Self-Compliance Tool

Self-Compliance Tool for the
Mental Health Parity and Addiction Equity Act (MHPAEA)

About This Tool .............................................................................................................................. 2
Introduction ..................................................................................................................................... 3
Definitions....................................................................................................................................... 4
SECTION A.

APPLICABILITY ............................................................................................. 6

SECTION B.

COVERAGE IN ALL CLASSIFICATIONS ................................................... 8

SECTION C.

LIFETIME AND ANNUAL LIMITS ............................................................ 13

SECTION D.

FINANCIAL REQUIREMENTS AND QUANTITATIVE TREATMENT
LIMITATIONS ............................................................................................... 14

SECTION E.

CUMULATIVE FINANCIAL REQUIREMENTS AND TREATMENT
LIMITATIONS ............................................................................................... 18

SECTION F.

NONQUANTITATIVE TREATMENT LIMITATIONS .............................. 19

SECTION G.

DISCLOSURE REQUIREMENTS ................................................................ 29

SECTION H.

ESTABLISHING AN INTERNAL MHPAEA COMPLIANCE PLAN ........ 33

APPENDIX I:

ADDITIONAL ILLUSTRATIONS................................................................ 35

APPENDIX II:

PROVIDER REIMBURSEMENT RATE WARNING SIGNS ..................... 38

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About This Tool
The goal of this self-compliance tool is to help group health plans, plan sponsors, plan
administrators, group and individual market health insurance issuers, state regulators, and other
parties determine whether a group health plan or health insurance issuer complies with the
Mental Health Parity and Addiction Equity Act (MHPAEA) and additional related requirements
under the Employee Retirement Income Security Act of 1974 (ERISA) that apply to group health
plans. The requirements described in this tool generally apply to group health plans, group
health insurance issuers, and individual market health insurance issuers. However, requirements
that do not apply as broadly are so noted.
This tool does not provide legal advice. Rather, it gives the user a basic understanding of
MHPAEA to assist in evaluating compliance with its requirements. For more information on
MHPAEA, or related guidance issued by the Departments of Labor (DOL), Health and Human
Services (HHS), and the Treasury (collectively, the Departments), please visit
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-and-substance-usedisorder-parity.
Furthermore, as directed by Section 13001(a) of the 21st Century Cures Act, this publicly
available tool is a compliance program guidance document intended to improve compliance with
MHPAEA. DOL will update the self-compliance tool biennially to provide additional guidance
on MHPAEA’s requirements, as appropriate.
MHPAEA, as a federal law, sets minimum standards for group health plans and issuers with
respect to parity requirements. However, many states have enacted their own laws to advance
parity between mental health and substance use disorder benefits and medical/surgical benefits
by supplementing the requirements of MHPAEA. Insured group health plans and issuers should
consult with their state regulators to understand the full scope of applicable parity requirements.
This tool provides a number of examples that demonstrate how the law applies in certain
situations and how a plan or issuer might or might not comply with the law. Additional
examples are included in the Appendix I. The fact patterns used as examples are intended to
help group health plans and health insurance issuers identify and address important MHPAEA
issues.
Examples of MHPAEA enforcement actions that the DOL has undertaken are included in the
MHPAEA Enforcement Fact Sheets, available at https://www.dol.gov/agencies/ebsa/laws-andregulations/laws/mental-health-and-substance-use-disorder-parity. Examples of MHPAEA
enforcement actions that HHS has taken are included in the Department of Health and Human
Services’ MHPAEA Reports at https://www.cms.gov/CCIIO/Resources/Forms-Reports-andOther-Resources#mental-health-parity.

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Introduction
MHPAEA, as amended by the Patient Protection and Affordable Care Act (the Affordable Care
Act), generally requires that group health plans and health insurance issuers offering group or
individual health insurance coverage ensure that the financial requirements and treatment
limitations on mental health or substance use disorder (MH/SUD) benefits they provide are no
more restrictive than those on medical or surgical benefits. This is commonly referred to as
providing MH/SUD benefits in parity with medical/surgical benefits.
MHPAEA generally applies to group health plans and group and individual health insurance
issuers that provide coverage for MH/SUD benefits in addition to medical/surgical benefits.
DOL has primary enforcement authority with regard to MHPAEA over private sector
employment-based group health plans, while HHS has primary enforcement authority over nonfederal governmental group health plans, such as those sponsored by state and local government
employers. HHS also has primary enforcement authority for MHPAEA over issuers selling
products in the individual and fully insured group markets in states that have notified HHS’
Centers for Medicare & Medicaid Services that they do not have the authority to enforce or are
not otherwise enforcing MHPAEA. In all other states, generally the state is responsible for
directly enforcing MHPAEA with respect to issuers.
Unless a plan is otherwise exempt, MHPAEA generally applies to both grandfathered and nongrandfathered group health plans and large group health insurance coverage. Also, the
Affordable Care Act requires all issuers offering coverage in the individual and small group
markets to cover certain essential health benefits (EHB), including MH/SUD benefits. Final
rules issued by HHS implementing EHB requirements specify that MH/SUD benefits must be
consistent with the requirements of the MHPAEA regulations. See 45 CFR 156.115(a)(3).
Under the MHPAEA regulations, if a plan or issuer provides MH/SUD benefits in any
classification described in the MHPAEA final regulation, MH/SUD benefits must be provided in
every classification in which medical/surgical benefits are provided. Under PHS Act section
2713, as added by the Affordable Care Act, non-grandfathered group health plans and group and
individual health insurance coverage are required to cover certain preventive services with no
cost-sharing, which include, among other things, alcohol misuse screening and counseling,
depression screening, and tobacco use screening. However, the MHPAEA regulations do not
require a group health plan or a health insurance issuer that provides MH/SUD benefits only to
the extent required under PHS Act section 2713, to provide additional MH/SUD benefits in any
classification. See 29 CFR 2590.712(e)(3)(ii), 45 CFR 146.136(e)(3)(ii), 26 CFR 54.98121(e)(3)(ii).

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Definitions
Aggregate lifetime dollar limit means a dollar limitation on the total amount of specified benefits
that may be paid under a group health plan or health insurance coverage for any coverage unit.
Annual dollar limit means a dollar limitation on the total amount of specified benefits that may
be paid in a 12-month period under a group health plan or health insurance coverage for any
coverage unit.
Cumulative financial requirements are financial requirements that determine whether or to what
extent benefits are provided based on certain accumulated amounts, and they include deductibles
and out-of-pocket maximums. (However, cumulative financial requirements do not include
aggregate lifetime or annual dollar limits because these two terms are excluded from the meaning
of financial requirements.)
Cumulative quantitative treatment limitations are treatment limitations that determine whether
or to what extent benefits are provided based on certain accumulated amounts, such as annual or
lifetime day or visit limits.
Financial requirements include deductibles, copayments, coinsurance, or out-of-pocket
maximums. Financial requirements do not include aggregate lifetime or annual dollar limits.
Medical/surgical benefits means 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 MH/SUD benefits. Any
condition defined by the plan or coverage as being or as not being a medical/surgical condition
must be defined to be consistent with generally recognized independent standards of current
medical practice (for example, the most current version of the International Classification of
Diseases (ICD) or state guidelines).
Mental health benefits means 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. Any condition defined by the plan or coverage as being or
as not being a mental health condition must be defined to be consistent with generally recognized
independent standards of current medical practice (for example, the most current version of the
Diagnostic and Statistical Manual of Mental Disorders (DSM), the most current version of the
ICD, or state guidelines).
NOTE: If a plan defines a condition as a mental health condition, it must treat benefits for that
condition as mental health benefits for purposes of MHPAEA. For example, if a plan defines
autism spectrum disorder (ASD) as a mental health condition, it must treat benefits for ASD as
mental health benefits. Therefore, for example, any exclusion by the plan for experimental
treatment that applies to ASD should be evaluated for compliance as a nonquantitative treatment
limitation (NQTL) (and the processes, strategies, evidentiary standards, and other factors used by
the plan to determine whether a particular treatment for ASD is experimental, as written and in
operation, must be comparable to and no more stringently applied than those used for exclusions
of experimental treatments of medical/surgical conditions in the same classification). See FAQs
About Mental Health And Substance Use Disorder Parity Implementation And the 21st Century
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Cures Act Part 39, Q1, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/ouractivities/resource-center/faqs/aca-part-39-final.pdf. Additionally, if a plan defines ASD as a
mental health condition, any aggregate annual or lifetime dollar limit or any quantitative
treatment limitation (QTL) imposed on benefits for ASD (for example, an annual dollar cap on
benefits for Applied Behavioral Analysis (ABA) therapy for ASD of $35,000, or a 50-visit
annual limit for ABA therapy for ASD) should also be evaluated for compliance with MHPAEA.
Substance use disorder benefits means benefits with respect to items or services for substance
use disorders, as defined under the terms of the plan or health insurance coverage and in
accordance with applicable federal and state law. Any disorder defined by the plan as being or
as not being a substance use disorder must be defined to be consistent with generally recognized
independent standards of current medical practice (for example, the most current version of the
DSM, the most current version of the ICD, or state guidelines).
Treatment limitations include limits on benefits based on the frequency of treatment, number of
visits, days of coverage, days in a waiting period, or other similar limits on the scope or duration
of treatment. Treatment limitations include both QTLs, which are expressed numerically (such
as 50 outpatient visits per year), and NQTLs, which otherwise limit the scope or duration of
benefits for treatment under a plan or coverage. A permanent exclusion of all benefits for a
particular condition or disorder, however, is not a treatment limitation for purposes of this
definition.

