AHLA's Speaking of Health Law

Top Ten 2025: The Impact of the MHPAEA Final Rule—Focused on Access

• American Health Law Association

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Based on AHLA's annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2025. In the seventh episode, Christianna Finnern, Shareholder, Winthrop & Weinstine PA, speaks with Noreen Vergara, Partner, Husch Blackwell LLP, about the Mental Health Parity and Addiction Equity Act (MHPAEA) and its requirements. They discuss some of the changes in the final rule, whether the new administration or the Loper Bright Supreme Court case will affect compliance and enforcement of MHPAEA, and how MHPAEA impacts average health care consumers and those who don’t work in the benefits and managed care space. From AHLA’s Behavioral Health Practice Group.

Watch the conversation here.

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Speaker 1:

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Speaker 2:

A HLA is pleased to present this special series highlighting the top 10 health law issues of 2025, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year. To stay updated on all the major health law news, subscribe to ALA's New Health Law Daily podcast. Available exclusively for premium members@americanhealthlaw.org slash daily podcast .

Speaker 3:

Hello, everybody. My name is Christiana Finner , and I'm an attorney at the law firm of Win and Weinstein in Minneapolis, Minnesota. I practice in my firm's healthcare regulatory group, and I am a , uh, member for many years of the American Health Law Association Behavioral Health Practice Group. I am currently the vice chair for member engagement. Um, I'm very pleased to be here today , um, on episode number seven of our top 10 , um, issues in health Law 2025. Um, joining me today is Noreen Ra , who is a partner at Hush Blackwell, and she is the co-author of an article , um, entitled The Impact of the 2024 Mental Health Parity and Addiction Equity Act, final Rule in 2025, focused on access. And , um, Noreen is going to answer some questions for us today about , um, the article. And Noreen, I will turn it over to you to introduce yourself.

Speaker 4:

Thank you so much, Christiana. It's, it's very nice to be here. Thank you for inviting me to talk about a topic that I care very much about and have worked in for the, the better part of, of two decades. Um, I'm a partner at Hush Blackwell in the healthcare regulatory practice group and specialize in, in behavioral health, but also in healthcare reimbursement. And that's, that's where mental health parity sits. Uh , prior to joining Hush , I worked in-house at the National Association of Insurance Commissioners where I got a, a heavy , a dose of Affordable Care Act regulation. Uh, then I was general counsel for a behavioral healthcare managed care company for about eight years, and now I'm, now I'm at Hush , uh, working on, on the same, same laws, different, I guess different aspect, different side,

Speaker 3:

Different lens. Very good. Um, well, you obviously have a lot of background in behavioral health. Parody is a huge thing. Um, and, you know , um, the , these were very long awaited revisions. What are your thoughts generally on the 2024 final rule and , um, its requirements?

Speaker 4:

So my overall thoughts are the 20 20 24 final rule. Uh, basically there, there's, in my mind a , a vibe shift. Uh, the departments of Labor , uh, health and Human Services and the Treasury Department have indicated through this rule that they are ready to enforce. Um, and they've been getting that kinda warming up towards that for, for a long time. Um, just as, as background , uh, mia , which I will probably frequently say MIA or parody interchangeably, but what I'm really referring to is the Federal Mental Health Parity and Addiction Equity Act. And then we're talking today about the 2024 final rule, which builds on a 2013 final rule. So there's, there's over a decade or close to a decade, well, I guess over a decade, if you go back to 2008, when, when this act was enacted of increasing enforcement, increasing , um, I guess attention paid by the, the federal regulators to how behavioral health benefits and are treated comparably to medical surgical benefits , um, MIAA is regulated by three different agencies. So when I say the departments, I'm referring to a trifecta of the departments of labor , um, which regulates fully insured plans , um, or self-funded, sorry, not fully insured, self-funded plans. My mistake , uh, department of Health and Human Services, which regulates fully insured plans. And then the Treasury Department, which regulates church plans. So those three together are the departments. And in this 2024 final rule, they've indicated the rate ready to enforce. Um, they've built on the 2013 rule years of subregulatory guidance and red flag documents issued to the states. They've issued reports to Congress, they've expressed the need to have additional authority, which they received in the Consolidated Appropriations Act. So from a enforcement and, and what the departments need , um, they're ready to go. That being said, the other takeaway that I have from this role is that the departments are still struggling with , with how to comply with this law themselves. In , in my review, in my estimation , um, they're still changing definitions. They are increasing , uh, and adding new concepts. Um, and they are making dramatic changes with, you know, in regulation to how benefits will be administered, not just for mental health and, and substance use disorder benefits, but all benefits, medical, surgical, and behavioral health. So I really think this is a significant rule. Um, it's, it's a lot got a lot in there. It's very dense, but it is, in my view, the final step to , um, the departments and particularly the Federal Department of Labor completing audits, finding, you know, acts of non-compliance and then sending letters to members and allowing ERISA suits to proceed forward. And that's been the kind of boogeyman lurking in the corner. And it, it seems, it seems pretty close right now.

