Aca Faq 39

**Set out below is PROPOSED guidance regarding nonquantitative treatment limitations and
disclosure requirements in connection with the Mental Health Parity and Addiction Equity
Act (MHPAEA). This guidance was developed consistent with section 13001(b) of the 21st
Century Cures Act. Public comments are invited and should be submitted by June 22, 2018
to E-OHPSCA-FAQ39@dol.gov. All comments will be shared among the Departments.**

[PROPOSED] FAQS ABOUT MENTAL HEALTH
AND SUBSTANCE USE DISORDER PARITY
IMPLEMENTATION AND THE 21ST CENTURY
CURES ACT PART XX
[Date will be inserted upon finalization]
Below are responses to additional frequently asked questions (FAQs) regarding implementation
of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of
2008 (MHPAEA), as amended by the Affordable Care Act, the 21st Century Cures Act (Cures
Act), and the Employee Retirement Income Security Act (ERISA). These FAQs have been
prepared jointly by the Departments of Labor (DOL), Health and Human Services (HHS), and
the Treasury (collectively, “the Departments”). As with previously issued FAQs (available at
www.dol.gov/ebsa/healthreform/index.html and www.cms.gov/cciio/resources/fact-sheets-andfaqs/index.html), these FAQs are designed to help people understand and benefit from the law,
as intended.
Mental Health Parity and Addiction Equity Act of 2008 and the 21st Century Cures Act
In general, MHPAEA requires that the financial requirements (such as coinsurance and copays)
and treatment limitations (such as visit limits) imposed on mental health or substance use
disorder (MH/SUD) benefits cannot be more restrictive than the predominant financial
requirements and treatment limitations that apply to substantially all medical/surgical benefits in
a classification.
With regard to any nonquantitative treatment limitation (NQTL), the MHPAEA final regulations
provide that a group health plan or health insurance issuer may not impose an NQTL with
respect to MH/SUD benefits in any classification unless, under the terms of the plan (or health
insurance coverage) as written and in operation, any processes, strategies, evidentiary standards,
or other factors used in applying the NQTL to MH/SUD benefits in the classification are
comparable to, and are applied no more stringently than the processes, strategies, evidentiary
standards, or other factors used in applying the limitation to medical/surgical benefits in the same

classification. MHPAEA also imposes certain disclosure requirements on group health plans and
health insurance issuers.
Q1: What are the Departments doing to promote understanding of and compliance with
MHPAEA as required under the 21st Century Cures Act?
The Departments work with plans, issuers, and service providers to help them understand and
comply with MHPAEA, and ensure that individuals receive the benefits to which they are
entitled. The Departments also coordinate with State regulators (both individually and through
the National Association of Insurance Commissioners (NAIC)) to issue guidance to address
frequently asked questions from stakeholders in an effort to increase understanding and
compliance. Compliance assistance is a high priority and, thus, the Departments emphasize
assisting plans and issuers that are working to comply with the law’s requirements.
The Cures Act, enacted December 13, 2016, requires the Departments to, among other
requirements, solicit feedback and issue guidance regarding the disclosure and NQTL
requirements of MHPAEA. Section 13001(b) of the Cures Act requires that the Departments
issue clarifying information and illustrative examples of methods that a plan or issuer offering
group or individual health insurance coverage can use to disclose information in compliance with
MHPAEA. Section 13001(b) also directs the Departments to issue clarifying information and
illustrative examples of methods, processes, strategies, evidentiary standards, and other factors
that plans and issuers may use regarding the development and application of NQTLs such as:
1. Medical management standards based on medical necessity or appropriateness, or
whether a treatment is experimental or investigative;
2. Limitations with respect to prescription drug formulary design, and use of “step
therapy” protocols or “fail-first” policies;
3. Network admission standards (such as credentialing);
4. Factors used in provider reimbursement methodologies (such as service type,
geographic market, demand for services, and provider supply, practice size, training,
experience, and licensure) as such factors apply to network adequacy; and
5. Examples of sources of information that may serve as evidentiary standards for the
purposes of making determinations regarding the development and application of
NQTLs.
Accordingly, on June 16, 2017, the Departments issued additional MHPAEA compliance
assistance guidance regarding benefits for eating disorder treatment, and solicited feedback from
stakeholders as to whether additional clarification was needed regarding how the requirements of
MHPAEA apply to treatment for eating disorders. 1 The Departments also released a draft model
1

See FAQs about Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act
Part 38, available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/acapart-38.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQ-Part-38.pdf.

