CMS-10773 - Emergency Justification

DATE:

03/29/2021

TO:

Acting Administrator, OIRA

FROM:

Elizabeth Richter
Acting Administrator, CMS

SUBJECT:

Request for Emergency Clearance of the Paperwork Reduction Act Package for
NQTL Analyses Requirements under the Consolidated Appropriations Act of
2021

Emergency Justification
The Centers for Medicare & Medicaid Services (CMS) is requesting that an information
collection request for the provisions in the Consolidated Appropriations Act of 2021
(Appropriations Act) enacted on December 27, 2020, related to comparative analyses with
respect to non-quantitative treatment limitations (NQTL) on mental health or substance use
disorder (MH/SUD) benefits be processed in accordance with the implementing regulations of
the Paperwork Reduction Act of 1995 (PRA) at 5 CFR 1320.13(a)(2)(iii). We believe that if the
normal, non-emergency clearance procedures are followed, CMS will be unable to conduct the
statutorily required reviews of the NQTL analyses and submit to Congress, and make publicly
available, a report on the conclusions of the reviews in 2021 by the statutory deadline of
December 27, 2021. CMS is requesting a determination by March 29, 2021. CMS is also
requesting waiver of the notice requirement set forth in 5 CFR 1320.13(d).
Specifically, we are requesting emergency approval for the information collection requirements
(ICRs) in section 203 of Title II of Division BB of the Appropriations Act requiring group health
plans and health insurance issuers offering group or individual health insurance coverage that
offer both medical/surgical benefits and MH/SUD benefits and that impose NQTLs on MH/SUD
benefits to perform and document their comparative analyses of the design and application of
NQTLs, and to make their comparative analyses available to the Departments of Labor, Health
and Human Services (HHS), and the Treasury (collectively, the Departments) or applicable state
authorities, upon request. The Departments are required to conduct reviews each year and submit
to Congress and make publicly available a report on the conclusions of those reviews.
In order to submit the report to Congress before December 27, 2021, CMS will need to start
conducting the reviews no later than May 2021. The normal PRA clearance process will not
allow CMS to complete all reviews in time to meet the statutory deadline. The Department of
Labor is also seeking emergency review and approval, and waiver of the notice requirement set
forth in 5 CFR 1320.13(d), for the PRA package that will account for their reviews.

1
INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed
and may be privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not
authorized to receive the information. Unauthorized disclosure may result in prosecution to the fullest extent of the law.

Background
Section 203 of Title II of Division BB of the Appropriations Act amended the Paul Wellstone
and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), in part,
by expressly requiring group health plans and health insurance issuers offering group or
individual health insurance coverage that offer both medical/surgical benefits and MH/SUD
benefits and that impose NQTLs on MH/SUD benefits to perform and document their
comparative analyses of the design and application of NQTLs. Further, beginning 45 days after
the date of enactment of the Appropriations Act, plans and issuers must make their comparative
analyses available to the Departments or applicable state authorities, upon request, including the
following information:
1.
The specific plan or coverage terms or other relevant terms regarding the NQTLs and
a description of all MH/SUD and medical or surgical benefits to which each such
term applies in each respective benefits classification;
2.
The factors used to determine that the NQTLs will apply to MH/SUD benefits and
medical or surgical benefits;
3.
The evidentiary standards used for the factors identified, when applicable, provided
that every factor shall be defined, and any other source or evidence relied upon to
design and apply the NQTLs to MH/SUD benefits and medical or surgical benefits;
4.
The comparative analyses demonstrating that the processes, strategies, evidentiary
standards, and other factors used to apply the NQTLs to MH/SUD benefits, as written
and in operation, are comparable to, and are applied no more stringently than, the
processes, strategies, evidentiary standards, and other factors used to apply the
NQTLs to medical/surgical benefits in the benefits classification; and
5.
The specific findings and conclusions reached by the plan or issuer, including any
results of the analyses that indicate that the plan or coverage is or is not in compliance
with MHPAEA.
The Appropriations Act provides that the Departments shall request that a group health plan or
issuer submit the comparative analyses for plans that involve potential violations of MHPAEA or
complaints regarding noncompliance with MHPAEA that concern NQTLs, and any other
instances in which the Departments determine appropriate. The Appropriations Act further
requires the Departments, after review of the comparative analyses, to share information on
findings of compliance and noncompliance with the state where the plan is located or the state
where the issuer is licensed to do business.
Additionally, not later than one year after enactment of the Appropriations Act and annually by
October 1 thereafter, the Secretary of HHS must submit to Congress and make publicly available
a report that contains:
1.
A summary of the comparative analyses requested, including the identity of each plan
or issuer that is determined not to be in compliance after a final determination by the
Secretary;
2
INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed
and may be privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not
authorized to receive the information. Unauthorized disclosure may result in prosecution to the fullest extent of the law.

2.

3.

4.

5.

The Secretary’s conclusions as to whether each plan or issuer submitted sufficient
information for the Secretary to review the comparative analyses requested for
compliance with MHPAEA;
For each plan or issuer that submitted sufficient information the Secretary to review
the comparative analyses requested, the Secretary’s conclusion as to whether and why
the plan or issuer is in compliance with MHPAEA;
The Secretary’s specifications with respect to the additional information that each
plan or issuer that did not submit sufficient information must submit for the Secretary
to review the comparative analyses for compliance with MHPAEA; and
The Secretary’s specifications of the actions each plan or issuer that the Secretary
determined is not in compliance must take to be in compliance with MHPAEA,
including the reason the Secretary determined the plan or issuer was not in
compliance.

3
INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed
and may be privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not
authorized to receive the information. Unauthorized disclosure may result in prosecution to the fullest extent of the law.