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SECTION A. APPLICABILITY
Question 1.

Is the group health plan or group or individual health insurance coverage
exempt from MHPAEA? If so, please indicate the reason (e.g. retiree-only
plan, excepted benefits, small employer exception, increased cost exception,
HIPAA opt-out).

Comments:

If a group health plan or group or individual health insurance coverage provides either MH/SUD
benefits, in addition to medical/surgical benefits, the plan may be subject to the MHPAEA parity
requirements. However, retiree-only group health plans, self-insured non-federal
governmental plans that have elected to exempt the plan from MPHAEA, and group health plans
and group or individual health insurance coverage offering only excepted benefits, are generally
not subject to the MHPAEA parity requirements. (Note: if under an arrangement(s) to provide
medical care benefits by an employer or employee organization, any participant or beneficiary
can simultaneously receive coverage for medical/surgical benefits and MH/SUD benefits, the
MHPAEA parity requirements apply separately with respect to each combination of
medical/surgical benefits and MH/SUD benefits and all such combinations are considered to be a
single group health plan. See 26 CFR 54.9812-1(e), 29 CFR 2590.712(e), 45 CFR 146.136(e)).
Under ERISA, the MHPAEA requirements do not apply to small employers, defined as
employers who employed an average of at least 2 but not more than 50 employees on business
days during the preceding calendar year and who employ at least 1 employee on the first day of
the plan year. See 26 CFR 54.9812-1(f)(1), 29 CFR 2590.712(f)(1), 45 CFR 146.136(f)(1).
However, under HHS final rules governing the Affordable Care Act requirement to provide
EHBs, non-grandfathered health insurance coverage in the individual and small group markets
must provide all categories of EHBs, including MH/SUD benefits. The final EHB rules require
that such benefits be provided in compliance with the requirements of the MHPAEA rules. 45
CFR 156.115(a)(3); see also ACA Implementation FAQs Part XVII, Q6, available at
https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/acapart-xvii.pdf. In practice, this means that employees in group health plans offered by small
employers who purchase non-grandfathered health insurance coverage in the small group market
(within the meaning of section 2791 of the PHS Act) that must provide EHBs have coverage that
is subject to the requirements of MHPAEA.
MHPAEA also contains an increased cost exemption available to group health plans and issuers
that meet the requirements for the exemption. The MHPAEA regulations establish standards and
procedures for claiming an increased cost exemption. See 26 CFR 54.9812-1(g), 29 CFR
2590.712(g), 45 CFR 146.136(g).
Sponsors of self-funded, non-federal governmental plans are permitted to elect to exempt those
plans from certain provisions of the PHS Act, including MHPAEA. An exemption election is
commonly called a “HIPAA opt-out.” The HIPAA opt-out election was authorized under section
2722(a)(2) of the PHS Act (42 USC § 300gg-21(a)(2)). See also 45 CFR 146.180. The
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procedures and requirements for self-funded, non-federal governmental plans to opt out may be
found at https://www.cms.gov/CCIIO/Resources/Forms-Reports-and-Other-Resources#SelfFunded%20Non-Federal%20Governmental%20Plans.
Question 2.

If not exempt from MHPAEA, does the group health plan or group or
individual health insurance coverage provide MH/SUD benefits in addition
to providing medical/surgical benefits?

Comments:

Unless the group health plan or group or individual health insurance coverage is exempt
from MHPAEA or does not provide MH/SUD benefits, continue to the following sections to
examine compliance with requirements under MHPAEA.

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SECTION B. COVERAGE IN ALL CLASSIFICATIONS
Question 3.

Does the group health plan or group or individual health insurance coverage
provide MH/SUD benefits in every classification in which medical/surgical
benefits are provided?

Comments:

Under the MHPAEA regulations, if a plan or issuer provides mental health or substance use
disorder benefits in any classification described in the MHPAEA final regulation, mental health
or substance use disorder benefits must be provided in every classification in which
medical/surgical benefits are provided. See 26 CFR 54.9812-1(c)(2)(ii)(A), 29 CFR
2590.712(c)(2)(ii)(A), 45 CFR 146.136(c)(2)(ii)(A).
Under the MHPAEA regulations, the six classifications* of benefits are:
inpatient, in-network;
inpatient, out-of-network;
outpatient, in-network;
outpatient, out-of-network;
emergency care; and
prescription drugs.
See 26 CFR 54.9812-1(c)(2)(ii), 29 CFR 2590.712(c)(2)(ii), 45 CFR 146.136(c)(2)(ii).
1)
2)
3)
4)
5)
6)

*See special rules related to the classifications discussed below.
NOTE: If a plan or coverage generally excludes all benefits for a particular mental
health condition or substance use disorder, but nevertheless includes prescription drugs
for treatment of that condition or disorder on its formulary, the plan or coverage covers
MH/SUD benefits in only one classification (prescription drugs). Therefore, the plan or
coverage would generally be required to provide mental health or substance use disorder
benefits with respect to that condition or disorder for each of the other five classifications
for which the plan also provides medical/surgical benefits. However, if a prescription
drug that may be used for a particular MH/SUD condition and may also be used for other
unrelated conditions is included on a plan’s or coverage’s formulary, the drug’s inclusion
on the formulary alone would not be considered to override the plan or coverage’s
general exclusion for a particular mental health condition or substance use disorder unless
the plan or coverage covers prescription drugs specifically to treat that condition.
ILLUSTRATION: A Plan provides for medically necessary medical/surgical benefits as well as
MH/SUD benefits. While the Plan covers medical/surgical benefits in all benefit classifications,
it does not cover outpatient services for MH/SUD benefits for either in-network or out-ofnetwork providers. In this example, since the Plan fails to provide MH/SUD benefits in
outpatient, in-network and outpatient, out-of-network classifications in which medical/surgical
benefits are provided, the Plan fails to meet MHPAEA’s parity requirements. The Plan could
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come into compliance by covering outpatient services for MH/SUD benefits both in- and out-ofnetwork in a manner comparable to covered medical/surgical outpatient in- and out-of-network
services.
Classifying benefits. In determining the classification in which a particular benefit belongs, a
group health plan or group or individual market health insurance issuer must apply the same
standards to medical/surgical benefits as to MH/SUD benefits. See 26 CFR 54.98121(c)(2)(ii)(A), 29 CFR 2590.712(c)(2)(ii)(A), 45 CFR 146.136(c)(2)(ii)(A). This rule also applies
to intermediate services provided under the plan or coverage. Plans and issuers must assign
covered intermediate MH/SUD benefits (such as residential treatment, partial hospitalization,
and intensive outpatient treatment) to the existing six classifications in the same way that they
assign intermediate medical/surgical benefits to these classifications. For example, if a plan
classifies care in skilled nursing facilities and rehabilitation hospitals for medical/surgical
benefits as inpatient benefits, it must classify covered care in residential treatment facilities for
MH/SUD benefits as inpatient benefits. If a plan treats home health care as an outpatient benefit,
then any covered intensive outpatient MH/SUD services and partial hospitalization must be
considered outpatient benefits as well. A plan or issuer must also comply with MHPAEA’s
NQTL rules, discussed in Section F, in assigning any benefits to a particular classification. See
26 CFR 54.9812-1(c)(4), 29 CFR 2590.712(c)(4), 45 CFR 146.136(c)(4).
Medication Assisted Treatment (MAT) is subject to MHPAEA
Plans and issuers that offer MAT benefits to treat opioid use disorder are subject to MHPAEA
requirements, including the special rule for multi-tiered prescription drug benefits that applies to
the medication component of MAT. The behavioral health services components of MAT should
be treated as outpatient benefits and/or inpatient benefits as appropriate for purposes of
MHPAEA. Plans and issuers should ensure there are NO impermissible QTLs, such as visit
limits, or impermissible NQTLs, such as limits on treatment dosage and duration. For example,
a limitation providing that coverage of medication for the treatment of opioid use disorder is
contingent upon the availability of behavioral or psychosocial therapies or services or upon the
patient’s acceptance of such services would generally not be permissible unless a comparable
process was used to determine limitations for the coverage of medications for the treatment of
medical/surgical conditions.
ILLUSTRATION: An issuer did not cover methadone for opioid addiction, though it did cover
methadone for pain management. The issuer failed to demonstrate that the processes, strategies,
evidentiary standards, and other factors used to develop the methadone treatment exclusion for
opioid addiction are comparable to and applied no more stringently than those used for
medical/surgical conditions. The issuer re-evaluated the medical necessity of methadonemaintenance treatment programs and developed medical-necessity criteria that mirrors federal
guidelines (including the Substance Abuse and Mental Health Services Administration treatment
improvement protocol 63 for medication for opioid use disorder) for opioid treatment programs
to replace the methadone-maintenance treatment exclusion.
ILLUSTRATION: A plan uses nationally recognized clinical standards to determine coverage
for prescription drugs to treat medical/surgical benefits based on the recommendations of a
Pharmacy and Therapeutics (P&T) committee. However, the plan deviates from such standards
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for buprenorphine/naloxone to treat opioid use disorder based on the P&T committee’s
recommendations. This deviation should be evaluated for compliance with MHPAEA’s NQTL
standard in practice, including the determination of (1) whether the P&T committee has
comparable expertise in MH/SUD conditions as it has in medical/surgical conditions, and (2)
whether the committee’s evaluation of the nationally-recognized clinical standards and decision
processes to deviate from those standards for MH/SUD conditions is comparable to and no more
stringent than the processes it follows for medical/surgical conditions.
Treatment for eating disorders is subject to MHPAEA
Eating disorders are mental health conditions, and treatment of an eating disorder is a “mental
health benefit” as that term is defined by MHPAEA. See ACA Implementation FAQs Part 38,
Q1, available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resourcecenter/faqs/aca-part-38.pdf. Section 13007 of the 21st Century Cures Act provides that if a plan
or an issuer provides coverage for eating disorders, including residential treatment, they must
provide these benefits in accordance with MHPAEA requirements. For example, an exclusion
under a plan of all inpatient, out-of-network treatment outside of a hospital setting for eating
disorders would generally not be permissible if the plan did not employ a comparable process to
determine if a similar limitation on treatment outside hospital settings for medical/surgical
benefits warranted. See FAQs About Mental Health And Substance Use Disorder Parity
Implementation And the 21st Century Cures Act Part 39, Q8, available at
https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/acapart-39-final.pdf.
Compliance Tips
 If the plan or issuer does not contract with a network of providers, all benefits are
out-of-network. If a plan or issuer that has no network imposes a financial
requirement or treatment limitation on inpatient or outpatient benefits, the plan or
issuer is imposing the requirement or limitation within classifications (inpatient, outof-network or outpatient, out-of-network), and the rules for parity will be applied
separately for the different classifications. See 26 CFR 54.9812-1(c)(2)(ii)(C), 29
CFR 2590.712(c)(2)(ii)(C),
Example 1.
 If a plan or issuer covers the full range of medical/surgical benefits (in all
classifications, both in-network and out-of-network), beware of exclusions on out-ofnetwork MH/SUD benefits.
 Benefits for intermediate services (such as non-hospital inpatient and partial
hospitalization) must be assigned to classifications using a comparable methodology
across medical/surgical benefits and MH/SUD benefits.