2

disclosure request form for comment and solicited feedback as to how disclosure processes may
be improved. 2 Comments were due by September 13, 2017 and are available at
https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/publiccomments/faq-38. Based on the feedback received through that solicitation, the Departments
have revised the draft model form. A copy of the revised draft model form can be found at
https://www.reginfo.gov/public/do/PRAICList?ref_nbr=201706-1210-001.
The Departments have submitted the revised form to the Office of Management and Budget
(OMB) as required by the Paperwork Reduction Act. OMB is requesting comments on the
revised form. Comments are requested on any aspect of the draft model form, including ways to
reduce burden on individuals, families, health care providers, States, group health plans, health
insurance issuers, and other stakeholders.
Please send comments on these disclosure issues to: Office of Information and Regulatory
Affairs, Attn: OMB Desk Officer for DOL-EBSA, Office of Management and Budget, Room
10235, 725 17th Street, N.W., Washington, DC 20503; by Fax: 202-395-5806 (this is not a tollfree number); or by email: OIRA_submission@omb.eop.gov. Commenters are encouraged, but
not required, to send a courtesy copy of any comments by mail or courier to the U.S. Department
of Labor-OASAM, Office of the Chief Information Officer, Attn: Departmental Information
Compliance Management Program, Room N1301, 200 Constitution Avenue, N.W., Washington,
D.C. 20210; or by email: DOL_PRA_PUBLIC@dol.gov. Commenters should submit their views
by June 22, 2018 to ensure consideration. Comments should reference control number 12100138.
In addition, based on the comments and other information received, including written and oral
comments received in connection with the HHS-sponsored listening session on mental health
parity that occurred on July 27, 2017, 3 the Departments understand that additional compliance
information is needed. Some of that information is contained in these FAQs. Other information
will be issued by the Departments on a rolling basis, including revised compliance program
documents and updated enforcement data. In addition, the Departments are aware that increased
public awareness of MHPAEA and commitment to its successful implementation has led to the
creation of partnerships among different advocacy groups that focus on developing accreditation
programs that seek to advance understanding of and compliance with the law. The Departments
2

A copy of that draft model form, as well as instructions, can be found at https://www.cms.gov/Regulations-andGuidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html or
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-and-substance-use-disorder-parity.
3
See 82 FR 30876 (July 3, 2017), available at https://www.gpo.gov/fdsys/pkg/FR-2017-07-03/pdf/2017-13959.pdf.
See also Achieving Parity in Health Insurance Coverage: 21st Century Cures Act Parity Listening Session; available
at https://www.hhs.gov/programs/topic-sites/mental-health-parity/achieving-parity/cures-act-parity-listeningsession/index.html. The Departments also reviewed DOL compliance reviews, consumer complaints and feedback
from States and other stakeholders during the Substance Abuse and Mental Health Admininistration policy forums,
among other information. See Implementation of the Mental Health Parity and Addiction Equity Act (MHPAEA),
available at https://www.samhsa.gov/health-financing/implementation-mental-health-parity-addiction-equity-act.

