Behavioral Health Coverage Transparency Act

II 116TH CONGRESS 1ST SESSION S. 1576 To strengthen parity in mental health and substance use disorder benefits. IN THE SENATE OF THE UNITED STATES MAY 21, 2019 Ms. WARREN (for herself, Mr. MARKEY, Mr. BROWN, Mr. BLUMENTHAL, Ms. BALDWIN, Ms. SMITH, Mr. BOOKER, Mr. SANDERS, Ms. STABENOW, Mr. KAINE, Ms. HARRIS, Ms. HASSAN, Mrs. SHAHEEN, Mr. VAN HOLLEN, Mrs. GILLIBRAND, Ms. KLOBUCHAR, and Mr. MURPHY) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To strengthen parity in mental health and substance use disorder benefits. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Behavioral Health Cov- 4 erage Transparency Act’’. 5 SEC. 2. STRENGTHENING PARITY IN MENTAL HEALTH AND 6 SUBSTANCE USE DISORDER BENEFITS. 7 (a) PUBLIC HEALTH SERVICE ACT.—Section 8 2726(a) of the Public Health Service Act (42 U.S.C. 9 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1576 IS 300gg–26(a)) is amended by adding at the end the fol- 1 lowing new paragraph: 2 ‘‘(8) DISCLOSURE AND ENFORCEMENT RE- 3 QUIREMENTS.— 4 ‘‘(A) DISCLOSURE REQUIREMENTS.— 5 ‘‘(i) REGULATIONS.—Not later than 6 6 months after the date of enactment of this 7 paragraph, the Secretary, in cooperation 8 with the Secretaries of Labor and the 9 Treasury, shall issue regulations for car- 10 rying out this section, including an expla- 11 nation of documents that group health 12 plans and health insurance issuers offering 13 group or individual health insurance cov- 14 erage shall disclose in accordance with 15 clause (ii), the process governing the dis- 16 closure of such documents, and analyses 17 that such plans and issuers shall conduct 18 in order to demonstrate compliance with 19 this section. 20 ‘‘(ii) DISCLOSURE REQUIREMENTS.— 21 The documents required to be disclosed by 22 a group health plan or a health insurance 23 issuer offering group or individual health 24 insurance under clause (i) shall include an 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1576 IS annual report that details the specific anal- 1 yses performed to ensure compliance of 2 such plan or issuer with this section, in- 3 cluding any regulation promulgated pursu- 4 ant to this section. At a minimum, with re- 5 spect to the application of nonquantitative 6 treatment limitations (in this paragraph 7 referred to as ‘NQTLs’) to benefits under 8 the plan or coverage, such report shall— 9 ‘‘(I) identify the specific factors 10 the plan or issuer used in performing 11 its NQTLs analysis; 12 ‘‘(II) identify and define the spe- 13 cific evidentiary standards relied on to 14 evaluate such factors; 15 ‘‘(III) describe how the evi- 16 dentiary standards are applied to each 17 service category for mental health 18 benefits, substance use disorder bene- 19 fits, medical benefits, and surgical 20 benefits; 21 ‘‘(IV) disclose the results of the 22 analyses of the specific evidentiary 23 standards in each service category; 24 and 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1576 IS ‘‘(V) disclose the specific findings 1 of the plan or issuer in each service 2 category and the conclusions reached 3 with respect to whether the processes, 4 strategies, evidentiary standards, or 5 other factors used in applying the 6 NQTLs to mental health or substance 7 use disorder benefits are comparable 8 to, and applied no more stringently 9 than, the processes, strategies, evi- 10 dentiary standards, or other factors 11 used in applying the NQTLs to med- 12 ical and surgical benefits in the same 13 classification. 14 ‘‘(iii) GUIDANCE.—Not later than 6 15 months after the date of enactment of this 16 paragraph, the Secretary, in cooperation 17 with the Secretaries of Labor and the 18 Treasury, shall issue guidance to group 19 health plans and health insurance issuers 20 offering group or individual health insur- 21 ance coverage on how to satisfy the re- 22 quirements of this section, with respect to 23 making information available to current 24 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1576 IS and potential participants and bene- 1 ficiaries. Such information shall include— 2 ‘‘(I) certificate of coverage docu- 3 ments and instruments under which 4 the plan or coverage involved is ad- 5 ministered and operated that specify, 6 include, or refer to procedures, for- 7 mulas, and methodologies applied to 8 determine a participant’s or bene- 9 ficiary’s benefit under the plan or cov- 10 erage, regardless of whether such in- 11 formation is contained in a document 12 designated as the ‘plan document’; 13 and 14 ‘‘(II) a disclosure of how the plan 15 or issuer involved has provided that 16 processes, strategies, evidentiary stan- 17 dards, and other factors used in ap- 18 plying the NQTLs to mental health or 19 substance use disorder benefits are 20 comparable to, and applied no more 21 stringently than, the processes, strate- 22 gies, evidentiary standards, or other 23 factors used in applying the NQTLs 24 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1576 IS to medical and surgical benefits in the 1 same classification. 