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*NOTE: Special rules related to classifications
1. Special rule for outpatient sub-classifications:
•

For purposes of determining parity for outpatient benefits (in-network and out-ofnetwork), a plan or issuer may divide its benefits furnished on an outpatient basis into
two sub-classifications: (1) office visits; and (2) all other outpatient items and
services, for purposes of applying the financial requirement and treatment limitation
rules. 26 CFR 54.9812-1(c)(3)(iii), 29 CFR 2590.712(c)(3)(iii), 45 CFR
146.136(c)(3)(iii).
•

•

After the sub-classifications are established, the plan or issuer may not impose
any financial requirement or QTL on MH/SUD benefits in any sub-classification
(i.e., office visits or non-office visits) that is more restrictive than the predominant
financial requirement or treatment limitation that applies to substantially all
medical/surgical benefits in the sub-classification using the methodology set forth
in the MHPAEA regulations. See 26 CFR 54.9812-1(c)(3)(i), 29 CFR
2590.712(c)(3)(i), 45 CFR 146.136(c)(3)(i), 45 CFR 146.136(c)(3)(iii).

Other than as explicitly permitted under the final rules, sub-classifications are not
permitted when applying the financial requirement and treatment limitation rules
under MHPAEA. Accordingly, separate sub-classifications for generalists and
specialists are not permitted.

2. Special rule for prescription drug benefits:
•

There is a special rule for multi-tiered prescription drug benefits. Multi-tiered drug
formularies involve different levels of drugs that are classified based primarily on
cost, with the lowest-tier (Tier 1) drugs having the lowest cost-sharing. If a plan or
issuer applies different levels of financial requirements to different tiers of
prescription drug benefits, the plan complies with the mental health parity provisions
if it establishes the different levels of financial requirements based on reasonable
factors determined in accordance with the rules for NQTLs and without regard to
whether a drug is generally prescribed for medical/surgical or MH/SUD benefits.
Reasonable factors include cost, efficacy, generic versus brand name, and mail order
versus pharmacy pick-up. See 26 CFR54.9812-1(c)(3)(iii), 29 CFR
2590.712(c)(3)(iii), 45 CFR 146.136(c)(3)(iii).

3. Special rule for multiple network tiers:
•

There is a special rule for multiple network tiers. If a plan or issuer provides benefits
through multiple tiers of in-network providers (such as in-network preferred and innetwork participating providers), the plan or issuer may divide its benefits furnished
on an in-network basis into sub-classifications that reflect network tiers, if the tiering
is based on reasonable factors determined in accordance with the rules for NQTLs
(such as quality, performance, and market standards) and without regard to whether a
provider provides services with respect to medical/surgical benefits or MH/SUD
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benefits. After the tiers are established, the plan or issuer may not impose any
financial requirement or treatment limitation on MH/SUD benefits in any tier that is
more restrictive than the predominant financial requirement or treatment limitation
that applies to substantially all medical/surgical benefits in the tier.
NOTE: As explained in the Introduction to this section, nothing in MHPAEA requires a nongrandfathered group health plan or health insurance coverage that provides MH/SUD benefits
only to the extent required under PHS Act section 2713 to provide additional MH/SUD benefits
in any classification.

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SECTION C.
Question 4.

LIFETIME AND ANNUAL LIMITS
Does the group health plan or group or individual market health insurance
issuer comply with the mental health parity requirements regarding lifetime
and annual dollar limits on MH/SUD benefits?

Comments:

A plan or issuer generally may not impose a lifetime dollar limit or an annual dollar limit on
MH/SUD benefits that is lower than the lifetime or annual dollar limit imposed on medical/
surgical benefits. See 26 CFR 9812-1(b), 29 CFR 2590.712(b), 45 CFR 146.136(b). (This
prohibition applies only to dollar limits on what the plan would pay, and not to dollar limits on
what an individual may be charged.) If a plan or issuer does not include an aggregate lifetime or
annual dollar limit on any medical/surgical benefits, or it includes one that applies to less than
one-third of all medical/surgical benefits, it may not impose an aggregate lifetime or annual dollar
limit on MH/SUD benefits. 26 CFR 54.9812-1(b)(2), 29 CFR 2590.712(b)(2), 45 CFR
146.136(b)(2).
ILLUSTRATION: Plan Z limits outpatient substance use disorder treatments to a maximum of
$1,000,000 per calendar year. With the exception of a $500,000 per year limit on chiropractic
services (which applies to less than one-third of all medical/surgical benefits), Plan Z does not
impose such annual dollar limits with respect to other outpatient medical/surgical benefits. In
this example, Plan Z is in violation of MHPAEA since the outpatient substance use disorder
dollar limit is not in parity with outpatient medical/surgical dollar limits.
Compliance Tip
 There is a different rule for cumulative limits other than aggregate lifetime or annual
dollar limits discussed later in this checklist at Question 6. A plan
may
impose annual out-of-pocket dollar limits on participants and beneficiaries if done in
accordance with the rule regarding cumulative limits.
NOTE: These provisions are affected by section 2711 of the PHS Act, as amended by the
Affordable Care Act. Specifically, PHS Act section 2711 generally prohibits lifetime and annual
dollar limits on EHB, which includes MH/SUD services. Accordingly, the parity requirements
regarding lifetime and annual dollar limits apply only to the provision of MH/SUD benefits that
are not EHBs.
Note also that, for plan years beginning in 2021, the annual limitation on an individual’s
maximum out-of-pocket (MOOP) costs in effect under the Affordable Care Act is $8,550 for
self-only coverage and $17,100 for coverage other than self-only coverage. The annual
limitation on out-of-pocket costs is increased annually by the premium adjustment percentage
described under Affordable Care Act section 1302(c)(4), and this updated amount is detailed
each year in regulations issues by the Department of Health and Human Services.
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SECTION D. FINANCIAL REQUIREMENTS AND QUANTITATIVE TREATMENT
LIMITATIONS
Question 5.

Does the group health plan or group or individual market health insurance
issuer comply with the mental health parity requirements regarding financial
requirements or QTLs on MH/SUD benefits?

Comments:

•

•

A plan or issuer may not impose a financial requirement or QTL applicable to MH/SUD
benefits in any classification that is more restrictive than the predominant financial
requirement or QTL of that type that is applied to substantially all medical/surgical
benefits in the same classification. See 26 CFR 54.9812-1(c)(2), 29 CFR 2590.712(c)(2),
45 CFR 146.136(c)(2).
•

Types of financial requirements include deductibles, copayments, coinsurance, and
out-of-pocket maximums. See 26 CFR 54.9812-1(c)(1)(ii), 29 CFR
2590.712(c)(1)(ii), 45 CFR 146.136(c)(1)(ii).

•

Types of QTLs include annual, episode, and lifetime day and visit limits, for example,
number of treatments, visits, or days of coverage. See 26 CFR 54.9812-1(c)(1)(ii), 29
CFR 2590.712(c)(1)(ii), 45 CFR 146.136(c)(1)(ii).

The six classifications and the sub-classifications outlined in Section B, above, are the
only classifications that may be used when determining the predominant financial
requirements or QTLs that apply to substantially all medical/surgical benefits. See 26 CFR
54.9812-1(c)(2)(ii), 29 CFR 2590.712(c)(2)(ii), 45 CFR 146.136(c)(2)(ii). A plan or issuer
may not use a separate sub-classification under these classifications for generalists and
specialists. See 26 CFR 54.9812-1(c)(3)(iii)(C), 29 CFR 2590.712(c)(3)(iii)(C), 45 CFR
146.136(c)(3)(iii)(C).
Compliance Tips
 Ensure that the plan or issuer does not impose financial requirements or QTLs that
are applicable only to MH/SUD benefits.
 Identify all benefit packages and health insurance coverage to which MHPAEA
applies.

