David Shillcutt, Senior Counsel in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Law360, in “4 Major Benefits Policy Developments from 2023,” by Kellie Mejdrich. (Read the full version – subscription required.)
Following is an excerpt:
Federal agencies including the U.S. Department of Labor, Internal Revenue Service and U.S. Department of Health and Human Services unveiled significant rules affecting employee benefits this year, including a proposal to subject more retirement plan rollover advice to strict conflict-of-interest standards.
Here, Law360 looks at four policy developments from 2023 that benefits attorneys should know. …
Mental Health Parity Proposed Rules
The Biden administration unveiled a long-awaited behavioral health proposal in July aimed at ensuring employer group health plans comply with laws restricting coverage limitations on mental health and substance use disorder treatments, including sweeping new reporting and evaluation requirements tied to how plans process participant claims.
The DOL, HHS and U.S. Department of the Treasury jointly unveiled a package of proposed rules July 25 that would crack down on how plans can put in place what are called nonquantitative treatment limitations. Those types of limitations reduce access to insurance coverage in ways that aren't easily countable, such as requiring prior authorization or conducting concurrent review, where a patient is evaluated for coverage while hospitalized or admitted to an inpatient facility.
The agencies released the proposal alongside additional technical guidance and a report to Congress on health plans' progress on complying with the law, called the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. The law specifically requires that employer health plans' limitations on behavioral health aren't any more stringent than what's applied in other contexts, such as medical or surgical care.
But the law sat on the books for more than a decade before Congress decided federal regulators needed greater authority to ensure insurers and health plans were complying. Congress gave the DOL sweeping new enforcement authority in 2020. The rules from July further implement those changes.
David Shillcutt, a behavioral healthcare attorney and senior counsel at Epstein Becker Green, said a key aspect of the proposed rules was making clear that intellectual and developmental disabilities were considered mental health conditions for parity purposes.
Shillcutt said another aspect of the proposed rules that stuck out to him had to do with the "willingness of the regulators to dive deep into regulating the everyday processes of decision-making and operations for health insurance."
"And it's not just behavioral health; it's physical and mental health, in order to do the comparison," Shillcutt said.
An extended public comment period for the rule ended in October, and the agency has since been analyzing those comments, which will eventually be publicly addressed in the final rule, according to the fall 2023 regulatory agenda.