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are considering how such accreditation programs can be utilized as a best practice to help
increase compliance with MHPAEA. For the most current information on MHPAEA and the
Cures Act implementation, see https://www.dol.gov/agencies/ebsa/laws-andregulations/laws/mental-health-and-substance-use-disorder-parity and
https://www.hhs.gov/mental-health-and-addiction-insurance-help/index.html.
Q2. My health plan document states that it excludes treatment that is experimental or
investigative for both medical/surgical benefits and for MH/SUD services. For both
medical/surgical benefits and MH/SUD services, the plan generally follows current medical
evidence and professionally recognized treatment guidelines on the efficacy of treatment.
With respect to both medical/surgical benefits and MH/SUD services, the plan’s documents
state that the plan denies a treatment as experimental for a given condition when no
professionally recognized treatment guidelines define clinically appropriate standards of
care for the condition, and fewer than two randomized controlled trials are available to
support the treatment’s use with respect to the condition.
The plan defines Autism Spectrum Disorder as a mental health condition. More than one
professionally recognized treatment guideline and more than two controlled randomized
trials support the use of Applied Behavioral Analysis (ABA) therapy to treat certain
children with Autism Spectrum Disorder. For the most recent plan year, the plan denied
all claims for ABA therapy to treat children with Autism Spectrum Disorder under the
rationale that the treatment is experimental or investigative. With respect to
medical/surgical conditions, the plan approved treatment when supported by one or more
professionally recognized treatment guidelines and two or more controlled randomized
trials. Is this permissible?
No. A medical management standard limiting or excluding benefits based on whether a
treatment is experimental or investigative is an NQTL under MHPAEA. 4 A group health plan
may impose an NQTL if, under the terms of the plan as written and in operation, the processes,
strategies, evidentiary standards, and other factors considered by the plan in implementing the
NQTL are comparable to and are applied no more stringently than the processes, strategies,
evidentiary standards, and other factors used in applying the NQTL to medical/surgical benefits
in the same classification. Although the plan as written purports to exclude experimental or
investigative treatment for both MH/SUD and medical/surgical benefits using the same
standards, in practice, it imposes this exclusion more stringently on MH/SUD benefits, as the
plan denies all claims for ABA therapy, despite the fact that professionally recognized treatment
guidelines and the requisite number of randomized controlled trials support the use of ABA
therapy to treat children with Autism Spectrum Disorder. Accordingly, because the plan applies
4

MHPAEA regulations at 26 CFR 54.9812-1(c)(4)(ii); 29 CFR 2590.712(c)(4)(ii); and 45 CFR 146.136(c)(4)(ii)
contain an illustrative list of NQTLs that includes, among other things, medical management standards limiting or
excluding benefits based on medical necessity; formulary design for prescription drugs; network tier design; and
plan methods for determining usual, customary, and reasonable charges.

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the NQTL more stringently to mental health benefits than to medical/surgical benefits, the plan’s
exclusion of ABA therapy as experimental does not comply with MHPAEA.
Q3: My health plan generally excludes treatment that is experimental or investigative for
both medical/surgical benefits and for MH/SUD services. The plan defines experimental or
investigative treatments as those with a rating below “B” in the Hayes Medical Technology
Directory. However, the plan reviews and covers certain treatments for medical/surgical
conditions that have a rating of “C” on a treatment-by-treatment basis, while denying all
benefits for MH/SUD treatment that have a rating of ”C” or below, without reviewing the
treatments to determine whether exceptions are appropriate. Is this permissible under
MHPAEA?
No. A medical management standard that limits or excludes benefits based on whether a
treatment is experimental or investigative is an NQTL under MHPAEA. 5 A plan may impose an
NQTL on MH/SUD benefits if, under the terms of the plan as written and in operation, the
processes, strategies, evidentiary standards, and other factors considered by the plan in
implementing its exclusion with respect to MH/SUD benefits are comparable to and applied no
more stringently than, those used in applying the NQTL requirement with respect to
medical/surgical benefits in the same classification. Here, although the text of the plan sets
forth the same evidentiary standard for defining experimental as the Hayes Medical Directory
ratings below “B,” the plan applies a different evidentiary standard, which is more stringent for
MH/SUD benefits than for medical surgical benefits because the unconditional exclusion of
treatments with a “C” rating for MH/SUD benefits is not comparable to the conditional exclusion
of those treatments with a “C” rating for medical/surgical benefits. Because of the discrepant
application of the evidentiary standard used by the plan, the fact that the plan ultimately denies
some medical/surgical benefits that have a rating of “C” does not justify the total exclusion of
treatments with a “C” rating for MH/SUD. Accordingly, the plan does not comply with
MHPAEA.
Q4: My health plan documents state that the plan follows professionally-recognized
treatment guidelines when setting dosage limits for prescription medications, but the
dosage limit set by my plan for buprenorphine to treat opioid use disorder is less than what
professionally-recognized treatment guidelines generally recommend. The dosage limits set
by my plan with respect to medical/surgical benefits are not less than the limits such
treatment guidelines recommend. Is this permissible under MHPAEA?
No. Medical management standards that limit or exclude benefits based on medical necessity,
medical appropriateness, or other factors are NQTLs. 6 Plans and issuers may impose dosage
5
6