Speaker 3:

Good. Well, this is , um, you know, very gonna be very interesting times with , um, the final rule and, and how, kind of how it intersects with the new administration. Tell us , um, tell us about some of the changes in the 2024 final rule.

Speaker 4:

Okay, so there are many , uh, one kind of major underlying change is kind of the definition of mental health benefits prior to this rule. Um, and historically health plans have had the discretion to categorize their benefits in the medical, surgical or behavioral, and this is, they make this decision through a variety of factors. Um, a significant one is what is the nature of the condition being treated, but it's, it's not the only factor as to why a benefit or procedure , um, gets , uh, classified as one or the other. In the 2024 final rule one change is that the departments specify , um, that the plans must use the current , uh, DSM, and that is a, a manual , um, that designates or lists out mental health and, and behavioral health conditions. It, it isn't a benefit guidebook. It, it exists. I think we're in , uh, well, we've had several additions of it, but it is not intended, it never has been intended to , uh, impact benefits. However, now the federal, the 2024 rule says, look at the DSM, and if the treatment or procedure is used to treat a mental health condition, then it is a mental health benefit. That sounds very, you know, small and just a minor shift of wording. And it is, but it's, it's a significant change, especially for those treatments and , and procedures and services that can have both a medical surgical and a behavioral health use. For example , um, speech therapy, occupational therapy for , uh, under this new rule will be treated differently depending on whether this , the patient is receiving speech therapy and occupational therapy or autism, a behavioral health condition in the DSM or , um, you know, an issue with the, a physical issue with the, the mouth or , um, you know, tongue a a purely medical condition. Those access to treatment now is, is, has to follow the condition being , um, treated, and that is a very significant change. Another change in this rule is the requirement for plans, health plans to proactively take action, reasonable action, but still action to address , um, negative or instances of inappropriate or lack of access to parity to behavioral health benefits. Um, this is shown in their dis in the department's discussion of licensure types and their network. Um, whereas prior to the 2024 rule plans had to track and trend and , and review what was happening, but there was no affirmative requirement to change their network to add more licensure types, for example, for behavioral health benefits or change credentialing standards to make it easier for behavioral health licensure licensed clinicians to get in versus medical surgical. That is a wholly new , uh, balancing test and , and way to look at it .

Speaker 3:

Noreen, switching kind of gears to , um, what we kind of , uh, previewed , um, earlier was, you know, the impact of administration changes , um, on mia . Do you think that the Department of Government Efficiency Doge or the Supreme Court case , Loper Bright , which recently came down, will have an effect on MIA compliance and or enforcement?

Speaker 4:

Well, this is something I've been thinking a lot about, and the short answer I think is yes , um, it will have an effect. Um, so Loper Bright came out last fall and around the same time that the interim final rule for the 2024 final rule was, was out and being reviewed. I'm not a LOPA bright expert and or work in this area. However , um, you know , I do follow it and understand that, you know, the Supreme Court overturned the Chevron doctrine in that case, which allowed deference to executive agencies, broadly speaking. Um, the reason I think that Loper Bright may have an impact or will have an impact if reviewed is because meia from its outset , uh, going back to the 2013 regulation, and, and it's no different in this 2024 regulation meia , as we know, it is largely a creature of regulation as opposed to statute. Um , meia itself is, is pretty short , um, and entire concepts , um, for example, the non-quantitative treatment limitation or NQTL, which is of much, much focus in the 2024 Reg NQTL is, is a concept that appeared in the 2013 final regulation. It , it doesn't go back to the, to the law. So , um, or actually even the 2013 interim reg , final reg. So given the structure of Meia and what is happening at a federal level with , um, the change in administration, I do think if reviewed laws like MIA are vulnerable because most of the teeth are, are built into the reg as opposed to the law itself. Um, and, and mia we've had a, a decade of this , um, regulatory guidance and sub-regulatory guidance, and the departments are ready to move on that regulatory guidance. Um, a change or a shift in how courts interpret that regulatory guidance of challenge, I think could , could really have a, a very significant impact on mia . Um, similarly with Doge, or maybe not similarly, but you know, I think Doge may very well have an impact. Um, MIA is regulated or enforced by three agencies working together, the Department of Labor, department of Health and Human Services and Treasury. Um, we know that treasury is undergoing quite a, a , a review, and we don't know yet whether there will be a change to any of their scope going forward. Treasury is responsible for reviewing or enforcing and regulating church plans in Mepe , which is not something intuitively that you would think the Treasury Department would have authority over. Um, similarly, we don't know what will happen with Health and Human Services , um, or the Department of Labor and its ability to enforce areas of, of law that were traditionally , um, reserved to the states. The way that the , um, the regulatory framework or the enforcement structure in MIAA is set up is that in , in , in the 24 Reg and, and really with the Consolidated Appropriations Act, the Department of Labor has the ability to kind of step out in front and conduct the audits and, and do the work, and then they share their findings with other agencies in the states. However, this is, this is a , a bit of a flip from how re insurance has been regulated for, for 150 years, which it's traditionally been a function of state insurance regulation that changed with the Affordable Care Act. And then now we've, we've got federal enforcement in a very big way. Um, we don't know the extent of that, whether that framework, what that's going to look like , um, after dos. And I think that's , uh, I think that's definitely something to, to pay close attention to.

