Last week, the Departments of Labor, Treasury, and Health and Human Services (the “Departments”) issued a nonenforcement policy regarding the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) final regulations, issued in 2024 as they relate to nonquantitative treatment limitation (NQTL) comparative analysis. The policy provides that the Departments will not enforce the 2024 Final Rule or otherwise pursue enforcement actions prior to the resolution of ongoing litigation and for 18 months after, and that they intend to “undertake a broader reexamination of each department’s respective enforcement approach under MHPAEA.”
The announcement stems from a complaint filed against the Departments late last year by the ERISA Industry Committee (ERIC). ERIC’s suit argued that in issuing the 2024 final regulations, the Departments had exceeded their authority under the law by requiring plans to measure their parity “in access,” rather than limiting testing to measure parity based on the plan’s terms. The complaint alleged that the 2024 final rule created “new, ambiguous requirements,” arguing that these requirements would discourage employers from offering certain benefits. In early May, the Departments filed a motion in the case asking the court to place the case in abeyance while they “reconsider the 2024 Rule at issue in this litigation, including whether to issue a notice of proposed rulemaking rescinding or modifying the regulation.” The Departments issued their non-enforcement policy shortly after filing their motion.
The Department's non-enforcement only applies to “those portions of the 2024 Final Rule that are new in relation to the 2013 final rule.” Therefore, the MHPAEA statute, including the CAA 2021 amendments and the 2013 final regulations still apply. This means that health plans are still required to conduct and document comparative analyses of their nonquantitative treatment limitations, but that the new, more rigorous analysis requirements will not currently be enforced nor will a plan fiduciary have to certify compliance with their fiduciary duties in selecting and overseeing a service provider in the comparative analysis. The original deadline to complete an NQTL comparative analysis was February 10, 2021. If you have never completed a NQTL comparative analysis for your plan or it has not been updated recently, it is still advisable to have the analysis done, as that requirement is statutory.
We anticipate ongoing changes in the enforcement and guidance on the MHPAEA in the future, and we will continue to provide updates on new developments as they arise. If you have any questions on the MHPAEA or any other benefit plan questions, please contact any of the attorneys in our Employee Benefits group.