26 CFR 54.9812-1(c)(4)(ii); 29 CFR 2590.712(c)(4)(ii); 45 CFR 146.136(c)(4)(ii).
See 26 CFR 54.9812-1(c)(4)(ii)(A); 29 CFR 2590.712(c)(4)(ii)(A); 45 CFR 146.136(c)(4)(ii)(A).

5

limits as a medical management technique with respect to prescription drug coverage under the
plan. Even though these medical management techniques may result in numerically expressed
limitations (such as dosage limits), the techniques are nevertheless NQTLs. The Departments’
regulations require that the processes, strategies, evidentiary standards, or other factors used in
applying an NQTL to MH/SUD prescription drug benefits (in this case, a dosage limit on
buprenorphine to treat opioid use disorder) must be comparable to and applied no more
stringently than the processes, strategies, evidentiary standards, or other factors used in applying
dosage limits to prescription drugs to treat medical/surgical conditions. If the plan follows the
dosage recommendations in professionally-recognized treatment guidelines to set dosage limits
for prescription drugs in its formulary to treat medical/surgical conditions, it must also follow
comparable treatment guidelines, and apply them no more stringently, in setting dosage limits for
prescription drugs, including buprenorphine, to treat MH/SUD conditions.
The Departments are aware that as an alternative to following professionally-recognized
treatment guidelines, many plans and issuers use Pharmacy and Therapeutics (P&T) committees
to decide how to cover prescription drugs and evaluate whether to follow or deviate from
professionally-recognized treatment guidelines for setting dosage limits. Although the use of
P&T committees to inform dosage limits for prescription drugs in this manner does not per se
violate MHPAEA, these processes must comply with MHPAEA’s NQTL standard in practice.
For example, if the plan deviates from nationally-recognized treatment guidelines for
buprenorphine/naloxone to treat opioid use disorder based on P&T committee reports, but does
not deviate from such guidelines with respect to covering prescription drugs to treat medical
surgical benefits based on the recommendations of the P&T committee, then this deviation
should be evaluated for compliance with MHPAEA’s NQTL requirements (for instance, by
determining (1) whether the expertise of the members of the P&T committee in MH/SUD
conditions is comparable to their expertise in medical/surgical conditions, and (2) by
determining the whether the committees’ evaluation of nationally-recognized treatment
guidelines in setting dosage limits for medications for both MH/SUD and medical/surgical
conditions is comparable).
Q5: My large group health plan or large group insurance coverage provides benefits for
prescription drugs to treat both medical/surgical and MH/SUD conditions but contains a
general exclusion for items and services to treat bipolar disorder, including prescription
drugs. Is this permissible under MHPAEA?
Yes, although if the plan is insured, it would depend on whether State law permits such an
exclusion for large group insurance coverage. Generally, MHPAEA requires that treatment
limitations imposed on MH/SUD benefits cannot be more restrictive than treatment limitations
that apply to medical and surgical benefits. An exclusion of all benefits for a particular condition
or disorder, however, is not a treatment limitation for purposes of the definition of “treatment
limitations” in the MHPAEA regulations. Small employer group health insurance coverage and
individual health insurance coverage are subject to the requirement to provide essential health
6

