The ACA essential health benefits package requirements do not apply to large, fully insured plans or self-insured employer plans.

The MHPAEA regulations do require large-group policies and self-insured employer health plans that choose to cover behavioral health care to provide parity for behavioral health benefits and other health benefits, but it has let self-insured plans opt out of compliance.

The new final rule sets guidelines for "non-quantitative treatment limitations," or provisions such as preauthorization requirements and methods for determining health care provider pay that might affect how comparable behavioral health care and other types of care really are.

Related: Biden's new rule puts insurers on notice: Boost mental-health coverage

The new final rule still does not require self-funded plans to cover behavioral care, but it implements a CAA, 2023 section that "sunsets," or eliminates, the ability of self-funded plans to opt out of the parity requirements. The ability to opt out ended Dec. 29, 2022.

The final rule was developed by the Internal Revenue Service, the U.S. Labor Department's Employee Benefits Security Administration and the U.S. Department of Health and Human Services.

Nuts and bolts

The new final rule is released on a draft that was released in July 2023 and attracted 9,503 comments.

The federal agencies that developed the rule are starting the process of having it published in the Federal Register, an official government rulemaking publication.

The regulations will take effect 60 days after the official publication date.

Many of the group health plan and group health insurance requirements will apply starting with the first day of the first plan year beginning on or after Jan. 1, 2025.

The NQTL rules

The new final rule requires health insurers and self-funded health plans that offer mental health benefits to collect data to show that the non-quantitative treatment limitations, or NQTLs, for the behavioral health benefits are comparable to the NQTLs for other benefits and that the plan or insurer has taken action to address any "material differences in access."

The final rule forbids plans and insurers from using "discriminatory information, evidence, sources or standards" that might make it harder for patients to use their behavioral health plans than to use their other health benefits.

For group health plans and group health insurance providers, the comparability analysis standards and prohibition on use of discriminatory factors and evidence will start to apply on the first day of the first plan year beginning on or after Jan. 1, 2026.

The opt-out sunset provision impact

Only about 230 self-insured health plans have opted out of complying with the parity rules, officials estimated

Existing regulations already require fully insured plans to offer comparable coverage for behavioral health care and other forms of health care.

Self-insured employer health plans that chose to cover behavioral health care could opt out of complying with the parity rules.

Employer plan provisions

The original draft would have required a "named fiduciary" to certify the employer's behavioral benefits comparability analysis.

The final requirement requires a self-insured employer health plan or group health insurance provider to have a fiduciary review the comparability analysis but does not require the fiduciary to certify it.

Officials note in a discussion of comments that some commenters wanted them to require employer health plans and insurers to put behavioral health compliance provisions in agreements with third-party administrators, the same way plans and insurers must include "business associate" provisions for health information in TPA agreements.

Requiring behavioral health parity provisions in TPA contracts "would go beyond the scope of this rulemaking," officials say. "However, these types of contract provisions are a best practice that could be helpful to many plans and issuers in complying with their obligations to perform and document comparative analysis of NQTLs applied to mental health or substance user disorder benefits and medical/surgical benefits."

The scope

Officials include employer count data in their final rule impact analysis.

They estimate, for example, that the final rule will affect 46,080 self-insured plans, including 37,220 that will simply get off-the-shelf NQTL comparability reviews from TPAs or other service providers and 709 big plans that will conduct the reviews themselves.

The impact analysis implies that the comparability analysis requirements could create a comparability review market, with plans and insurers spending about $656 million on the reviews in the first year and about $131 million per year on the reviews in later years.

The new requirements could also have significant benefits, by reducing the number of deaths caused by suicide and easing other problems caused or aggravated by behavioral health problems, officials say.

The future

Groups such as the American Benefits Council and the ERISA Industry Committee have argued that the parity requirements are unworkable, partly because of a shortage of behavioral health providers willing to accept patients' health insurance.

The U.S. Supreme Court recently issued a ruling in connection with Loper Bright Enterprises v. Raimondo that overturned a longstanding legal precedent, the Chevron doctrine. The Chevron doctrine previously gave federal agencies discretion over interpreting laws and regulations related to their work.

Many benefits law experts, such as Shawn Gremminger, the chief executive officer of the National Alliance of Healthcare Purchaser Coalitions, have predicted that employer groups will use the Loper ruling to challenge the new NQTL requirements.