Speaker 3:

Along those lines, Mia isn't a well-known law , um, which, you know, is , um, somewhat regrettable. Um, how would it impact an everyday consumer of healthcare or someone that doesn't work around benefits and managed care?

Speaker 4:

Absolutely. Um, people aren't, most people don't even know what Meia is. They're not inclined to think about behavioral health benefits unless they need the service. And when you need the service, you then you need it. Um, however, under the Affordable Care Act , uh, you know, broadly speaking, when a health plan offers mental health and substance use disorder benefits or collectively behavioral health benefits, when they offer those and they sell those, they need to provide those at parity. Um, and then that's where all the testing comes in. And , and you get the, the complicated , um, definitional framework. The testing requirements for parity apply across all benefits. It's not just behavioral, it's a , um, you have to look at what the health plan is doing on the medical side in order to determine whether what the plan is doing on the behavioral side is compliant or not. So this requires it's kind of forced integration. Um, so that produces that kind of forced integration. Plus, you know, compliance is really getting ready to start pending Loper and Doge , um, that can present some odd decisions and, and appear odd to the consumer. As an example of some things that might change that you wouldn't think of , um, because of, of Meia is prior authorization , um, several years ago , um, maybe not even that far, you know, not far in the past prior authorization on medical benefits going into inpatient in the hospital was pretty rare. Um, however, now it's back and we're finding health plans that are requiring prior authorization across all benefits, every inpatient stay. You must get a prior auth before you go in. So why are those things back? Well , I don't have a , a crystal ball or have any insight information, but parity requires, you know, comparability and it also prohibits a health plan from treating or , um, imposing stricter and more stringent requirements on the behavioral health side. Then they do the medical. So in the prior authorization situation, prior authorization was a pretty common , um, N-Q-T-L-I guess to be used on the behavioral health side, getting an authorization before you go inpatient into a , uh, behavioral health facility, not so much on the medical side, but parity one, at least intuitive outcome that that appears to be playing out. Um, you can't have that, you can't have prior authorization on behavioral and not a medical surgical. So in one sense, maybe the departments had hoped that prior authorization would reduce and, and would disappear across the board because you don't do it on medical. Why would you do it on behavioral? That makes a lot of sense, and maybe that does happen for some plans, but an alternate way , um, to be compliant is to require prior authorization for everything because then you're not, you know, reducing or more stringent on behavioral health. Everybody has the same high bar to get inpatient. So those are some of the , um, the ways that MIA compliance and the , the decisions that plans are making behind the scenes , um, can impact those who, who aren't paying attention to behavioral health benefits at all.

Speaker 3:

Good. Well, this has been , um, very informative. I've really enjoyed getting the chance to speak with you about the changes .

Speaker 4:

Thank

Speaker 3:

You . The final rule, and if you all in the audience have also enjoyed this very much, encourage you to get involved with the behavioral health practice group within the A HLA. It is a fantastic resource for , um, articles like this and a great way to get to know other people who practice in the behavioral health space. Um, and Noreen, any final , uh, thoughts or or words from you on , uh, the final rule and , um, AIA going forward?

Speaker 4:

No, I would just like to say thank you for having me. Um, I will continue to follow parody because I have, I have thus far and I think it's fascinating. Um, so I appreciate, I

Speaker 2:

Appreciate the opportunity to talk with you. Thank you for listening. If you enjoyed this episode, be sure to subscribe to ALA's speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community , visit American health law.org .