2 ‘‘(iv) DEFINITIONS.—In this para- 3 graph and paragraph (7), the terms ‘non- 4 quantitative treatment limitations’, ‘com- 5 parable to’, and ‘applied no more strin- 6 gently than’ have the meanings given such 7 terms in sections 146.136 and 147.160 of 8 title 45, Code of Federal Regulations (or 9 any successor regulation). 10 ‘‘(B) ENFORCEMENT.— 11 ‘‘(i) PROCESS FOR COMPLAINTS.—Not 12 later than 6 months after the date of en- 13 actment of this paragraph, the Secretary, 14 in cooperation with the Secretaries of 15 Labor and the Treasury, shall, with re- 16 spect to group health plans and health in- 17 surance issuers offering group or indi- 18 vidual health insurance coverage, issue 19 guidance to clarify the process and 20 timeline for current and potential partici- 21 pants and beneficiaries (and authorized 22 representatives and health care providers 23 of such participants and beneficiaries) with 24 respect to such plans and coverage to file 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1576 IS formal complaints of such plans or issuers 1 being in violation of this section, including 2 guidance, by plan type, on the relevant 3 State, regional, and national offices with 4 which such complaints should be filed. 5 ‘‘(ii) AUDITS.— 6 ‘‘(I) RANDOMIZED AUDITS.—Be- 7 ginning 1 year after the date of enact- 8 ment of this paragraph, the Secretary, 9 in cooperation with the Secretaries of 10 Labor and the Treasury, as applica- 11 ble, shall conduct randomized audits 12 of group health plans and health in- 13 surance issuers offering group or indi- 14 vidual health insurance coverage to 15 determine compliance with this sec- 16 tion. Such audits shall be conducted 17 on no fewer than 12 plans or cov- 18 erages per plan year. 19 ‘‘(II) ADDITIONAL AUDITS.—Be- 20 ginning 1 year after the date of enact- 21 ment of this paragraph, in the case of 22 a group health plan or health insur- 23 ance issuer offering group or indi- 24 vidual health insurance coverage with 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1576 IS respect to which any claim has been 1 filed during a plan year, the Sec- 2 retary, in cooperation with the Secre- 3 taries of Labor and the Treasury, as 4 applicable, may audit the books and 5 records of such plan or issuer to de- 6 termine compliance with this section. 7 ‘‘(iii) DENIAL RATES.—The Secretary, 8 in cooperation with the Secretaries of 9 Labor and the Treasury, shall collect infor- 10 mation on the rates of and reasons for de- 11 nial by group health plans and health in- 12 surance issuers offering group or indi- 13 vidual health insurance coverage of claims 14 for outpatient and inpatient mental health 15 and substance use disorder benefits com- 16 pared to the rates of and reasons for de- 17 nial of claims for medical and surgical ben- 18 efits. For the first plan year that begins on 19 or after the date that is 2 years after the 20 date of enactment of this paragraph, and 21 each subsequent plan year, the Secretary, 22 in such cooperation, shall submit to the 23 Committee on Energy and Commerce of 24 the House of Representatives and the 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1576 IS Committee on Health, Education, Labor, 1 and Pensions of the Senate the informa- 2 tion collected under the previous sentence 3 with respect to the previous plan year. 4 ‘‘(C) EFFECTIVE DATE.—Any require- 5 ments of group health plans and health insur- 6 ance issuers offering group or individual health 7 insurance coverage that are included in the reg- 8 ulations issued under subparagraph (A)(i), in- 9 cluding the requirement described in subpara- 10 graph (A)(ii) to disclose documents, shall have 11 an effective date of 1 year after the date of en- 12 actment of this paragraph.’’. 13 (b) EMPLOYEE RETIREMENT INCOME SECURITY ACT 14 OF 1974.