(AP Photo/David Duprey)

Officials at the Employee Benefits Security Administration (EBSA) are trying to plug any loopholes employers and plans might try to use to distinguish between behavioral health benefits and general medical benefits.

The officials at EBSA, an arm of the U.S. Labor Department, have given hole-plugging answers in a batch of guidance concerning the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

MHPAEA supplements an earlier mental health parity law enacted in 1996.

Both laws affect only employers that choose to offer behavioral health benefits along with other medical benefits.

The 1996 law required behavioral health and other medical benefits to be similar. The new law imposes more detailed parity rules, and plans that violate the MHPAEA parity requirements could face fines of up to $100 per enrollee per day.

“Generally, MHPAEA specifies that the financial requirements and treatment limitations imposed on mental health and substance use disorder benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits,” EBSA officials say in the new batch of guidance. “MHPAEA also prohibits separate financial requirements or treatment limitations that are applicable only to mental health or substance use disorder benefits.”
 
Previously published interim final rules and guidance prohibit a “group health plan or group health insurance issuer from imposing a financial requirement (such as a copayment or coinsurance) or a quantitative treatment limitation (such as a limit on the number of outpatient visits or inpatient days covered) on mental health or substance use disorder benefits in any of 6 classificationsthat is more restrictive than the financial requirements or quantitative treatment limitations that apply to at least 2/3 of medical/surgical benefits in the same classification,” officials say. “Thus, if a plan generally applies a $25 copayment to at least 2/3 of outpatient, in-network, medical/surgical benefits, a higher copayment could not be imposed on outpatient, in-network mental health or substance use disorder benefits.”
 
The new parity rules also apply to “nonquantitative treatment limitations,” such as medical necessity standards, drug formulary designs, provider network participation standards, and exclusions based on failure to complete a course of treatment.

Plans may be able to impose some differences when “recognized clinically appropriate standards of care may permit a difference,” officials say.

But, in the new guidance, officials say a plan may not require a utilization reviewer to determine that a mental health or substance abuse treatment is medically necessary unless the plan also requires a medical necessity review for medical and surgical care.

Requiring a medical necessity review only for behavioral health care, “violates MHPAEA’s prohibition on separate treatment limitations that are applicable only to mental health or substance use disorder benefits,” officials say.

A plan cannot routinely approve 7 days of inpatient care for general medical problems and just 1 day of inpatient care for behavioral health problems, but, if a plan uses an orderly evidence-based process to set specific utilization review standards for many types of care, including behavioral therapy, that might be allowed, officials say.

If a plan requires preauthorization for a few types of general medical care but all types of behavioral care, EBSA officials might view that kind of design with skepticism, officials say.