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MHPAEA Self-Funded Plans and NQTL Analysis | The Phia Group

By: Jon Jablon, Esq.

For most of the industry, the acronym “NQTL” has become a bit of a four-letter word. From the annoyance of the additional compliance burden itself to the resources needed to satisfy the requirements, we’re all feeling the sting of the new requirement to analyze and document a given health plan’s NQTL parity. (As a very brief recap, an NQTL is a nonquantitative treatment limitation, or a non-numerical difference between a limitation placed on the average medical or surgical benefit versus a comparable average mental health or substance abuse disorder benefit. Aptly, the relevant law is called the Mental Health Parity and Addiction Equity Act.)

This is a burden imposed by Congress and interpreted and enforced by various regulatory bodies including HHS and the DOL. Those regulators, however, are unfortunately not the only folks who are empowered to demand to see a copy of a plan’s analysis! Federal regulations (found in part at 29 CFR 2590.712[d][3]) explain that “instruments under which the plan is established or operated”, for the purpose of ERISA disclosure, now include the plan’s comparative analysis of NQTLs. Specifically, this regulation contemplates that the analysis is essentially an extension of the SPD with respect to relevant claims and appeals.

The irony is that a participant or claimant cannot know what exactly the analysis says until the individual reads it, resulting in what some are worried will become a standard request with all appeals or, worse, an ad-hoc “just because” request. After all, any given mental health or substance abuse disorder claim could have had an impermissible NQTL applied to it, in theory – and even for medical or surgical claims, it’s not clear whether a lack of parity will have some effect on the treatment or at least the perception of those claims, even though not “protected” in the same way mental health or substance abuse benefits are.

When we couple that with the general ERISA requirement that “instruments under which the plan is established or operated must generally be furnished to plan participants within 30 days of request”, as this regulation reminds us, the result is that plans that are late to the party in terms of performing their NQTL analyses may find themselves in some very hot water. The DOL and HHS are already, let’s say, less than thrilled about the state of mental health parity compliance, and they have promised to ramp up compliance. Given the relatively limited resources of those regulatory bodies, plan participants’ and beneficiaries’ requests for these analyses and perhaps complaints if they are not received (or even if a given analysis is not kept up-to-date) could become a major supplemental enforcement mechanism for the regulators to rely on.


The DOL and HHS are on the prowl. The No Surprises Act has already got the self-funded industry in a tizzy, and this added mental health parity burden isn’t making things any easier. Phia is here to help, as always, so if you’re in need of an NQTL analysis or if you have any questions, please don’t hesitate to contact us at Phia-NQTL@phiagroup.com.