—Section 712(a) of the Employee Retirement In- 15 come Security Act of 1974 (29 U.S.C. 1185a(a)) is 16 amended by adding at the end the following new para- 17 graph: 18 ‘‘(6) DISCLOSURE AND ENFORCEMENT RE- 19 QUIREMENTS.— 20 ‘‘(A) DISCLOSURE REQUIREMENTS.— 21 ‘‘(i) REGULATIONS.—Not later than 6 22 months after the date of enactment of this 23 paragraph, the Secretary, in cooperation 24 with the Secretaries of Health and Human 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1576 IS Services and the Treasury, shall issue reg- 1 ulations for carrying out this section, in- 2 cluding an explanation of documents that a 3 group health plan (or health insurance 4 issuer offering health insurance coverage in 5 connection with such a plan) shall disclose 6 in accordance with clause (ii), the process 7 governing the disclosure of such docu- 8 ments, and analyses that such plans and 9 issuers shall conduct in order to dem- 10 onstrate compliance with this section. 11 ‘‘(ii) DISCLOSURE REQUIREMENTS.— 12 The documents required to be disclosed by 13 a group health plan (or a health insurance 14 issuer offering health insurance coverage in 15 connection with such a plan) under clause 16 (i) shall include an annual report that de- 17 tails the specific analyses performed to en- 18 sure compliance of such plan or issuer with 19 this section, including any regulation pro- 20 mulgated pursuant to this section. At a 21 minimum, with respect to the application 22 of nonquantitative treatment limitations 23 (in this paragraph referred to as ‘NQTLs’) 24 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1576 IS to benefits under the plan or coverage, 1 such report shall— 2 ‘‘(I) identify the specific factors 3 the plan or issuer used in performing 4 its NQTLs analysis; 5 ‘‘(II) identify and define the spe- 6 cific evidentiary standards relied on to 7 evaluate such factors; 8 ‘‘(III) describe how the evi- 9 dentiary standards are applied to each 10 service category for mental health 11 benefits, substance use disorder bene- 12 fits, medical benefits, and surgical 13 benefits; 14 ‘‘(IV) disclose the results of the 15 analyses of the specific evidentiary 16 standards in each service category; 17 and 18 ‘‘(V) disclose the specific findings 19 of the plan or issuer in each service 20 category and the conclusions reached 21 with respect to whether the processes, 22 strategies, evidentiary standards, or 23 other factors used in applying the 24 NQTLs to mental health or substance 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1576 IS use disorder benefits are comparable 1 to, and applied no more stringently 2 than, the processes, strategies, evi- 3 dentiary standards, or other factors 4 used in applying the NQTLs to med- 5 ical and surgical benefits in the same 6 classification. 7 ‘‘(iii) GUIDANCE.—Not later than 6 8 months after the date of enactment of this 9 paragraph, the Secretary, in cooperation 10 with the Secretaries of Health and Human 11 Services and the Treasury, shall issue 12 guidance to group health plans (and health 13 insurance issuers offering health insurance 14 coverage in connection with such plans) on 15 how to satisfy the requirements of this sec- 16 tion, with respect to making information 17 available to current and potential partici- 18 pants and beneficiaries. Such information 19 shall include— 20 ‘‘(I) certificate of coverage docu- 21 ments and instruments under which 22 the plan or coverage involved is ad- 23 ministered and operated that specify, 24 include, or refer to procedures, for- 25 VerDate Sep 11 2014 01:38 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1576.IS S1576 pamtmann on DSKBFK8HB2PROD with BILLS 13 •S 1576 IS mulas, and methodologies applied to 1 determine a participant’s or bene- 2 ficiary’s benefit under the plan or cov- 3 erage, regardless of whether such in- 4 formation is contained in a document 5 designated as the ‘plan document’; 6 and 7 ‘‘(II) a disclosure of how the plan 8 or issuer involved has provided that 9 processes, strategies, evidentiary stan- 10 dards, and other factors used in ap- 11 plying the NQTLs to mental health or 12 substance use disorder benefits are 13 comparable to, and applied no more 14 stringently than, the processes, strate- 15 gies, evidentiary standards, or other 16 factors used in applying the NQTLs 17 to medical and surgical benefits in the 18 same classification. 19 ‘‘(iv) DEFINITIONS.—In this para- 20 graph, the terms ‘nonquantitative treat- 21 ment limitations’, [Text truncated for display. 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