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Detailed steps for applying this rule:
To determine compliance, each type of financial requirement or QTL within a coverage unit must
be analyzed separately within each classification. See 26 CFR 54.9812-1(c)(2)(i), 29 CFR
2590.712(c)(2)(i), 45 CFR 146.136(c)(2)(i). Coverage unit refers to the way in which a plan
groups individuals for purposes of determining benefits, or premiums or contributions, for
example, self-only, family, or employee plus spouse. See 26 CFR 54.9812-1(c)(1)(iv), 29 CFR
2590.712(c)(1)(iv), 45 CFR 146.136(c)(1)(iv). If a plan applies different levels of a financial
requirement or QTL to different coverage units in a classification of medical/surgical benefits
(for example, a $15 copayment for self-only and a $20 copayment for family coverage), the
predominant level is determined separately for each coverage unit. See 26 CFR 54.98121(c)(3)(ii), 29 CFR 2590.712(c)(3)(ii), 45 CFR 146.136(c)(3)(ii).
•

STEP ONE (“substantially all” test): First determine if a particular type of financial
requirement or QTL applies to substantially all medical/surgical benefits in the relevant
classification of benefits.
•

•

Generally, a financial requirement or QTL is considered to apply to substantially all
medical/surgical benefits if it applies to at least two-thirds of the medical/surgical
benefits in the classification. See 26 CFR 9812-1(c)(3)(i)(A), 29 CFR
2590.712(c)(3)(i)(A), 45 CFR 146.136(c)(3)(i)(A). This two-thirds calculation is
generally based on the dollar amount of plan payments expected to be paid for the plan
year within the classification. See 26 CFR 54.9812-1(c)(3)(i)(C), 29 CFR
2590.712(c)(3)(i)(C), 45 CFR 146.136(c)(3)(i)(C). Any reasonable method can be
used for this calculation. See 26 CFR 54.9812-1(c)(3)(i)(E), 29 CFR
2590.712(c)(3)(i)(E), 45 CFR 146.136(c)(3)(i)(E).

STEP TWO (“predominant” test): If the type of financial requirement or QTL applies to
at least two-thirds of medical/surgical benefits in that classification, then determine the
predominant level of that type of financial requirement or QTL that applies to the
medical/surgical benefits that are subject to that type of financial requirement or QTL in
that classification of benefits. (Note: If the type of financial requirement or QTL does not
apply to at least two-thirds of medical/surgical benefits in that classification, it cannot
apply to MH/SUD benefits in that classification.)
•

Generally, the level of a financial requirement or QTL that is considered the
predominant level of that type is the level that applies to more than one-half of the
medical/surgical benefits in that classification subject to the financial requirement or
QTL. See 26 CFR 54.9812-1(c)(3)(i)(B)(1), 29 CFR 2590.712(c)(3)(i)(B)(1), 45 CFR
146.136(c)(3)(i)(B)(1). If there is no single level that applies to more than one-half
of medical/surgical benefits in the classification subject to the financial requirement or
quantitative treatment limitation, the plan can combine levels until the combination of
levels applies to more than one-half of medical/surgical benefits subject to the
financial requirement or QTL in the classification. In that case, the least restrictive
level within the combination is considered the predominant level. See 26 CFR
54.9812-1(c)(3)(i)(B)(2), 29 CFR 2590.712(c)(3)(i)(B)(2), 45 CFR
146.136(c)(3)(i)(B)(2). For a simpler method of compliance, a plan may treat the
15 | P a g e

least restrictive level of financial requirement or treatment limitation applied to
medical/surgical benefits as predominant.
Compliance Tip: Book of Business
 When performing the “substantially all” and “predominant” tests for financial
requirements and QTLs, basing the analysis on an issuer’s entire book of business is
generally not a reasonable method if a plan or issuer has sufficient claims data
regarding a specific plan for a reasonable projection of future claims costs for the
substantially all and predominant analysis. However, there may be insufficient
reliable claims data for a group health plan, in which case the analyses will require
utilizing reasonable data from outside the group health plan. A plan or issuer must
always use appropriate and sufficient data to perform the analysis in compliance with
applicable Actuarial Standards of Practice. See ACA Implementation FAQs Part 34,
Q3, available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-34.pdf.

ILLUSTRATION: Plan Z requires copayments for out-patient, in-network MH/SUD benefits.
In order to determine if the plan meets the parity requirements, take the following steps:
1. STEP ONE: Determine if the particular type of financial requirement applies to
substantially all (that is, 2/3 of) medical /surgical benefits in the relevant
classification.
Based on its prior claims experience, Plan Z expects $1 million in medical/surgical
benefits to be paid in the outpatient, in-network classification and $700,000 of those
benefits are expected to be subject to copayments. Because the amount of
medical/surgical benefits expected to be subject to a copayment, which is $700,000, is at
least 2/3 of the $1 million total medical/surgical benefits expected to be paid, a
copayment can be applied to outpatient, in-network MH/SUD benefits.
2. STEP TWO: Determine what level of the financial requirement is predominant (that
is, the level that applies to more than half the medical/surgical benefits subject to the
financial requirement in the relevant classification).
In the outpatient, in-network classification where $1 million in medical/surgical benefits
is expected to be paid, $700,000 of those benefits are expected to be subject to
copayments. Out of the $700,000, Plan Z expects that 25 percent will be subject to a $15
copayment and 75 percent will be subject to a $30 copayment. Since 75 percent is more
than half, the $30 copayment is the predominant level.
CONCLUSION: Plan Z cannot impose a copayment on MH/SUD benefits in this
classification that is higher than $30.

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Warning Sign: If a plan or issuer applies a specialist copayment requirement for all MH/SUD
benefits within a classification but applies a specialist copayment only for certain
medical/surgical benefits within a classification, this may be indicative of noncompliance and
warrant further review. See “Compliance Tips” below for further guidance on specialist copay
requirements.
Compliance Tips
 Ensure that when conducting the predominant/substantially all tests, the dollar
amount of all plan payments for medical/surgical benefits expected to be paid in that
classification for the relevant plan year are analyzed.
 A plan may be able to impose the specialist level of a financial requirement or QTL
to MH/SUD benefits in a classification (or an office visit sub-classification) if it is the
predominant level that applies to substantially all medical/surgical benefits within the
office visit sub-classification. For example, if the specialist level of copay is the
predominant level of copay that applies to substantially all medical/surgical benefits
in the office visit, in-network sub-classification, the plan may apply the specialist
level copay to MH/SUD benefits in the office visit, in-network sub-classification. See
26 CFR 54.9812-1(c)(3), 29 CFR 2590.712(c)(3).

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SECTION E. CUMULATIVE FINANCIAL REQUIREMENTS AND TREATMENT
LIMITATIONS
Question 6.

Does the group health plan or group or individual market health insurance
issuer comply with the mental health parity requirements regarding
cumulative financial requirements or cumulative QTLs for MH/SUD
benefits?

Comments:

•

A plan or issuer may not apply any cumulative financial requirement or cumulative QTL
for MH/SUD benefits in a classification that accumulates separately from any cumulative
financial requirement or QTL established for medical/surgical benefits in the same
classification. See 26 CFR 54.9812-1(c)(3)(v), 29 CFR 2590.712(c)(3)(v), 45 CFR
146.136(c)(3)(v). For example, a plan may not impose an annual $250 deductible on
medical/surgical benefits in a classification and a separate $250 deductible on MH/SUD
benefits in the same classification.

•

Cumulative financial requirements are financial requirements that determine whether or
to what extent benefits are provided based on accumulated amounts and include
deductibles and out-of-pocket maximums (but do not include aggregate lifetime or annual
dollar limits because these two terms are excluded from the meaning of financial
requirements). See 26 CFR 54.9812-1(a), 29 CFR 2590.712(a), 45 CFR 146.136(a).

•

Cumulative QTLs are treatment limitations that determine whether or to what extent
benefits are provided based on accumulated amounts, such as annual or lifetime day or
visit limits. See 26 CFR 54.9812-1(a), 29 CFR 2590.712(a), 45 CFR 146.136(a).

ILLUSTRATION: A plan offers three benefit options, all of which provide medical/surgical as
well as MH/SUD benefits. For all three benefit options, the plan provides for in-network
treatment limitations of 30 days per year with respect to inpatient mental health services, and innetwork treatment limitations of 20 visits per year with respect to outpatient mental health
services. No such limitations are imposed on outpatient or inpatient, in-network medical/surgical
benefits in any of the three benefit options.
In this example, the plan improperly imposes cumulative treatment limitations on the number of
visits for outpatient and inpatient, in-network and out-of-network mental health benefits in all
three benefit options. The plan could come into compliance by removing the day and visit limits
for mental health services.

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SECTION F. NONQUANTITATIVE TREATMENT LIMITATIONS
Question 7.

Does the group health plan or group or individual market health insurance
issuer comply with the mental health parity requirements regarding NQTLs
on MH/SUD benefits?

