Weekend Update

The 117th U.S. Congress convened today, and Rep. Nancy Pelosi (D Calif.) was re-elected Speaker of the House. The Wall Street Journal reports that “Democrats expect to have 222 seats to Republicans’ 211.” Party leadership in the Senate hinges on the two special elections that will be held in Georgia on January 5.

The federal mandate for health plans to cover the Moderna COVID-19 vaccine begins today. According to the CDC as of yesterday at 9 am ET, 13,071,925 doses of the Pfizer-BioNTech and Moderna vaccines have been distributed across the U.S. and 4,225,756 initial doses of those vaccines have been administered.

Turning back to the Affordable Care Act amendments included in Division BB of the Consolidated Appropriations Act, 2021, that require health plan attention in order to implement then for 2022:

  • Section 107 requires health plan identification cards to include the following information:

‘‘(1) Any deductible applicable to such plan or coverage.

‘‘(2) Any out-of-pocket maximum limitation applicable to such plan or coverage.

‘‘(3) A telephone number and Internet website address through which such individual may seek consumer assistance information, such as information related to hospitals and urgent care facilities that have in effect a contractual relationship with such plan or coverage for furnishing items and services under such plan or coverage’’.

  • Section 116 creates new requirements on health plan network provider directories and holds health plans and providers liable to consumers/ patients liable for errors in those directories, although the provider may shift certain aspects of that liability to the health plan in the network contract.

There is one requirement in the new law (relating to mental heath parity) that takes effect on February 9, 2021. The section requires specific comparative analyses to demonstrate health plan compliance with the most complicated provision of the federal mental health parity law, non-quantitative treatment limitations, e.g, medical necessity, pre-authorization. Here is a link to the most recent federal government FAQs on NQTLs.

Section 203 of Division B states

In the case of a group health plan or a health insurance issuer offering group or individual health insurance coverage that provides both medical and surgical benefits and mental health or substance use disorder benefits and that imposes nonquantitative treatment limitations (referred to in this section as ‘NQTLs’) on mental health or substance use disorder benefits, such plan or issuer shall perform and document comparative analyses of the design and application of NQTLs and, beginning 45 days after the date of enactment of the Consolidated Appropriations Act, 2021, make available * * * the Secretary of Health and Human Services [FEHBlog note edited for the FEHBP], upon request, the comparative analyses and the following information:

‘‘(i) The specific plan or coverage terms or other relevant terms regarding the NQTLs and a description of all mental health or substance use disorder and medical or surgical benefits to which each such term applies in each respective benefits classification.

‘‘(ii) The factors used to determine that the NQTLs will apply to mental health or substance use disorder benefits and medical or surgical benefits.

‘‘(iii) The evidentiary standards used for the factors identified in clause (ii), when applicable, provided that every factor shall be defined, and any other source or evidence relied upon to design and apply the NQTLs to mental health or substance use disorder benefits and medical or surgical benefits.

‘‘(iv) The comparative analyses demonstrating that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to mental health or substance use disorder 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 or surgical benefits in the benefits classification.

‘‘(v) The specific findings and conclusions reached by the group health plan or health insurance issuer with respect to the health insurance coverage, including any results of the analyses described in this subparagraph that indicate that the plan or coverage is or is not in compliance with this section.

The law permits that Secretary of HHS to use the comparative analyses for investigative purposes when a mental health parity compliance complaint has been made against the health plan.

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