Mental Health Parity and Addiction Equity Regs/Prior Approval

Gary D

The ERISA section of the interim final regs published on 2/2/10, 75 Fed. Reg.5410 have two examples in which a prior approval requirement for mental health benefits is deemed an unlawful "nonquantitative" treatment limitation. The statutory ERISA amendments at 29 U.S.C.A. 1185a (3)(B)(iii) defines "treatment limitation" without any distinction between "quantitative" and "nonquantitative" limitiations, and doesn't suggest anywhere that a prior authorization is a"limit on the scope or duration of treatment." Has anyone considered whether the regulation exceeds statutory authority by making two cateogies of treatment limitations when the statutory definition seems limited to quantitative limits? Is a preauthorization requirement arguably within the catchall "limits on the scope or duration of treatment" that should not be allowed?

David Garvey

re-testing the reply

Jessica Ayer

I discussed this question with a knowledgeable benefits attorney who writes a lot of articles for our benefits newsletters. He didn’t think they did since the examples in the statute are not considered by most in his industry to be exhaustive. He agreed that it might not technically restrict scope or duration but that it is consistent with the legislative intent, as set forth in the history, that the act is intended to ensure equal access to mental health and substance use disorder benefits. He added that a prior authorization limit certainly affects access.

He also noted that if the topic is ever addressed in a civil action, judges would give significant weight to the final regulations once they are effective.