Comments:

An NQTL is generally a limitation on the scope or duration of benefits for treatment. The
MHPAEA regulations prohibit a plan or an issuer from imposing NQTLs on MH/SUD benefits
in any classification unless, under the terms of the plan or coverage as written and in operation,
any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to
MH/SUD benefits in a classification are comparable to, and are applied no more stringently than,
those used in applying the limitation with respect to medical/surgical benefits in the same
classification. See 26 CFR 54.9812-1(c)(4)(i), 29 CFR 2590.712(c)(4)(i), 45 CFR
146.136(c)(4)(i).
The following is an illustrative, non-exhaustive list of NQTLs:
•
•
•
•
•
•
•
•
•
•
•
•
•

Medical management standards limiting or excluding benefits based on medical necessity
or medical appropriateness, or based on whether the treatment is experimental or
investigative;
Prior authorization or ongoing authorization requirements;
Concurrent review standards;
Formulary design for prescription drugs;
For plans with multiple network tiers (such as preferred providers and participating
providers), network tier design;
Standards for provider admission to participate in a network, including reimbursement
rates;
Plan or issuer methods for determining usual, customary, and reasonable charges;
Refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is
not effective (also known as “fail-first” policies or “ step therapy” protocols);
Exclusions of specific treatments for certain conditions;
Restrictions on applicable provider billing codes;
Standards for providing access to out-of-network providers;
Exclusions based on failure to complete a course of treatment; and
Restrictions based on geographic location, facility type, provider specialty, and other
criteria that limit the scope or duration of benefits for services provided under the plan or
coverage.

See 26 CFR 54.9812-1(c)(4)(ii), 29 CFR 2590.712(c)(4)(ii), 45 CFR 146.136(c)(4)(ii). For
additional examples of plan provisions that may operate as NQTLs see Warning Signs, available
at https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-parity/warningsigns-plan-or-policy-nqtls-that-require-additional-analysis-to-determine-mhpaea-compliance.pdf.
19 | P a g e

While NQTLs are generally defined as treatment limitations that are not expressed numerically,
the application of an NQTL in a numerical way does not modify its nonquantitative character.
For example, standards for provider admission to participate in a network are NQTLs because
such standards are treatment limitations that typically are not expressed numerically. See 29
CFR 2590.712 (c)(4)(ii), 45 CFR 146.136(c)(4)(ii). Nevertheless, these standards sometimes
rely on numerical standards, for example, numerical reimbursement rates. In this case, the
numerical expression of reimbursement rates does not modify the nonquantitative character of
the provider admission standards; accordingly, standards for provider admission, including
associated reimbursement rates to which a participating provider must agree, are to be evaluated
in accordance with the rules for NQTLs.
A group health plan or issuer may consider a wide array of factors in designing medical
management techniques for both MH/SUD benefits and medical/surgical benefits, such as cost of
treatment; high cost growth; variability in cost and quality; elasticity of demand; provider
discretion in determining diagnosis, or type or length of treatment; clinical efficacy of any
proposed treatment or service; licensing and accreditation of providers; and claim types with a
high percentage of fraud. Based on application of these or other factors in a comparable fashion,
an NQTL, such as prior authorization, may be required for some (but not all) MH/SUD benefits,
as well as for some (but not all) medical/ surgical benefits. See 26 CFR 54.9812-1(c)(4), 29 CFR
2590.712(c)(4), 45 CFR 146.136(c)(4), Example 8.
NOTE – To comply with MHPAEA, a plan or issuer must be able to demonstrate that it
follows a comparable process in determining reimbursement rates for in-network and outof-network providers for both medical/surgical and MH/SUD benefits. For example, if
reimbursement rates for medical/surgical benefits are determined by reference to the
Medicare Physician Fee Schedule, reimbursement rates for MH/SUD benefits must also
be determined comparably and applied no more stringently by reference to the Medicare
Physician Fee Schedule. Any variance in rates applied by the plan or issuer to account
for factors such as the nature of the service, provider type, market dynamics, or market
need or availability (demand) must be comparable and applied no more stringently to
MH/SUD benefits than medical/surgical benefits.
NOTE - Plans and issuers may attempt to address shortages in medical/surgical specialist
providers and ensure reasonable patient wait times for appointments by adjusting
provider admission standards, through increasing reimbursement rates, and by developing
a process for accelerating enrollment in their networks to improve network adequacy. To
comply with MHPAEA, plans and issuers must take measures that are comparable to and
no more stringent than those applied to medical/surgical providers to help ensure an
adequate network of MH/SUD providers, even if ultimately there are disparate numbers
of MH/SUD and medical/surgical providers in the plan’s network. The Departments note
that substantially disparate results—for example, a network that includes far fewer
MH/SUD providers than medical/surgical providers—are a red flag that a plan or issuer
may be imposing an impermissible NQTL. See FAQs Part 39, Q6 and Q7, available at
https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resourcecenter/faqs/aca-part-39-final.pdf.

20 | P a g e

Warning Signs: The following plan provisions related to provider reimbursements may be
indicative of noncompliance and warrant further review:
1. Inequitable reimbursement rates established via a comparison to Medicare: A plan or
issuer generally pays at or near Medicare reimbursement rates for MH/SUD benefits,
while paying much more than Medicare reimbursement rates for medical/surgical
benefits. For assistance comparing a plan or coverage’s reimbursement schedule to
Medicare, see the PROVIDER REIMBURSEMENT RATE WARNING SIGNS in
Appendix II.
2. Lesser reimbursement for MH/SUD physicians for the same evaluation and management
(E&M) codes: A plan or issuer reimburses psychiatrists, on average, less than
medical/surgical physicians for the same E&M codes.
3. Consideration of different sets of factors to establish reimbursement rates: A plan or
issuer generally considers market dynamics, supply and demand, and geographic location
to set reimbursement rates for medical/surgical benefits, but considers only quality
measures and treatment outcomes in setting reimbursement rates for MH/SUD benefits.
In order to determine compliance with MHPAEA, the following analysis should be applied
to each NQTL identified under the plan or coverage:
Step One:
•

Identify the NQTL.
Comments:

Identify in the plan documents all the services (both MH/SUD and medical/surgical) to
which the NQTL applies in each classification.
NOTE: NQTLs may also be included in other documents, such as internal guidelines or
provider contracts.

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Compliance Tips
 Ask for information about what medical/surgical benefits are also subject to these
requirements or restrictions.
 If a benefit includes multiple components (e.g., outpatient and prescription drug
classifications), and each component is subject to a different type of NQTL (e.g., prior
authorization and limits on treatment dosage or duration), each NQTL must be analyzed
separately.
 Find out how these requirements are implemented, who makes the decisions, and what the
decision-maker’s qualifications are.

Determine which benefits are treated as medical/surgical and which are treated as MH/SUD, and
analyze the NQTLs under each benefit classification. Plans and issuers should clearly define
which benefits are treated as medical/surgical and which benefits are treated as MH/SUD under
the plan. Benefits (such as inpatient treatment at a skilled nursing facility or other non-hospital
facility and partial hospitalization) must be assigned to classifications using a comparable
methodology across medical/surgical benefits and MH/SUD benefits.
Compliance Tip
 Any separate NQTL that applies to only the MH/SUD benefits within any particular
classification does not comply with MHPAEA.

NOTE: If a plan classifies covered intermediate levels of care, such as skilled nursing
care and residential treatment, as inpatient benefits, and covers room and board for all
inpatient medical/surgical care, including skilled nursing facilities and other intermediate
levels of care, but imposes a restriction on room and board for MH/SUD residential care,
the plan imposes an impermissible restriction only on MH/SUD benefits and therefore
violates MHPAEA. 1 The plan could come into compliance by covering room and board
for intermediate levels of care for MH/SUD benefits comparably with medical/surgical
inpatient treatment.
0F

1

See 29 CFR 2590.712(c)(iii) Ex. 9.

22 | P a g e

Step Two:
•

Identify the factors considered in the design of the NQTL.
Comments:

Examples of factors include but are not limited to the following:
o
o
o
o
o
o
o
o
o

Excessive utilization;
Recent medical cost escalation;
Provider discretion in determining diagnosis;
Lack of clinical efficiency of treatment or service;
High variability in cost per episode of care;
High levels of variation in length of stay;
Lack of adherence to quality standards;
Claim types with high percentage of fraud; and
Current and projected demand for services.
Compliance Tips

 If only certain benefits are subject to an NQTL, such as meeting a fail-first protocol or
requiring preauthorization, plans and issuers should have information available to
substantiate how the applicable factors were used to apply the specific NQTL to
medical/surgical and MH/SUD benefits.
 Determine whether any factors were given more weight than others and the reason(s) for
doing so, including evaluating the specific data used in the determination (if any).

23 | P a g e

Step Three:
•

Identify the sources (including any processes, strategies, or evidentiary standards) used to
define the factors identified above to design the NQTL.
Comments:

Examples of sources of factors include, but are not limited to, the following:
o
o
o
o
o
o
o

Internal claims analysis;
Medical expert reviews;
State and federal requirements;
National accreditation standards;
Internal market and competitive analysis;
Medicare physician fee schedules; and
Evidentiary standards, including any published standards as well as internal plan
or issuer standards, relied upon to define the factors triggering the application of
an NQTL to benefits.

If these factors are utilized, they must be applied comparably to MH/SUD and
medical/surgical benefits.
NOTE: Plans and issuers have flexibility in determining the sources of factors to
apply to NQTLs (including whether or not to employ a particular source or
evidentiary standard), as long as they are applied comparably and no more stringently
to MH/SUD benefits than to medical/surgical benefits. For example, a plan utilizes a
panel of medical experts, with equivalent expertise in both medical/surgical and
MH/SUD benefits, to assess whether preauthorization (an NQTL) is appropriate to
apply to certain services, based on the factors of cost and safety. The panel
recommends that the plan require preauthorization for electroconvulsive therapy
(ECT), because ECT is high cost and its use presents legitimate safety concerns. The
plan does not require documentation or studies to support these concerns and instead
relies on established medical best practices. As long as the plan similarly relies on
established medical best practices to define high cost, identify legitimate safety
concerns, and impose preauthorization requirements on medical/surgical benefits in
the same classification, then the NQTL is applied comparably and no more
stringently to MH/SUD benefits than to medical/surgical benefits.