benefits, and the determination of whether certain benefits must be covered under the
requirements for essential health benefits depends on the benefits in the applicable State’s EHB
benchmark plan.
Q6: My health plan requires step therapy for both medical/surgical and MH/SUD inpatient, in-network benefits. The plan requires a participant to have two unsuccessful
attempts at outpatient treatment in the past 12 months to be eligible for certain inpatient
in-network SUD benefits. However, the plan only requires one unsuccessful attempt at
outpatient treatment in the past 12 months to be eligible for inpatient, in-network
medical/surgical benefits. Is this permissible under MHPAEA?
Probably not. Refusing to pay for a higher-cost therapy until it is shown that a lower-cost
therapy is not effective (commonly known as “step therapy protocols” or “fail-first policies”) is
an NQTL. 7 The Departments’ regulations require that the processes, strategies, evidentiary
standards, or other factors used in applying an NQTL to MH/SUD benefits must be comparable
to and applied no more stringently than the processes, strategies, evidentiary standards, or other
factors used in applying the NQTL to treat medical/surgical conditions. Although the same
NQTL – step therapy – is applied to both MH/SUD benefits and medical/surgical benefits for
eligibility for inpatient, in-network services, the requirement for two attempts at outpatient
treatment to be eligible for inpatient, in-network SUD benefits is a more stringent application of
the NQTL than the requirement for one attempt at outpatient treatment to be eligible for
inpatient, in-network medical/surgical benefits. Unless the plan can demonstrate that evidentiary
standards or other factors were utilized comparably to develop and apply the differing step
therapy requirements for these MH/SUD and medical/surgical benefits, this NQTL does not
comply with MHPAEA.
Q7. My health plan documents state that in-network provider reimbursement rates are
determined based on the providers’ required training, licensure, and expertise. However,
medical/surgical benefits, reimbursement rates are generally the same for physicians and
non-physician practitioners. For MH/SUD benefits, the plan pays reduced reimbursement
rates for non-physician practitioners. Is this permissible under MHPAEA?
No. While a plan is not required to pay identical provider reimbursement rates for
medical/surgical and MH/SUD providers, a plan’s standards for admitting a provider to
participate in a network (including the plan’s reimbursement rates for providers) is an NQTL. A
plan may impose an NQTL if under the terms of the plan as written and in operation, the
processes, strategies, evidentiary standards, and other factors considered by the plan in
implementing its NQTL with respect to MH/SUD services are comparable to and applied no
more stringently than those used in applying the NQTL with respect to medical/surgical benefits
in the same classification. Here, the plan reduces reimbursement rates for non-physician
7

See 26 CFR 54.9812-1(c)(4)(ii); 29 CFR 2590.712(c)(4)(ii); 45 CFR 146.136(c)(4)(ii).

