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MHPAEA Compliance: The Dreaded NQTL Analysis

By: Jon Jablon, Esq.

The Mental Health Parity and Addiction Equity Act (or MHPAEA) now requires health plans to “show their work” and perform a comprehensive NQTL analysis of the health plan itself. That sentence means different things to different people; many, including me, groan from the general lack of regulatory guidance and somewhat vague rules regarding what the analysis entails. We know the basics, sure, but that’s sort of all we’ve been told.

At a high level, the MHPAEA does not require health plans to cover treatment for mental health or substance abuse disorders. If the health plan does cover that treatment, though, the MHPAEA requires generally that benefits not be more restricted for mental health and substance abuse disorder benefits than benefits provided for medical and surgical benefits. There are some nuances, but that’s the gist.

The analysis requirement applies specifically to so-called “NQTLs”, which stands for Non-Quantitative Treatment Limitations. Simply put, an NQTL is any limitation on benefits for the treatment of mental health or substance abuse disorders that is not readily countable. To illustrate the difference between a QTL and an NQTL, think about a coinsurance amount; if a given Plan pays 90% for ordinary medical/surgical benefits but pays 80% for mental health and substance abuse benefits, that is a 10% difference, and easily countable – hence it is a Quantifiable Treatment Limitation, and no analysis is necessary to know which one is more restrictive. If, to contrast, the plan requires pre-certification as a condition of all mental health or substance abuse benefits but does not require pre-certification for the majority of medical and surgical benefits, that is a treatment limitation under the MHPAEA which is not numerical – hence it is a Non-Quantitative Treatment Limitation.

Seems simple, right? Some of it will be, but every plan is different, and things are rarely quite so straightforward for every benefit. There are also some areas where figuring out what constitutes an NQTL versus a QTL is not quite so simple, and this is where it can get tough to even know what needs to be analyzed, let alone how to analyze it.

For example, consider a plan that pays medical and surgical benefits at 90% with deductible waived, and pays mental health and substance abuse disorder benefits at 100%, subject to the deductible. Although the coinsurance levels are quantifiable, and in theory so is a deductible amount (since, after all, a deductible is just dollar amounts), the deductible is case-specific; it will never be clear, until a specific claim is incurred, whether the plan has imposed a limitation that applies more stringently to mental health or substance abuse benefits than to medical and surgical benefits. What’s even more complex is that the benefits paid may be perfectly in line with the requirement of the MHPAEA (to not limit mental health or substance abuse benefits more stringently than medical or surgical benefits), but in another case that same language may violate it. Even if the plan pays mental health or substance abuse benefits at 100%, having them be subject to a deductible could perhaps still render them paid at a lower dollar amount than comparable medical and surgical benefits paid at 90% with no deductible.

It’s the little things like this that can cause the biggest headaches – not necessarily because they’re difficult to calculate, but because it can be counterintuitive that they would even constitute non-quantitative treatment limitations in the first place. Leaving them out of the analysis, even accidentally, can cause an analysis to be out of compliance.

You may be asking: “What if the regulators or patients never ask us for this analysis, though? Won’t we just have wasted our money?”

That’s possibility – but it’s the same concept as having insurance: a health plan doesn’t need the NQTL analysis…until it does. And then it’s too late. The regulators certainly don’t plan on spot-checking every plans’ analysis; they don’t have the resources for a large-scale MHPAEA audit. But, in the same way Form 5500s are now a staple request in every subrogation defense no matter how irrelevant they may be, it’s entirely possible that providers who feel they are underpaid will counsel their patients to request this analysis, in an attempt to trap plans that haven’t performed them, and somehow compel additional payment – perhaps under the threat of regulatory enforcement. Trust us – it’s nothing we haven’t seen before.

That could be a form of extortion, but it nevertheless makes me wonder: why does this legislation allow individual plan participants to request a copy of the health plan’s NQTL analysis? The average plan participant doesn’t have the subject matter knowledge to truly comprehend the analysis or to apply it to a specific claim; perhaps it’s just part of the checks-and-balances system, to make sure plans are actually performing the analysis for fear of not being able to produce the analysis when requested – but then the circle brings us back to what if the plan hasn’t performed the analysis? A patient or provider can tell the DOL – but to what end, exactly? A plan’s failure to perform this analysis doesn’t result in greater claims payment to the provider. Would reporting a plan for its failure to provide the NQTL analysis be done out of spite? Or an attempt to gain negotiation leverage (which, again, may be extortion)?

At the end of the day, it seems like the most important thing is that the plan comply with the parity requirements of the MHPAEA, since if a plan is sued for noncompliance, the plan document would be rewritten by the court to pay benefits in parity, regardless of the existing plan language. To contrast, regarding the NQTL analysis itself, we have no reason to believe that the failure to perform or provide this analysis would subject the plan to “rewriting” by the court to pay a greater amount in benefits – but there are certainly risks (such as getting on the DOL’s radar for a full audit, or potentially noncompliance penalties pending further regulatory guidance). It’s also worth mentioning that performing this analysis is a great way for health plans to find out whether or not they are truly compliant with the parity aspect of the MHPAEA!

If you need help understanding the MHPAEA, figuring out whether a given plan is subject to it, or even performing the NQTL analysis on your plan or plans you service, please don’t hesitate to contact PGCReferral@phiagroup.com!