Behavioral Health Coverage Transparency Act

I 116TH CONGRESS 1ST SESSION H. R. 2874 To strengthen parity in mental health and substance use disorder benefits. IN THE HOUSE OF REPRESENTATIVES MAY 21, 2019 Mr. KENNEDY (for himself, Mr. TONKO, Mr. MICHAEL F. DOYLE of Pennsyl- vania, Ms. CLARKE of New York, Mr. ENGEL, Mr. SOTO, Mr. CA´RDENAS, Mrs. DINGELL, Ms. CASTOR of Florida, Mr. DEUTCH, Mr. CROW, Ms. SCHAKOWSKY, and Mr. DESAULNIER) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, and Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the com- mittee concerned 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 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2874 IH SEC. 2. STRENGTHENING PARITY IN MENTAL HEALTH AND 1 SUBSTANCE USE DISORDER BENEFITS. 2 (a) PUBLIC HEALTH SERVICE ACT.—Section 3 2726(a) of the Public Health Service Act (42 U.S.C. 4 300gg–26(a)) is amended by adding at the end the fol- 5 lowing new paragraph: 6 ‘‘(8) DISCLOSURE AND ENFORCEMENT RE- 7 QUIREMENTS.— 8 ‘‘(A) DISCLOSURE REQUIREMENTS.— 9 ‘‘(i) REGULATIONS.—Not later than 6 10 months after the date of enactment of this 11 paragraph, the Secretary, in cooperation 12 with the Secretaries of Labor and the 13 Treasury, shall issue regulations for car- 14 rying out this section, including an expla- 15 nation of documents that group health 16 plans and health insurance issuers offering 17 group or individual health insurance cov- 18 erage shall disclose in accordance with 19 clause (ii), the process governing the dis- 20 closure of such documents, and analyses 21 that such plans and issuers shall conduct 22 in order to demonstrate compliance with 23 this section. 24 ‘‘(ii) DISCLOSURE REQUIREMENTS.— 25 The documents required to be disclosed by 26 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2874 IH a group health plan or a health insurance 1 issuer offering group or individual health 2 insurance coverage under clause (i) shall 3 include an annual report that details the 4 specific analyses performed to ensure com- 5 pliance of such plan or issuer with this sec- 6 tion, including any regulation promulgated 7 pursuant to this section. At a minimum, 8 with respect to the application of non- 9 quantitative treatment limitations (in this 10 paragraph referred to as ‘NQTLs’) to ben- 11 efits under the plan or coverage, such re- 12 port shall— 13 ‘‘(I) identify the specific factors 14 the plan or issuer used in performing 15 its NQTLs analysis; 16 ‘‘(II) identify and define the spe- 17 cific evidentiary standards relied on to 18 evaluate such factors; 19 ‘‘(III) describe how the evi- 20 dentiary standards are applied to each 21 service category for mental health 22 benefits, substance use disorder bene- 23 fits, medical benefits, and surgical 24 benefits; 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2874 IH ‘‘(IV) disclose the results of the 1 analyses of the specific evidentiary 2 standards in each service category; 3 and 4 ‘‘(V) disclose the specific findings 5 of the plan or issuer in each service 6 category and the conclusions reached 7 with respect to whether the processes, 8 strategies, evidentiary standards, or 9 other factors used in applying the 10 NQTLs to mental health or substance 11 use disorder benefits are comparable 12 to, and applied no more stringently 13 than, the processes, strategies, evi- 14 dentiary standards, or other factors 15 used in applying the NQTLs to med- 16 ical and surgical benefits in the same 17 classification. 18 ‘‘(iii) GUIDANCE.—Not later than 6 19 months after the date of enactment of this 20 paragraph, the Secretary, in cooperation 21 with the Secretaries of Labor and the 22 Treasury, shall issue guidance to group 23 health plans and health insurance issuers 24 offering group or individual health insur- 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2874 IH ance coverage on how to satisfy the re- 1 quirements of this section, with respect to 2 making information available to current 3 and potential participants and bene- 4 ficiaries. Such information shall include— 5 ‘‘(I) certificate of coverage docu- 6 ments and instruments under which 7 the plan or coverage involved is ad- 8 ministered and operated that specify, 9 include, or refer to procedures, for- 10 mulas, and methodologies applied to 11 determine