7

practitioners providing MH/SUD services. However, the plan does not use a comparable process
with respect to reimbursement of non-physician providers of medical/surgical services.
Accordingly, the plan’s use of this NQTL does not comply with MHPAEA.
Q8: My health plan meets applicable State and Federal network adequacy standards for
MH/SUD services. With respect to medical/surgical providers, the plan exceeds State and
Federal network adequacy standards by attempting to ensure that participants and
beneficiaries can schedule an appointment with a network provider within 15 days for nonurgent care when the individual has symptoms of a condition. The plan does not utilize a
standard relating to availability of appointments in creating its provider network for
MH/SUD services. Is this permissible under MHPAEA?
No. As explained in the preamble to the Departments’ final rules implementing MHPAEA, plan
standards such as network adequacy (although not specifically enumerated in the illustrative list
of NQTLs), must be applied in a manner that complies with the regulations. 8 The Departments’
regulations require that the processes, strategies, evidentiary standards, or other factors used in
applying an NQTL to MH/SUD benefits must be comparable to and applied no more stringently
than the processes, strategies, evidentiary standards, or other factors used in applying the NQTL
to treat medical/surgical conditions. Therefore, although a plan may use factors such as distance
standards and waiting times for participants and beneficiaries for appointments for services to
measure network adequacy, if these factors are used for these purposes they must be applied to
medical/surgical and MH/SUD benefits in a comparably manner. Here, while the plan meets
applicable State and Federal network adequacy standards, the plan does not consider how long
participants and beneficiaries may have to wait for appointments for services as a factor in
developing its network of MH/SUD providers, even though the plan considered it in developing
the network for medical/surgical providers. Accordingly, the plan does not comply with
MHPAEA.
Q9: My health plan generally covers medically appropriate treatments. The plan covers
inpatient, out-of-network treatment outside of a hospital setting for medical/surgical
conditions if the prescribing physician obtains authorization from the plan and the
treatment is medically appropriate for the individual, based on clinically appropriate
standards of care. The plan provides benefits for the treatment of eating disorders but
excludes all inpatient, out-of-network treatment outside of a hospital setting for eating
disorders, including residential treatment (which it regards as an inpatient benefit). Is this
permissible under MHPAEA?
No. The Departments’ regulations implementing MHPAEA define “mental health benefits” as
benefits with respect to items or services for mental health conditions, as defined under the terms
of the plan or health insurance coverage and in accordance with applicable Federal and State law.
8

78 FR 68239, 68246 (Nov. 13, 2013).

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Section 13007 of the 21st Century Cures Act clarified that if a group health plan or health
insurance issuer provides coverage for eating disorder benefits, including residential treatment
those benefits must be offered consistent with the requirements of MHPAEA. Accordingly, the
Departments have clarified that eating disorders are mental health conditions and, therefore,
treatment of an eating disorder is a “mental health benefit” within the meaning of that term as
defined by MHPAEA. 9
Plan or coverage restrictions based on facility type are NQTLs under MHPAEA. 10 A plan may
impose an NQTL if, under the terms of the plan as written and in operation, the processes,
strategies, evidentiary standards, and other factors considered by the plan in implementing its
exclusion with respect to MH/SUD benefits are comparable to and applied no more stringently
than, those used in applying the NQTL to medical/surgical benefits in the same classification. In
evaluating an exclusion of an intermediate level of care, including residential treatment, it must
be initially determined if the intermediate level of care is assigned to the six benefit
classifications in the same way for both medical/surgical and MH/SUD benefits. If so, then the
basis for the exclusion (in this case, residential treatment) in the classification must be reviewed
to determine if the processes, strategies, evidentiary standards and other factors that are the basis
for the exclusion of MH/SUD benefits are comparable to and applied no more stringently than
the processes, strategies, evidentiary standards and other factors used in applying the NQTL to
medical/surgical benefits in the same classification.
Following this analysis, if a plan can articulate factors that are comparable to and applied no
more stringently than to support excluding residential treatment in certain circumstances, the
plan may be able to demonstrate that the exclusion is consistent with parity standards will meet
its obligation with respect to this limitation under MHPAEA. However, in this example, the plan
provides inpatient, out-of-network treatment outside of a hospital for medical/surgical conditions
so long as a prescribing physician obtains prior authorization from the plan and the treatment is
medically appropriate for the individual, while the plan unequivocally excludes all inpatient, outof-network treatment outside of a hospital (in this case, residential treatment) for eating
disorders. This restriction on residential treatment for eating disorders is not comparable to this
plan’s coverage restrictions for inpatient treatment outside of a hospital for medical/surgical
conditions, which are less stringent. This exclusion does not comply with MHPAEA.
Q10: My health plan provides benefits for emergency room care. If emergency room care
is provided for an acute condition affecting my physical health that arises as a complication
of a mental health condition or substance use disorder, are benefits for that care considered
MH/SUD benefits for the purposes of MHPAEA?
9

See Frequently Asked Questions about Mental Health and Substance /Use Disorder Parity Implementation and the
21st Century Cures Act Part 38, available at
https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-38.pdf and
https://www.cms.gov/CCIIO/Resources/Fact-Sheets-andFAQs/aca_implementation_faqs38.html
10
26 CFR 54.9812-1(c)(4)(ii); 29 CFR 2590.712(c)(4)(ii); 45 CFR 146.136(c)(4)(ii).

