Seyfarth Synopsis: Employer health plan sponsors, administrators, and insurers have been eagerly awaiting the U.S. Department of Labor’s upcoming guidance on mental health parity.  According to recent reports, newly proposed MHPAEA regulations have been sent to the White House for review and their public release is imminent. 

In 2020, Congress amended the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, requiring employer group health plans to complete a “comparative analysis” reviewing whether plan non-quantitative treatment limitations (e.g., medically necessity criteria, prior authorization standards, network adequacy, etc.) apply more stringent standards to mental health and substance use disorder treatments than what is applied in other contexts, such as surgical care. Despite these new requirements, every plan the Employee Benefits Security Administration surveyed received a failing grade in its first report of the new requirements in January 2022. 

In May 2023, the DOL’s Employee Benefits Security Administration Secretary Lisa M. Gomez said that the department was working to come out with more guidance on how to comply with federal mental health parity laws. Gomez added that the agency was working to produce proposed rules on parity and an annual report to Congress in the coming months.

The Office of Management and Budget reportedly received the DOL’s proposed regulations on Monday, July 10, and OMB confirmed Wednesday the rules were under review. Review by the OMB’s Office of Information and Regulatory Affairs is the final hurdle before regulations are publicly unveiled, which could be expected to be released in the near future.

Reports suggest the regulations could provide more guidance to plan sponsors on what is expected to be included in their comparative analysis. Some have speculated the regulations could include a “safe harbor” that would afford an easier path to compliance. This comes following the Biden-Harris Administration’s recent stated commitment to tackling the Nation’s mental health challenges.

Seyfarth is monitoring the progression of the regulations and will provide an update as soon as they are publicly available.