Benefits Counselor ' August 2023

• Published date: 18 August 2023
• Subject Matter: Employment and HR, Food, Drugs, Healthcare, Life Sciences, Retirement, Superannuation & Pensions, Employee Benefits & Compensation, Food and Drugs Law
• Law Firm: Reinhart Boerner Van Deuren s.c.
• Author: Mr Employee Benefits Group

HEALTH AND WELFARE PLAN DEVELOPMENTS

Departments Unveil Proposed Guidance on Mental Health Parity and Substance Abuse

On July 25, 2023, the U.S. Department of Health and Human Services (HHS), U.S. Department of Labor (DOL) and the U.S. Department of the Treasury (Treasury) (collectively, the Departments) jointly issued a proposed rule (Proposed Rule) that would revise existing rules implementing the Mental Health Parity and Addiction Equity Act (MHPAEA). The Proposed Rule includes significant changes that are intended to clarify existing MHPAEA requirements and assist sponsors in complying with the nonquantitative treatment limitations (NQTL) comparative analysis requirements added by the Consolidated Appropriations Act, 2021 (CAA 2021).

Interested parties have until October 2, 2023, to submit comments on the Proposed Rule. If finalized, the Proposed Rule would apply to group health plans and issuers beginning on the first day of the first plan year beginning on or after January 1, 2025.

For additional details on the Proposed Rule, please see our recent alert titled New Mental Health Parity Guidance - Considerations Every Health Plan Sponsor Should Know. We provide a brief overview of the MHPAEA and the Proposed Rule, and conclude with several key issues plan sponsors should consider prior to the proposal's effective date in 2025.

2023 Consolidated Appropriations Act Eliminates MHPAEA Opt-Out for Non-Federal Governmental Plans

As discussed in the January 2023 Benefits Counselor, the Consolidated Appropriations Act of 2023 (CAA 2023) prohibits self-insured non-federal governmental health plans from opting out of the MHPAEA as of the statute's enactment date, December 29, 2022. For non-federal governmental health plans that have an existing election, the CAA 2023 prohibits the renewal of elections that expire on or after 180 days following the enactment date. However, non-federal governmental health plans that are subject to multiple collective bargaining agreements (CBAs) may extend their existing elections until the date their last CBA expires.

On June 7, 2023, HHS issued new guidance that explains the process by which plans subject to the multiple CBA rule can extend their opt-out elections:

1. Plan sponsors must send an email to the HIPAA opt-out email box (HIPAAOptOut@cms.hhs.gov) that includes documentation of the existing CBA(s) effective date and term. The email must also demonstrate that the CBA encompasses the self-funded, non-federal group health plan for which the extension is being sought.
2. After the U.S. Centers for Medicare & Medicaid Services (CMS) has...