9

It depends. The Departments’ regulations implementing MHPAEA define “medical/surgical
benefits” as benefits with respect to items or services for medical conditions or surgical
procedures, as defined under the terms of the plan or health insurance coverage and in
accordance with applicable Federal and State law, but not including mental health or substance
use disorder benefits. Similarly, “mental health benefits” and “substance use disorder benefits”
are defined as benefits with respect to items or services for mental health conditions or substance
use disorders, as defined under the terms of the plan or health insurance coverage and in
accordance with applicable Federal and State law. Mental health conditions must be defined to
be consistent with generally recognized independent standards of current medical practice.
Despite any underlying MH/SUD condition, if, under the terms of the plan or coverage (and in
accordance with applicable Federal and State law, the particular acute condition affecting an
individual’s physical health is defined as a medical condition, then benefits for emergency room
care provided for the diagnosis, cure, mitigation, treatment, or prevention of the acute condition
are medical/surgical benefits for purposes of MHPAEA. For example, assuming that a plan treats
all lacerations as a medical condition, if a participant with a mental health condition or substance
use disorder seeks emergency treatment for lacerations, the emergency treatment for the
lacerations would be medical/surgical benefits for purposes of MHPAEA.
If, however, under the terms of the plan or health insurance coverage (and in accordance with
applicable Federal and State law, if an insured plan), the particular acute condition affecting an
individual’s physical health is defined as a mental health or substance use disorder condition then
benefits for emergency room care provided for the diagnosis, cure, mitigation, treatment, or
prevention of the acute condition are MH/SUD benefits for the purposes of MHPAEA.
ERISA Disclosure for MH/SUD Benefits
The MHPAEA final regulations provide express disclosure requirements. Specifically, the
criteria for medical necessity determinations with respect to MH/SUD benefits must be made
available by the plan administrator or the health insurance issuer to any current or potential
participant, beneficiary, or contracting provider upon request. 11 In addition, under MHPAEA, the
reason for any denial of reimbursement or payment for services with respect to MH/SUD
benefits must be made available to participants and beneficiaries. 12 The Departments also
explained in the preamble to the final regulations that, in addition to these specific disclosure
obligations under MHPAEA, ERISA’s general disclosure obligation in section 104(b) and the
accompanying disclosure regulation at 29 CFR 2520.104b-1 provide that, for plans subject to
ERISA, instruments under which the plan is established or operated must generally be furnished
to plan participants within 30 days of request. Instruments under which the plan is established or
operated include documents with information on medical necessity criteria for both
medical/surgical benefits and MH/SUD benefits, as well as the processes, strategies, evidentiary
11
12

26 CFR 54.9812-1(d)(1), 29 CFR 2590.712(d)(1), 45 CFR 146.136(d)(1) and 147.160.
26 CFR 54.9812-1(d)(2), 29 CFR 2590.712(d)(2), 45 CFR 146.136(d)(2) and 147.160.