a participant’s or bene- 12 ficiary’s benefit under the plan or cov- 13 erage, regardless of whether such in- 14 formation is contained in a document 15 designated as the ‘plan document’; 16 and 17 ‘‘(II) a disclosure of how the plan 18 or issuer involved has provided that 19 processes, strategies, evidentiary stan- 20 dards, and other factors used in ap- 21 plying the NQTLs to mental health or 22 substance use disorder benefits are 23 comparable to, and applied no more 24 stringently than, the processes, strate- 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2874 IH gies, evidentiary standards, or other 1 factors used in applying the NQTLs 2 to medical and surgical benefits in the 3 same classification. 4 ‘‘(iv) DEFINITIONS.—In this para- 5 graph and paragraph (7), the terms ‘non- 6 quantitative treatment limitations’, ‘com- 7 parable to’, and ‘applied no more strin- 8 gently than’ have the meanings given such 9 terms in sections 146.136 and 147.160 of 10 title 45, Code of Federal Regulations (or 11 any successor regulation). 12 ‘‘(B) ENFORCEMENT.— 13 ‘‘(i) PROCESS FOR COMPLAINTS.—Not 14 later than 6 months after the date of en- 15 actment of this paragraph, the Secretary, 16 in cooperation with the Secretaries of 17 Labor and the Treasury, shall, with re- 18 spect to group health plans and health in- 19 surance issuers offering group or indi- 20 vidual health insurance coverage, issue 21 guidance to clarify the process and 22 timeline for current and potential partici- 23 pants and beneficiaries (and authorized 24 representatives and health care providers 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2874 IH of such participants and beneficiaries) with 1 respect to such plans and coverage to file 2 formal complaints of such plans or issuers 3 being in violation of this section, including 4 guidance, by plan type, on the relevant 5 State, regional, and national offices with 6 which such complaints should be filed. 7 ‘‘(ii) AUDITS.— 8 ‘‘(I) RANDOMIZED AUDITS.—Be- 9 ginning 1 year after the date of enact- 10 ment of this paragraph, the Secretary, 11 in cooperation with the Secretaries of 12 Labor and the Treasury, as applica- 13 ble, shall conduct randomized audits 14 of group health plans and health in- 15 surance issuers offering group or indi- 16 vidual health insurance coverage to 17 determine compliance with this sec- 18 tion. Such audits shall be conducted 19 on no fewer than 12 plans or cov- 20 erages per plan year. 21 ‘‘(II) ADDITIONAL AUDITS.—Be- 22 ginning 1 year after the date of enact- 23 ment of this paragraph, in the case of 24 a group health plan or health insur- 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2874 IH ance issuer offering group or indi- 1 vidual health insurance coverage with 2 respect to which any claim has been 3 filed during a plan year, the Sec- 4 retary, in cooperation with the Secre- 5 taries of Labor and the Treasury, as 6 applicable, may audit the books and 7 records of such plan or issuer to de- 8 termine compliance with this section. 9 ‘‘(iii) DENIAL RATES.—The Secretary, 10 in cooperation with the Secretaries of 11 Labor and the Treasury, shall collect infor- 12 mation on the rates of and reasons for de- 13 nial by group health plans and health in- 14 surance issuers offering group or indi- 15 vidual health insurance coverage of claims 16 for outpatient and inpatient mental health 17 and substance use disorder benefits com- 18 pared to the rates of and reasons for de- 19 nial of claims for medical and surgical ben- 20 efits. For the first plan year that begins on 21 or after the date that is 2 years after the 22 date of enactment of this paragraph, and 23 each subsequent plan year, the Secretary, 24 in such cooperation, shall submit to the 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2874 IH Committee on Energy and Commerce of 1 the House of Representatives and the 2 Committee on Health, Education, Labor, 3 and Pensions of the Senate the informa- 4 tion collected under the previous sentence 5 with respect to the previous plan year. 6 ‘‘(C) EFFECTIVE DATE.—Any require- 7 ments of group health plans and health insur- 8 ance issuers offering group or individual health 9 insurance coverage that are included in the reg- 10 ulations issued under subparagraph (A)(i), in- 11 cluding the requirement described in subpara- 12 graph (A)(ii) to disclose documents, shall have 13 an effective date of 1 year after the date of en- 14 actment of this paragraph.’’