24 | P a g e

Compliance Tips
 Evidentiary standards and processes that a plan or issuer relies upon may include any
evidence that a plan or issuer considers in developing its medical management
techniques, including recognized medical literature and professional standards and
protocols (including comparative effectiveness studies and clinical trials), and
published research studies.
 If there is any variation in the application of a guideline or standard being relied upon
by the plan or issuer, the plan or issuer should explain the process and factors relied
upon for establishing that variation.
 If the plan or issuer relies on any experts, the plan or issuer should assess the experts’
qualifications and the extent to which the expert evaluations in setting
recommendations are ultimately relied upon regarding both MH/SUD and
medical/surgical benefits.

NOTE: When identifying the sources of the factors considered in designing the NQTL,
also identify any threshold at which each factor will implicate the NQTL. For example,
if high cost is identified as a factor used in designing a prior authorization requirement,
the threshold dollar amount at which prior authorization will be required for any service
should also be identified. You may also wish to consider the following:
•
•

What data, if any, are used to determine if the benefit is “high cost”?
How, if at all, is the amount that is to be considered “high cost” or the calculation
for determining that amount different for MH/SUD benefits as compared to
medical/surgical benefits, and how is the difference justified?

Examples of how factors identified based on evidentiary standards may be defined to set
applicable thresholds for NQTLs include, but are not limited to, the following:
o Excessive utilization as a factor to design the NQTL when utilization is two
standard deviations above average utilization per episode of care.
o Recent medical cost escalation may be considered as a factor based on internal
claims data showing that medical cost for certain services increased 10 percent or
more per year for two years.
o Lack of adherence to quality standards may be considered as a factor when
deviation from generally accepted national quality standards for a specific disease
category occurs more than 30 percent of the time based on clinical chart reviews.
o High level of variation in length of stay may be considered as a factor when
claims data shows that 25 percent of patients stayed longer than the median length
of stay for acute hospital episodes of care.
o High variability in cost per episode may be considered as a factor when episodes
of outpatient care are two standard deviations higher in total cost than the average
cost per episode 20 percent of the time in a 12-month period.
o Lack of clinical efficacy may be considered as a factor when more than 50 percent
25 | P a g e

of outpatient episodes of care for specific diseases are not based on evidencebased interventions (as defined by nationally accepted best practices) in a 12month sample of claims data.
Step Four:
•

Are the processes, strategies, and evidentiary standards used in applying the NQTL
comparable and no more stringently applied to MH/SUD and medical/surgical benefits,
both as written and in operation?
Comments:

Plans and issuers should demonstrate any methods, analyses, or other evidence used to
determine that any factor used, evidentiary standard relied upon, and process employed in
developing and applying the NQTL are comparable and applied no more stringently to
MH/SUD services and medical/surgical services.
Compliance Tips
 If utilization review is conducted by different entities or individuals for
medical/surgical and MH/SUD benefits provided under the plan or coverage, ensure
that there are measures in place to ensure comparable application of utilization review
policies.
 Determine what consequences or penalties apply to the benefits when the NQTL
requirement is not met.
These are examples of methods/analyses substantiating that factors, evidentiary
standards, and processes are comparable:
o Internal claims database analysis demonstrates that the applicable factors (such as
excessive utilization or recent increased costs) were implicated for all MH/SUD
and medical/surgical benefits subject to the NQTL.
o Review of published literature on rapidly increasing cost for services for
MH/SUD and medical/surgical conditions and a determination that a key factor(s)
was present with similar frequency with respect to specific MH/SUD and
medical/surgical benefits subject to the NQTL.
o A consistent methodology for analyzing which MH/SUD and medical/surgical
benefits had “high cost variability” and were therefore subject to the NQTL.
o Analysis that the methodology for setting usual and customary provider rates for
both MH/SUD and medical/surgical benefits were the same, both as developed
and applied.
o Internal Quality Control Reports showing that the factors, evidentiary standards,
and processes regarding MH/SUD and medical/surgical benefits are comparable
and no more stringently applied to MH/SUD benefits.
26 | P a g e

o Summaries of research or peer-reviewed medical journal articles, if considered in
designing NQTLs for both MH/SUD and medical/surgical benefits, demonstrating
that the research was utilized similarly for both MH/SUD and medical/surgical
benefits.
Compliance Tips
 Look for compliance as written AND IN OPERATION.
 Determine whether there are exception processes available and when they may be
applied.
 Determine how much discretion is allowed in applying the NQTL and whether such
discretion is afforded comparably for processing MH/SUD benefit claims and
medical/surgical benefits claims.
 Determine who makes denial determinations and if the decision-makers have
comparable expertise with respect to MH/SUD and medical/surgical benefits.
 Check sample claims to determine whether a particular NQTL warrants additional
review. A plan may have written processes that are compliant on their face, but those
processes may not be compliant in practice.
 Determine average denial rates and appeal overturn rates for concurrent review and
assess the parity between these rates for MH/SUD benefits and medical/surgical
benefits.
 Document your analysis, as a best practice.

NOTE: While outcomes are NOT determinative of compliance, rates of denials may be
reviewed as a warning sign, or indicator of a potential operational MHPAEA parity
noncompliance. For example, if a plan has a 34 percent denial rate on concurrent reviews
of psychiatric hospital stays in a 12-month period and a 5 percent denial rate on
concurrent review for medical hospital stays in that same 12-month period, the
concurrent review process for both psychiatric and medical hospital stays should be
carefully examined to ensure that the concurrent review standard is not being applied
more stringently to MH/SUD benefits than to medical/surgical benefits in operation.
Warning Signs: The following plan provisions related to NQTLs may be indicative of
noncompliance and warrant further review:
1. Prior authorization for medication for opioid use disorder: A plan or issuer
imposes prior authorization for medications for opioid use disorder but does not
require prior authorization for comparable medications for medical/surgical
conditions.
2. Different medical necessity review requirements: A plan or issuer imposes
medical necessity review requirements on outpatient MH/SUD benefits after a
certain number of visits, despite permitting a greater number of visits before
requiring any such review for outpatient medical/surgical benefits.
27 | P a g e

Compliance Tip
 Do not focus solely on results. Look at the underlying processes and strategies
used in applying NQTLs. Are there arbitrary or discriminatory differences in how the
plan or issuer is applying those processes and strategies to medical/surgical benefits
versus MH/SUD benefits? While results alone are not determinative of
noncompliance, measuring and evaluating results and quantitative outcomes can be
helpful to identify potential areas of noncompliance.

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SECTION G. DISCLOSURE REQUIREMENTS
Question 8.

Does the group health plan or group or individual health insurance issuer
comply with the MHPAEA disclosure requirements?

Comments:

•

The plan administrator or health insurance issuer must make available the criteria
for medical necessity determinations made under a group health plan or group or
individual health insurance coverage with respect to MH/SUD benefits to any
current or potential participant, beneficiary, enrollee, or contracting provider upon
request. See 29 CFR 2590.712(d)(1), 45 CFR 146.136 (d)(1).
The plan administrator (or health insurance issuer) must make available the reason
for any denial under a group health plan or group or individual health insurance
coverage of reimbursement or payment for services with respect to MH/SUD benefits
to any participant, beneficiary, or enrollee, and may do so in a form and manner
consistent with the rules in 29 CFR 2560.503-1 (the DOL claims procedure rule)
and 29 CFR 2590.715-2719 (internal claims and appeals and external review
processes).
•

Pursuant to the internal claims and appeals and external review rules under the
Affordable Care Act applicable to all non-grandfathered group health plans and
to all non-grandfathered group and individual health insurance coverage, claims
related to medical judgment (including MH/SUD) are eligible for external
review. The internal claims and appeals rules include the right of claimants
(or their authorized representatives) 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 about 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. See 26 CFR
54.9812-1(d)(3), 29 CFR 2560.5301- 2590.712(d)(3), 45 CFR 146.136(d)(3),
147.136(b).

•

With respect to group health plans that are subject to ERISA, if coverage is denied
based on medical necessity, medical necessity criteria for the MH/SUD benefits at
issue and for medical/surgical benefits in the same classification must be provided
within 30 days of the request to the participant, beneficiary, provider, or
authorized representative of the beneficiary or participant. See 29 CFR
2520.104b-1; 29 CFR 2590.712(d)(1).

•

If a plan or a plan administrator or health insurance issuer fails to provide these
documents, a court may hold it liable for up to $110 a day from the date of failure
to provide these documents. See ERISA Sec. 502(c)(1).
29 | P a g e

Compliance Tips
 The reasons for benefit denials include applicable medical necessity criteria as applied
to that participant, beneficiary, or enrollee.
 Under ERISA, plans and issuers cannot refuse to disclose information necessary for the
parity analysis on the basis that the information is proprietary or has commercial value.
 Under ERISA, plans and issuers can provide summary descriptions of the medical
necessity criteria in a layperson’s terms.

