review under applicable ACA internal‑claims, appeals, and external review rules; the Departments note that claim denials rooted in medical‑judgment determinations can be escalated to external review processes when statutory criteria are met.
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