Supporting efforts to create a more transparent American healthcare system

From fostering a workplace culture centered on supporting the physical, emotional, career and financial wellbeing of employees to ensuring that benefit programs are compliant with local, state and federal requirements, effectively protecting the wellbeing of your employees connects directly to protecting the wellbeing of your organization overall. Compliance Connections delivers monthly, actionable guidance designed to help you manage and optimize the connections between the compliance of your benefits and human resources programs to overall organizational wellbeing.

For at least the past two decades, policy makers and stakeholders have supported efforts to make the American healthcare system more transparent, including making information about quality, efficiency, and cost available to the public in a reliable and understandable manner. In this context, legislative and regulatory activity now impose requirements impacting employer-sponsored health plans ranging from mental health parity non-quantitative treatment limitation (NQTL) reporting to network provider information to cost-sharing calculators. Although it is likely that carriers and third-party administrators (TPAs) will bear the burden in meeting these requirements, employers should be prepared to discuss how their insurance carriers and TPAs will meet these requirements. Below, we highlight some important questions to get conversations started on these topics.

Start with a list of treatment types.

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), as amended by the Affordable Care Act (ACA), generally requires that group health plans and insurers offering group insurance coverage ensure that the financial requirements and treatment limitations on mental health or substance use disorder (MH/SUD) benefits they provide are no more restrictive than those on medical or surgical (medical/surgical) benefits. There are requirements for determining parity with respect to financial requirements (such as copays) and for treatment limitations (which limit the scope or duration of benefits for treatment). Treatment limitations may be quantitative treatment limitations (QTLs), which are numerical in nature (such as visit limits), or non-quantitative (NQTLs), which are non-numerical limits on the scope or duration of benefits for treatment (such as preauthorization requirements). Building upon MHPAEA's parity requirements, the Consolidated Appropriations Act, 2021 (CAA) imposes a new comparative analysis reporting requirement related to the design and application of NQTLs. The first reporting item is a list of the NQTL coverage or other terms and a description of all MH/SUD and medical/surgical benefits to which they apply. While fully insured plans may rely upon their carriers as primarily responsible for this list, self-insured plans bear ultimate responsibility for meeting the reporting requirements, but will be unlikely to have the underlying data and may wish to address their TPAs' abilities to meet the requirements. Can your insurance carrier or TPA provide you with a list of NQTLs by type of MH/SUD and medical/surgical benefit?

Seek out the NQTL comparative analysis.

Once the list of NQTLs is created, it is time to conduct the comparative analysis. Under the CAA, in addition to the list of NQTLs and the benefits to which they apply, a comparative analysis report should contain the following:

  1. The factors used to determine that the NQTLs will apply to MH/SUD benefits and medical/surgical benefits;
  2. The evidentiary standards used for those factors;
  3. The comparative analyses demonstrating that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to MH/SUD 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/surgical benefits in the benefits classification; and
  4. The specific findings and conclusions reached by the group health plan or insurer, including any results of the analyses that indicate that the plan or coverage is or is not in compliance with the mental health parity requirements.

What information has your carrier or TPA provided to demonstrate the ability to meet the new NQTL comparative analysis reporting requirements?

Examine your vendor agreements for potential "gag" clauses.

The CAA adds other transparency in healthcare requirements, including a prohibition against what are referred to as "gag" clauses on price and quality information. More specifically, a group health plan may not enter into an agreement with a health care provider, network or association of providers, TPA, or other service provider offering access to a network of providers that would directly or indirectly restrict a group health plan from providing provider-specific cost or quality of care information or data, electronically accessing de-identified claims and encounter information or data for each enrollee, or sharing that information or data with a business associate. Group health plans will be required to submit annual attestations to HHS stating they are in compliance with these requirements. What amendments, if any, to your existing vendor agreements are needed to avoid "gag" clauses in violation of the CAA?

Consider how the new advanced EOB requirements may cause your plan participants and beneficiaries to seek additional guidance or information about alternative providers.

With plan years beginning on or after January 1, 2022, health plans must provide notices with advanced explanations of benefits (EOBs). A notice must meet certain timing requirements (between one and ten business days, depending upon the timing of the service) and contain information related to a provider's status or non-status as a network provider, contracted rates, good faith estimates of costs and cost-sharing, as well as other related information. Because plan participants and beneficiaries will have new rights to obtain these advanced EOBs, employers should consider how to explain the new information that should be available and how to obtain that information. Employers should work with their medical carriers or TPAs to understand the mechanisms through which the information will be made available as well as what resources will be available to participants and beneficiaries who have questions. Additionally, patients are likely to seek more information about potential alternatives when good faith cost estimates raise concerns, so employers should seek to understand what support will be provided for patients to find alternative care and how that information will be communicated to their employees and their employees' families. What additional provider selection support does your organization anticipate will be needed for your plan participants and beneficiaries to meet the new advanced EOB requirements under the CAA?

Create an action plan to communicate about new ID content requirements for the new 2022 plan year.

The CAA also requires that, for plan years beginning on or after January 1, 2022, plan identification cards issued to participants and beneficiaries must include the following:

  1. Any deductible applicable to such plan or coverage;
  2. Any out-of-pocket maximum limitation applicable to such plan or coverage; and
  3. A telephone number and Internet website address through which an individual may seek consumer assistance information.

Because additional information will be required on identification cards, production costs for those cards may increase, and employees may be confused about why new information is included. Thus, employers may wish to include information about the additional information that will be included on identification cards during the annual enrollment period immediately preceding the plan year for which these new requirements will apply. How will your organization communicate information about the new identification card content requirements to your plan members?

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This has been a preview edition of Compliance Connections, a monthly publication produced by Gallagher's Compliance Consulting Practice. For five more action steps, contact your Gallagher representative or visit our Compliance Resources page to subscribe and receive the full version of this publication each month.


Compliance is a series of actions, not a final destination. As a trusted advisor, Gallagher has developed this Compliance Connections series to help you pursue a path through employee benefits compliance issues as part of an overall continuing compliance plan. Employers should carefully evaluate their health and welfare plans to determine if they are in compliance with both federal and state law. If you have any questions about one or more of the compliance requirements listed above, or would like additional information on how Gallagher constantly monitors laws and regulations impacting employee benefits in order to support employers in their compliance efforts, please contact your Gallagher representative.


The intent of this analysis is to provide you with general information. It does not necessarily fully address all your organization's specific issues. It should not be construed as, nor is it intended to provide, legal advice. Questions regarding specific issues should be addressed by your organization's general counsel or an attorney who specializes in this practice area.