Make Showing Compliance Simple
Documents or Plan Instruments Participants and Beneficiaries or DOL may Request
Include the following:
Under ERISA section 104(b), participants and beneficiaries may request documents and plan
instruments regarding whether the plan is providing benefits in accordance with MHPAEA,
and copies must be furnished within 30 days of the request. These documents and plan
instruments may include documentation that illustrates how the health plan has determined
that any financial requirement, QTL, or NQTL complies with MHPAEA. For example,
participants and beneficiaries may request the following:
•

•

•

•
•

An analysis showing that the plan meets the predominant/substantially all tests. The plan
may need to provide information regarding the amount of medical/surgical claims subject
to a certain type of financial requirement, such as a co-payment, in the prior year for a
classification or the plan’s basis for calculating claims expected to be subject to a certain
type of QTL in the current plan year for a classification, for purposes of determining the
plan’s compliance with the predominant/substantially all tests;
A description of an applicable requirement or limitation, such as preauthorization or
concurrent review, that the plan applies for MH/SUD benefits and medical/surgical benefits
within the relevant classification (for example, in- or out-of-network, or in- or
outpatient). These might include references to specific plan documents: for example
provisions as stated on specified pages of the summary plan description (SPD), or other
underlying guidelines or criteria not included in the SPD that the plan has consulted or
relied upon;
Information regarding factors, such as cost or recommended standards of care, that are
relied upon by a plan for determining which medical/surgical or MH/SUD benefits are
subject to a specific requirement or limitation. These might include references to specific
related factors or guidelines, such as applicable utilization review criteria;
A description of the applicable requirement or limitation that the plan believes has been
used in any given MH/SUD service adverse benefit determination (ABD) within the
relevant classification; and
Medical necessity guidelines relied upon for in- and out-of-network medical/surgical
and MH/SUD benefits.

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Compliance Tips
 Find out how the plan administrator handles general information requests about
coverage limitations as well as specific information or disclosure requests with
respect to denied benefit claims.
 Review a sample of appeals files and examine what was disclosed to participants,
including the criteria for medical necessity determinations and reasons for claim
denials.
 Determine how long it took the plan or the plan administrator to furnish requested
documents to participants.

As directed by the 21st Century Cures Act, and in response to comments received from
the regulated community, the Departments continue to issue additional guidance
regarding disclosures, in particular with respect to NQTLs. Based on requests from
various stakeholders for model MHPAEA disclosure forms and for guidance on
processes for requesting disclosures in a more uniform, streamlined, or otherwise
simplified way, the Departments issued a model disclosure request form (available at
https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-healthparity/mhpaea-disclosure-template.pdf). For the most current version of the form please
visit the DOL’s dedicated MH/SUD parity webpage, available at
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-andsubstance-use-disorder-parity.
This form can, but is not required to, be used to request MHPAEA-related information
from group plans and group and individual health insurance issuers, including general
information about coverage limitations or specific information that may have resulted in
denial of MH/SUD benefit claims.
Compliance Tips
 Participants, beneficiaries, enrollees, dependents, and contracting providers may
request information to determine whether benefits under a plan are being provided in
parity even in the absence of any specific ABD.
 Group health plans may need to work with insurance issuers providing coverage on
behalf of an insured group health plan or with third party administrators administering
the plan to ensure that such service providers either directly or in coordination with the
plan are providing participants and beneficiaries any documents or information to
which they are entitled.
 If a group health plan or group or individual health insurance issuer uses MH/SUD
vendors and carve-out service providers, the plan must ensure that all combinations of
benefits comport with MHPAEA. Therefore, vendors and carve-out providers should
provide documentation of the necessary information to the plan to ensure that all
combinations of benefits comport with parity.

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NOTE: Compliance with the disclosure requirements of MHPAEA is not determinative of
compliance with any other provision of other applicable federal or state law. Be sure that the
plan or issuer, in addition to these disclosure requirements, is disclosing all information relevant
to medical/surgical, mental health, and substance use disorder benefits as required pursuant to
other applicable provisions of law. For example, if a plan document states it covers benefits
consistent with generally accepted standards of care (for both medical/surgical and MH/SUD
benefits), and the plan has developed internal guidelines that are more restrictive than the
generally accepted standards of care for both medical/surgical and MH/SUD benefits, the plan
might comply with MHPAEA but fail to comply with Part 4 of ERISA, which requires that the
plan be administered in accordance with its plan documents. Plans should be prepared to disclose
their medical necessity criteria and should ensure that, to the extent the plan document specifies a
specific treatment guideline, it follows that as well.
Compliance Tip
 Under ERISA, ERISA-covered plans must provide an SPD that describes plan
provisions related to the use of network providers and describe the composition of the
provider network (i.e., a provider directory). The provider directory may be
distributed as a separate document from the SPD and, in many circumstances, may be
provided electronically. However, the provider directory must be up-to-date, accurate,
and complete (using reasonable efforts). See e.g., 29 CFR 2520.102-3; FAQs About
Mental Health And Substance Use Disorder Parity Implementation And the 21st
Century Cures Act Part 39, Q10, available at
https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resourcecenter/faqs/aca-part-39-final.pdf; ERISA Secs. 102, 104, and 404(a).

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SECTION H. ESTABLISHING AN INTERNAL MHPAEA COMPLIANCE PLAN
Although not required by MHPAEA, an internal compliance plan that promotes the prevention,
detection, and resolution of potential MHPAEA violations can help plans and issuers improve
compliance with the law. Compliance plans for group health plans or issuers may differ, but
many successful compliance plans share the following characteristics:
1. Conducting effective training and education. Successful compliance programs provide
ongoing training and education to all individuals responsible for ensuring MHPAEA
compliance, including those who are responsible for making decisions related to
medical/surgical and MH/SUD benefits on behalf of the plan or issuer (such as claims
reviewers). EBSA provides many educational materials, webcasts, and in-person
compliance assistance events that may assist in these trainings and can also be made
available to participants and beneficiaries to inform them of their parity protections under
MHPAEA. 2
1F

2. Ensuring retention of records and information. ERISA Section 107 requires the
retention of certain documents. These documents should be retained for at least six years
after the Form 5500 for the relevant plan year has been filed.
3. Conducting internal monitoring and compliance reviews on a regular basis. A plan
or issuer may monitor compliance on an ongoing basis by conducting internal reviews for
potential non-compliance and identification of problem areas related to MHPAEA and by
auditing samples of adverse benefit determinations to assess the application of medical
necessity criteria, the level of detail provided to claimants, and the correctness of
determinations. Plans and issuers may wish to establish an internal consumer
ombudsmen program to assist participants and beneficiaries in navigating their benefits
and for elevating complaints of noncompliance. Plans and issuers that delegate
management of MH/SUD benefits to another entity should have clear protocols to ensure
that the service providers for both medical/surgical and MH/SUD benefits provide
documentation of the necessary information to the plan or issuer (and to the entity that
adjudicates MH/SUD benefit claims, if necessary) to ensure that all combinations of
benefits that a participant or beneficiary can elect comport with MHPAEA and to ensure
that plans and issuers are able to comply with disclosure requirements.
4. Responding promptly to detected offenses and developing corrective action. If a
plan or issuer discovers a violation of MHPAEA, it should take steps to correct the
violation promptly, including providing retroactive relief and notice to potentially
affected participants and beneficiaries. EBSA Benefits Advisors may be able to assist
plans and issuers in voluntarily complying with MHPAEA. They can be contacted at
(866) 444-3272.

2

See https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-and-substance-use-disorderparity.

33 | P a g e

If a group health plan is audited by DOL investigators for MHPAEA compliance, DOL
may ask for at least the following, among other items:
1. Plan materials related to the plan’s compliance with MHPAEA, including the following:
a) Information regarding NQTLs that apply to MH/SUD and/or medical/surgical
benefits offered under the plan or coverage.
b) Records documenting NQTL processes and how the NQTLs are being applied to both
medical/surgical and MH/SUD benefits to ensure the plan or issuer can demonstrate
compliance with the law, including any materials that may have been prepared for
compliance with any applicable reporting requirements under state law. Such records
may also be helpful to plans and issuers in responding to inquiries from participants,
beneficiaries, enrollees, and dependents regarding benefits under the plan or
coverage.
c) Any documentation, including any guidelines, claims processing policies and
procedures, or other standards that the plan or issuer has relied upon as the basis for
determining its compliance with the requirement that any NQTL applicable to
MH/SUD benefits be comparable to and applied no more stringently than the NQTL
as applied to medical/surgical benefits. Plans and issuers should include any
available details as to how the standards were applied, and any internal testing,
review, or analysis done by the plan or issuer to support the rationale that the NQTL
is being applied comparably and no more stringently to MH/SUD benefits than
medical/surgical benefits. If the standards that are applied to MH/SUD benefits are
more stringent than those in nationally recognized medical guidelines, but the
standards that are applied to medical/surgical benefits are not, plans and issuers
should include any applicable explanation of the reason(s) for the application of the
more stringent standard for MH/SUD benefits.
d) Samples of covered and denied MH/SUD and medical/surgical benefit claims.
e) Documents related to MHPAEA compliance with respect to service providers (if a
plan delegates management of MH/SUD benefits to another entity).
f) Any applicable MHPAEA testing completed by the plan or the issuer for financial
requirements or QTLs applied to MH/SUD benefits.
In addition to this Self-Compliance Tool, the National Association of Insurance Commissioners
(NAIC) has developed tools (such as a Data Collection Tool, which includes a Non-Quantitative
Treatment Limitations Chart) to assist issuers in evaluating MHPAEA compliance. For more
information regarding NAIC compliance assistance efforts, please visit its website at
https://content.naic.org/.

