Last week, the Departments of Labor, Treasury, and Health and Human Services finalized regulations implementing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).  Although the final regulations step back from certain burdensome aspects of the proposed rules (which we blogged about here), compliance with the final rules will require action from virtually all group health plans that cover mental health and substance use disorder (MH/SUD) benefits before the end of the year.

How did we get here?

MHPAEA requires that group health plans that provide MH/SUD benefits cover them in parity with medical and surgical benefits.  Evaluation of whether benefits are in parity is performed for each classification of benefits under the plan, and this analysis requires evaluating: (1) financial and other quantitative treatment limitations, and (2) non-quantitative treatment limitations (NQTLs).  At the end of 2020, Congress added a requirement that group health plans document their comparative analyses for NQTLs applied to MH/SUD benefits and make the comparative analyses available upon request to regulators.

What are the significant changes in the final MHPAEA regulations compared to the current regulations?

What are the implications of the final regulations for network composition?  

The Departments have remained focused on NQTLs related to network composition (e.g., provider and facility network admission standards, credentialing standards, and reimbursement rate methodology) throughout this rulemaking process.  The final regulations do not include the proposal that outcomes data for NQTLs related to network composition showing material differences in access would automatically be deemed to violate MHPAEA.  However, the final regulations make clear that plan sponsors are expected to take significant steps to address such material differences, including by: (1) strengthening efforts to recruit mental health providers to a network (such as by increasing provider reimbursement rates); (2) expanding telehealth availability; (3) providing outreach to participants to help them find in-network providers; and (4) ensuring provider directories are up to date.  

As plan sponsors might surmise, compliance with this part of the final regulations may prove to be somewhat of a moving target and will likely require significant plan sponsor investment to ensure compliance.  Although the Departments had issued a proposed safe harbor regarding NQTLs for network composition, that safe harbor was not finalized as part of the final regulations, and the Departments have indicated they are still reviewing the comments they received in response to the proposal.

Timing takeaways for group health plan sponsors?

Since the final rules were released last week, several advocacy groups have indicated they are weighing the possibility of filing a lawsuit to set aside certain portions of the final rule on the basis it exceeds the regulatory authority of the Departments (in particular, the new “meaningful benefits” standard and outcomes data requirements, which would be effective starting in 2026). It’s hard to predict the outcome and speed at which such litigation might proceed, and whether the court’s decision would impact any portions of the rule set to take effect in 2025.  For that reason, some plan sponsors may choose to focus on compliance deadlines with a 2025 effective date for now (which is plenty to address on its own), and adopt a wait-and-see approach on the new requirements slated for 2026 until the outcome of any potential litigation becomes clearer.

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Photo of Jennifer Rigterink Jennifer Rigterink

Jennifer Rigterink is senior counsel in the Labor Department and a member of the Employee Benefits & Executive Compensation Group.

Jennifer focuses on a diverse array of tax and ERISA issues impacting employee benefits.  Her wide-ranging practice encompasses qualified retirement plans and non-qualified…

Jennifer Rigterink is senior counsel in the Labor Department and a member of the Employee Benefits & Executive Compensation Group.

Jennifer focuses on a diverse array of tax and ERISA issues impacting employee benefits.  Her wide-ranging practice encompasses qualified retirement plans and non-qualified arrangements, health and welfare benefits, and fringe benefit programs.  She counsels single-employer and multiemployer clients on matters pertaining to plan administration, design and qualification, as well as regulatory, legislative and legal compliance.

In recent years, Jennifer has advised employers and plan sponsors with fiduciary and governance matters applicable to defined benefit plans and pension de-risking activities, including lump sum window programs, annuity purchases, and pension plan terminations.

Jennifer frequently counsels clients on health and welfare arrangements, with a particular focus on all matters relating to family building and reproductive health care benefits.  Her experience also includes working with employers and plan sponsors on mental health parity compliance issues.

Prior to joining Proskauer, Jennifer clerked for Judge Jacques L. Wiener, Jr., in the United States Court of Appeals for the Fifth Circuit and Judge Yvette Kane in the United States District Court for the Middle District of Pennsylvania.

Photo of Robert Projansky Robert Projansky

Robert M. Projansky is a partner in the Employee Benefits & Executive Compensation Group and is currently a member of the Firm’s Executive Committee.

Rob has a broad practice advising both multiemployer and single employer clients on all issues related to the legal…

Robert M. Projansky is a partner in the Employee Benefits & Executive Compensation Group and is currently a member of the Firm’s Executive Committee.

Rob has a broad practice advising both multiemployer and single employer clients on all issues related to the legal compliance and tax-qualification of ERISA-covered pension and welfare plans. Rob’s clients include the largest and highest-profile U.S. media and entertainment industry clients, as well as a broad range of Fortune 500 companies.

In the multiemployer context, he serves as counsel to the boards of trustees of a number of large and small funds and frequently assists clients in addressing issues related to the funding of defined benefit pension plans, including zone status, benefit suspensions, special financial assistance and withdrawal liability. He also advises these clients on healthcare compliance, cybersecurity and government investigations. In addition, his practice includes advising corporate clients on their responsibilities related to multiemployer plans, with particular expertise on the impact of multiemployer and collectively bargained plans in corporate transactions.

Rob has extensive experience advising corporate clients regarding general compliance issues and fiduciary compliance matters, including plan asset and prohibited transaction issues. He also has addressed a myriad of issues related to complex plan investments, including negotiation of separately managed and collective investment vehicles for both traditional and alternative investments such as hedge funds, private equity funds and fund-of-funds vehicles.

Rob is described in Chambers USA as “incredibly smart and creative, and a really effective, zealous advocate” who “adroitly communicates complicated ERISA matters to clients in understandable language and well-timed levity.”  He is a widely sought after speaker on topics related to employee benefits, fiduciary, cybersecurity and government investigations and speaks each year at the annual conference and various other conferences sponsored by the International Foundation of Employee Benefit Plans, the largest educational organization in the employee benefits industry. Rob currently serves as one of the nine Advisory Directors on the Board of Directors of the International Foundation.