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standards, and other factors used to apply an NQTL with respect to medical/surgical benefits and
MH/SUD benefits under the plan. In addition, 29 CFR 2560.503-1, 29 CFR 2590.715-2719 and
45 CFR 147.136 set forth rules regarding claims and appeals, including the right of claimants (or
their authorized representative) upon appeal of an adverse benefit determination (or a final
internal adverse benefit determination) to be provided upon request and free of charge,
reasonable access to and copies of all documents, records, and other information relevant to the
claimant's claim for benefits. This includes documents with information on medical necessity
criteria for both medical/surgical benefits and MH/SUD benefits, as well as the processes,
strategies, evidentiary standards, and other factors used to apply an NQTL with respect to
medical/surgical benefits and MH/SUD benefits under the plan.
Contemporaneous with the issuance of the MHPAEA final regulations, the Departments
published FAQs about Affordable Care Act Implementation Part XVII and Mental Health Parity
Implementation 13 addressing a group health plan’s disclosure obligations under MHPAEA and
ERISA generally, as well as the specific information a participant is entitled to receive when a
claim for MH/SUD benefits has been denied. In addition to reiterating that “instruments under
which the plan is established or operated” under ERISA section 104 includes documents with
information on medical necessity criteria for both medical/surgical and MH/SUD benefits, as
well as the processes, strategies, evidentiary standards, and other factors used to apply an NQTL,
this guidance noted that other provisions of Federal law require such disclosures. The following
FAQs provide examples of how other provisions of Federal law may require disclosures relevant
to MH/SUD benefits.
Q11: My ERISA-covered group health plan utilizes a provider network and provides a
provider directory with its summary plan description (SPD). My former psychiatrist
retired three years ago and is therefore no longer participating in the network. However,
the provider directory furnished by the plan lists her as still participating in the network.
When I began making calls to find a replacement provider, it became clear that the entire
directory is out of date and inaccurate. Is this permissible?
No. Under 26 CFR 2520.102-3 of the Department of Labor’s regulations, if an ERISA-covered
plan utilizes a network, its SPD must provide a general description of the provider network. The
list of providers in that SPD must be up-to-date, accurate, and complete (using reasonable
efforts). The list may be provided as a separate document that accompanies the plan’s SPD if it
is furnished automatically and without charge and the SPD contains a statement to that effect.
Moreover, an ERISA-covered plan must disclose a summary of material modifications or
changes in the information required to be included in the summary plan description not later than

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See FAQs about Affordable Care Act Implementation (Part XVII) and Mental Health Parity
Implementation, available at http://www.dol.gov/ebsa/faqs/faq aca17.html and
https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs17.html.

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210 calendar days after the close of the plan year in which the modification or change was
adopted. See 29 CFR 2520.104b-3(a).
Qualified Health Plan (QHP) issuers are obligated to comply with 45 CFR 156.230(b)(2) that
requires the issuer to publish an up-to-date, accurate, and complete provider directory, including
information on which providers are accepting new patients, and the provider's location, contact
information, specialty, medical group, and any institutional affiliations, in a manner that is easily
accessible to plan enrollees, prospective enrollees, the State, the Health Insurance Marketplace,
HHS, and the Office of Personnel Management (OPM).
Q12: Are ERISA-covered plans and issuers that utilize provider networks permitted to
provide a hyperlink or URL address in enrollment and plan summary materials for a
provider directory where information related to MH/SUD providers can be found?
Yes. While ERISA-covered plans must provide an SPD that describes provisions governing the
use of network providers, the composition of the provider network, and whether, and under what
circumstances, coverage is provided for out-of-network services under ERISA section 102 and
the Department of Labor’s implementing regulations, such information could be provided
electronically, for instance in a hyperlink or URL address, provided the Department of Labor’s
electronic disclosure safe harbor requirements at 29 CFR 2520.104b-1(c) are met.
Furthermore, under PHS Act section 2715 and its implementing regulations, group health plans
and health insurance issuers offering group or individual health insurance coverage must provide
a Summary of Benefits and Coverage that includes an Internet address (or other contact
information) for obtaining a list of in-network network providers.
Finally, QHP issuers currently must make their provider directories available online. For plan
years beginning on or after January 1, 2016, a QHP issuer must publish an up-to-date provider
directory, including information on which providers are accepting new patients, as well as each
provider’s contact information, specialty, medical group, and any institutional affiliations, in a
manner that is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange,
HHS, and OPM.

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