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APPENDIX I: ADDITIONAL ILLUSTRATIONS
ILLUSTRATION 1: A Plan covers neuropsychological testing but excludes such testing for
certain conditions. In such situations, look to see whether the exclusion is based on evidence
addressing, for example, clinical efficacy of such testing for different conditions and the degree
to which such testing is used for educational purposes with regard to different conditions. Does
the plan rely on criteria and evidence from comparable sources with respect to medical/surgical
and mental health conditions? Does the plan have documentation indicating the criteria used and
evidence supporting the plan’s determination of the diagnoses for which the plan will cover this
service and the rationale for excluding certain diagnoses? The result may be that the plan
permissibly covers neuropsychological testing for some medical/surgical or mental health
conditions, but not for all.
Conclusion: This outcome may be permissible to the extent the plan has based the exclusion of
this testing for certain conditions on clinical efficacy and/or other factors if the factors are
designed and applied in a comparable manner with respect to the conditions for which testing is
covered and those for which it is excluded.
ILLUSTRATION 2: A Plan uses diagnosis related group (DRG) codes in their standard
utilization review process to actively manage hospitalization utilization. For all non-DRG
hospitalizations (whether due to an underlying medical/surgical condition or a MH/SUD
condition), the plan requires precertification for hospital admission and incremental concurrent
review. The precertification and concurrent review processes review unique clinical
presentation, condition severity, expected course of recovery, quality, and efficiency. The
evidentiary standards and other factors used in the development of the concurrent review process
are comparable across medical/surgical benefits and MH/SUD benefits, and are well documented.
These evidentiary standards and other factors are available to participants and beneficiaries free
of charge upon request.
Conclusion: In this example, it appears that, under the terms of the plan as written and in
practice, the processes, strategies, evidentiary standards, and other factors considered by the plan
in implementing its precertification and concurrent review of hospitalizations are comparable and
applied no more stringently with respect to MH/SUD benefits than those applied with respect to
medical/surgical benefits.
ILLUSTRATION 3: A Plan classifies care in skilled nursing facilities and rehabilitation
hospitals for medical/surgical conditions as inpatient benefits and likewise treats any covered
care in residential treatment facilities for MH/SUD as an inpatient benefit. In addition, the plan
treats home health care as an outpatient benefit and treats intensive outpatient and partial
hospitalization for MH/SUD services as outpatient benefits.
Conclusion: In this example, the plan assigns covered intermediate MH/SUD benefits to the six
classifications in the same way that it assigns comparable intermediate medical/surgical benefits
to the classifications.
ILLUSTRATION 4: Master’s degree training and state licensing requirements often vary among
provider types. The plan consistently applies its standard that any provider must meet the most
35 | P a g e

stringent licensing requirement standard in the applicable state related to supervised clinical
experience requirements in order to participate in the network. Therefore, the plan requires
master’s-level therapists to have post-degree, supervised clinical experience in order to join its
provider network. There is no parallel requirement for master’s-level general medical providers
because their licensing requires supervised clinical experience. In addition, the plan does not
require post-degree, supervised clinical experience for psychiatrists or PhD level psychologists
since their licensing already requires supervised training.
Conclusion: The requirement that master’s-level therapists must have supervised clinical
experience to join the network is permissible, as the plan consistently applies the same standard
to all providers even though it may have a disparate impact on certain mental health providers
whose state licensing does not require this experience.
ILLUSTRATION 5: A patient with chronic depression has not responded to five different antidepressant medications and therefore was referred for outpatient treatment with repetitive
transcranial magnetic stimulation (TMS). This specific treatment has been approved by the FDA
and has been the subject of more than six randomized controlled trials published in peer
reviewed journals. The plan denies the treatment as experimental. The plan states that it used
the same criteria to deny TMS as it does to approve or deny any MH/SUD or medical/surgical
benefits under the plan. The plan identifies its standard for both medical/surgical benefits and
MH/SUD benefits as requiring that at least two randomized controlled trials showing efficacy of
a treatment be published in peer reviewed journals for any new treatment. However, the plan
indicates that while more than two randomized controlled trials regarding TMS have been
published in peer reviewed journals, a committee of medical experts involved in plan utilization
management reviews reviewed the journals and determined that only one of the articles provided
sufficient evidence of efficacy. The plan did not identify what specific standards were used to
assess whether a peer review had adequately evidenced efficacy and what the qualifications of
the plan’s experts are. Lastly, the plan does not impose this additional level of scrutiny with
respect to reviewing medical/surgical treatments beyond the initial requirement that the treatment
has been the subject of the requisite number and type of trials.
Conclusion: The plan’s exclusion fails to comply with MHPAEA’s NQTL requirements
because, in practice, the plan applies an additional level of scrutiny with respect to MH/SUD
benefits and therefore applies the NQTL more stringently to mental health benefits than to
medical/surgical benefits without additional justification. To come into compliance, the plan
could ensure that that any additional levels of scrutiny are imposed on both medical/surgical and
MH/SUD benefits comparably, including by establishing standards for when a peer review has
adequately evidenced efficacy, and that the qualifications of the plan’s experts are similar for
both MH/SUD and medical/surgical benefits.
ILLUSTRATION 6: A plan imposes prior authorization for certain MH/SUD and
medical/surgical services. The medical/surgical outpatient services that require prior
authorization include habilitative and rehabilitative services such as physical therapy. Physical
therapy services were selected for prior authorization because of findings that physical
therapists’ documentation of medical necessity is often inadequate. In addition, there has been
an increase in litigation regarding physical therapy claims. Prior authorization is conducted
telephonically and authorization determinations are reviewed by a physician in consultation with
36 | P a g e

a licensed physical therapist for medical necessity. Authorization determinations are provided
verbally and in writing consistent with federal and state timeliness requirements. The number of
sessions authorized is tailored to the specific medical/surgical condition treated, consistent with
generally accepted national clinical guidelines. Determinations to approve or deny coverage are
made by physicians with consultation from a licensed physical therapist.
Psychological testing also requires prior authorization. Psychological testing was selected for
prior authorization because of recent Medicare fraud schemes and consistent with the Medicare
Improper Payment Reports, which found improper payments with respect to psychological
testing claims because of inadequate documentation from psychologists. Prior authorization is
conducted telephonically and reviewed by a licensed psychologist for medical necessity.
Authorization determinations are provided verbally and in writing consistent with federal and
state timeliness requirements. The number of hours authorized for psychological testing are
tailored to the age of the client and type of evaluation requested and range from two to five hours
for an average evaluation (on the basis of the average number of hours for evaluation as included
in generally accepted national clinical guidelines). Determinations to approve or deny coverage
are made by licensed psychologists with at least five years of experience in psychological
testing.
Conclusion: In this example, under the terms of the plan as written and in practice, the processes,
strategies, evidentiary standards, and other factors considered by the plan in implementing its
preauthorization requirements, particularly the use of prior authorization to detect fraud and
abuse, are comparable and applied no more stringently with respect to MH/SUD benefits than
those applied with respect to medical/surgical benefits.

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APPENDIX II:
PROVIDER REIMBURSEMENT RATE WARNING SIGNS
The Departments have noted that, while outcomes are not determinative of a MHPAEA
violation, they can often serve as red flags or warning signs to alert the plan or issuer that a
particular provision may warrant further review. With respect to provider reimbursement,
comparing a plan or issuer’s average reimbursement rates for both medical/surgical and
MH/SUD providers against an external benchmark of reimbursement rates, such as Medicare,
may help identify whether the underlying methodology used to determine the plan’s or issuer’s
reimbursement rates warrants additional review for compliance with MHPAEA. Furthermore,
evaluating how medical/surgical and MH/SUD providers are reimbursed for the same or similar
services may also help a plan or issuer determine if the plan’s or issuer’s underlying
methodology for provider reimbursement warrants further review.
Accordingly, the following framework for comparison may assist plans and issuers in identifying
information they might consider when comparing reimbursement rates for certain MH/SUD and
medical/surgical services based on Current Procedural Terminology (CPT) codes. This is not the
only framework for analyzing provider reimbursement rates, and it is not determinative of
compliance. This framework utilizes Medicare reimbursement rates as its benchmark for
comparison. If a plan’s or issuer’s comparison of reimbursement rates indicates that the
reimbursement rate is lower for MH/SUD providers, either as compared to medical/surgical
providers or as compared to an external benchmark, such as Medicare, the plan or issuer should
consider further review to ensure that the processes, strategies, evidentiary standards, and other
factors used with respect to provider reimbursement for MH/SUD benefits are comparable to,
and applied no more stringently than, those used with respect to provider reimbursement for
medical/surgical benefits. Please see Section F. Nonquantitative Treatment Limitations for
information on how to further evaluate provider reimbursement rates for compliance with
MHPAEA.
Specialty

CPT Code

Average Plan
rate for [insert
locality]

Medicare
rate for
[insert
locality]

Plan rate as a
percentage of
Medicare

Orthopedic Surgery

99203
99213

$ xx.xx
$

$ xx.xx
$

xx.x%

Cardiologists

99203
99213

$
$

$
$

Internists MD

99203
99213

$
$

$
$

Endocrinologists

99203
99213

$
$

$
$

Gastroenterologist

99203
99213

$
$

$
$

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Specialty

CPT Code

Average Plan
rate for [insert
locality]

Medicare
rate for
[insert
locality]

Neurologists

99203
99213

$
$

$
$

Pediatrician

99203
99213

$
$

$
$

Dermatologists

99203
99213

$
$

$
$

Psychiatrists

99203
99213

$
$

$
$

Psychologists

90832 (based on
1 hr)
90791 (based on
½ hour)

$
$

$
$

LCSW

90832 (based on
1 hr)
90791 (based on
½ hour)

$
$

$
$

Podiatrists

99203
99213

$
$

$
$

Chiropractor

99203
99213

$
$

$
$

Occupational
Therapy

97165
97166
97167
97168

$
$

$
$

Physical Therapy

97161
97162
97163
97164

$
$

$
$

Speech Therapy

Initial Office
Visit Codes do
not
exist. Analysis
of specific tests
or follow- up
may be useful to
consider.

Plan rate as a
percentage of
Medicare

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