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Mental Health Parity: Agencies Issue FAQ Guidance on Eating Disorder Benefits and Release Draft Model Disclosure Form

The Department of Labor (“DOL”), Health and Human Services (“HHS”), and the Internal Revenue Service (“IRS”) issued FAQ 38 on June 16, 2017, providing guidance on mental health parity with respect to treatment of eating disorders, along with a draft model disclosure form, and requesting comments on the same. This guidance and solicitation of feedback is required by the 21st Century Cures Act (the “Cures Act”) which was enacted in December, 2016. The Cures Act contains several provisions aimed at improving compliance with mental health and substance use disorder parity rules for group health plans and clarifies that eating disorder benefits (including residential treatment) must be provided consistent with the requirements of the parity rules. Additionally, the Act requires that Federal agencies (1) issue guidance and solicit feedback from the public to help improve mental health parity compliance, and (2) conduct audits where the parity rules have been violated by a plan or insurer at least five times.

MHPAEA Parity and Disclosure Requirements

The Mental Health Parity and Addiction Equity Act (“MHPAEA”) requires parity between medical or surgical benefits and mental health or substance use disorder benefits. Specifically, parity is required in the application of annual and lifetime dollar limits, financial requirements (e.g., deductibles, copayments, and out-of-pocket maximums), quantitative treatment limitations (e.g., number of treatments/visit), and nonquantitative treatment limitations (e.g., restrictions based on type of facility). Additionally, MHPAEA expressly provides that a plan or insurer must disclose the criteria for medical necessity determinations with respect to mental health and substance use disorder benefits to any current or potential participant, beneficiary, or contracting provider upon request and must make available the reason for any denial of reimbursement or payment for services with respect to mental
health and substance use disorder benefits to the participant or beneficiary.

Treatment of Eating Disorders

FAQ 38 reminds plans and insurers that eating disorders are mental health conditions and therefore the mental health parity rules apply to any benefits, including residential treatment, a plan or insurer may offer for treatment of eating disorders (as required by the Cures Act). The FAQ requests comments on whether additional clarification is needed regarding how the MHPAEA requirements apply to treatments for eating disorders. Comm

Draft Model Disclosure Form

The Cures Act directs the agencies to solicit feedback from the public on how to improve the MHPAEA disclosure request process, while ensuring consumers have access to all information required to be disclosed. In response to this requirement, the agencies have released a draft model disclosure form that could be used by participants and their authorized representatives to request general information from their plan or insurer regarding nonquantitative treatment limitations that may affect the participant’s mental health and substance use disorder benefits. Additionally, the draft model disclosure form allows participants and their authorized representatives to obtain specific information after an adverse benefit determination involving mental health/substance use disorder benefits to support an appeal. The agencies have requested comments on the draft model disclosure form.

Comments are due by September 1, 2017.


The enactment of the Cures Act and subsequent guidance and request for comments from the agencies all indicate that compliance with mental health and substance use disorder parity rules will be a focus for the agencies in 2017 and beyond. Employers should review their plans to ensure compliance with the MHPAEA parity and disclosure requirements. The content herein is provided for educational and informational purposes only and does not contain legal advice. Please contact our office if you have any questions about FAQ 38, compliance with MHPAEA, or the Cures Act.