David Shillcutt, Senior Counsel in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Law360, in “3 Takeaways from Biden's Mental Health Parity Proposal,” by Kellie Mejdrich. (Read the full version – subscription required.)

Following is an excerpt:

The Biden administration's sweeping behavioral health policy rollout Tuesday provided employer group health plans with crucial new information on what they must do to comply with laws restricting coverage limitations on mental health and substance use disorder treatments, benefits attorneys say.

Taking center stage Tuesday were 395 pages of proposed rules from the U.S. Department of Labor, the U.S. Department of the Treasury, and the U.S. Department of Health and Human Services cracking down on how plans can impose so-called nonquantitative treatment limits on coverage for behavioral health. Nonquantitative limits describe ways that plans restrict health care coverage that aren't easily countable, such as requiring prior authorization or concurrent review, where a patient is evaluated for coverage while hospitalized or admitted to an inpatient facility.

The proposed rules outline detailed data collection and evaluation requirements that plans must undertake in order to demonstrate to regulators that they're complying with federal mental health parity laws. The plans are required to compare their nonquantitative treatment limitations on behavioral health care with treatment limitations in other contexts, such as medical or surgical benefits. The rules also cover how plans have to report the results of these comparative analyses to state and federal government agencies, as well as individual plan participants.

Plans need to heed other information from Tuesday's release beyond the rules, attorneys say, including technical guidance and a report to Congress where the agencies for the first time named certain out-of-compliance plans. …

Managed Care under the Microscope

Attorneys also highlighted that the proposed regulations outline significant new requirements on how plans have to justify treatment limitations used to control costs and better direct limited plan resources, often referred to as managed care or utilization management.

The way the proposed rules accomplish that is complicated — David Shillcutt, senior counsel at Epstein Becker Green, pointed out that the proposal involves 50 pages of regulation per agency, for each of the three involved.

Shillcutt and other attorneys advising employer health plans and issuers on parity laws characterized the proposal overall as a wide-ranging set of new requirements on health plans that could change how limits on coverage have been used to control costs.

The proposed rules said plans might incur costs to come into compliance with the new requirements and requested comment on the cost impact. The agencies also said they expect that the proposed changes would result in expanded coverage of mental health and substance use disorder benefits, but it is possible plans would instead reduce coverage for medical and surgical benefits by imposing the types of limitations they apply on the behavioral health side.

"It is a culmination of what I think is the most sweeping expansion of regulatory power in managed health care since the advent of managed care," Shillcutt said, adding he expects that plans will need additional staff to implement the proposed changes.

"It effectively creates a presumption of noncompliance that plans have to rebut through the careful documentation of the evidence that they use to support nearly every decision that they make in designing their managed care strategies," Shillcutt said.

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.