. 15 (b) EMPLOYEE RETIREMENT INCOME SECURITY ACT 16 OF 1974.—Section 712(a) of the Employee Retirement In- 17 come Security Act of 1974 (29 U.S.C. 1185a(a)) is 18 amended by adding at the end the following new para- 19 graph: 20 ‘‘(6) DISCLOSURE AND ENFORCEMENT RE- 21 QUIREMENTS.— 22 ‘‘(A) DISCLOSURE REQUIREMENTS.— 23 ‘‘(i) REGULATIONS.—Not later than 6 24 months after the date of enactment of this 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2874 IH paragraph, the Secretary, in cooperation 1 with the Secretaries of Health and Human 2 Services and the Treasury, shall issue reg- 3 ulations for carrying out this section, in- 4 cluding an explanation of documents that a 5 group health plan (or health insurance 6 issuer offering health insurance coverage in 7 connection with such a plan) shall disclose 8 in accordance with clause (ii), the process 9 governing the disclosure of such docu- 10 ments, and analyses that such plans and 11 issuers shall conduct in order to dem- 12 onstrate compliance with this section. 13 ‘‘(ii) DISCLOSURE REQUIREMENTS.— 14 The documents required to be disclosed by 15 a group health plan (or a health insurance 16 issuer offering health insurance coverage in 17 connection with such a plan) under clause 18 (i) shall include an annual report that de- 19 tails the specific analyses performed to en- 20 sure compliance of such plan or issuer with 21 this section, including any regulation pro- 22 mulgated pursuant to this section. At a 23 minimum, with respect to the application 24 of nonquantitative treatment limitations 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 2874 IH (in this paragraph referred to as ‘NQTLs’) 1 to benefits under the plan or coverage, 2 such report shall— 3 ‘‘(I) identify the specific factors 4 the plan or issuer used in performing 5 its NQTLs analysis; 6 ‘‘(II) identify and define the spe- 7 cific evidentiary standards relied on to 8 evaluate such factors; 9 ‘‘(III) describe how the evi- 10 dentiary standards are applied to each 11 service category for mental health 12 benefits, substance use disorder bene- 13 fits, medical benefits, and surgical 14 benefits; 15 ‘‘(IV) disclose the results of the 16 analyses of the specific evidentiary 17 standards in each service category; 18 and 19 ‘‘(V) disclose the specific findings 20 of the plan or issuer in each service 21 category and the conclusions reached 22 with respect to whether the processes, 23 strategies, evidentiary standards, or 24 other factors used in applying the 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 2874 IH NQTLs to mental health or substance 1 use disorder benefits are comparable 2 to, and applied no more stringently 3 than, the processes, strategies, evi- 4 dentiary standards, or other factors 5 used in applying the NQTLs to med- 6 ical and surgical benefits in the same 7 classification. 8 ‘‘(iii) GUIDANCE.—Not later than 6 9 months after the date of enactment of this 10 paragraph, the Secretary, in cooperation 11 with the Secretaries of Health and Human 12 Services and the Treasury, shall issue 13 guidance to group health plans (and health 14 insurance issuers offering health insurance 15 coverage in connection with such plans) on 16 how to satisfy the requirements of this sec- 17 tion, with respect to making information 18 available to current and potential partici- 19 pants and beneficiaries. Such information 20 shall include— 21 ‘‘(I) certificate of coverage docu- 22 ments and instruments under which 23 the plan or coverage involved is ad- 24 ministered and operated that specify, 25 VerDate Sep 11 2014 01:39 Jun 01, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2874.IH H2874 pamtmann on DSKBFK8HB2PROD with BILLS 13 •HR 2874 IH include, or refer to procedures, for- 1 mulas, and methodologies applied to 2 determine a participant’s or bene- 3 ficiary’s benefit under the plan or cov- 4 erage, regardless of whether such in- 5 formation is contained in a document 6 designated as the ‘plan document’; 7 and 8 ‘‘(II) a disclosure of how the plan 9 or issuer involved has provided that 10 processes, strategies, evidentiary stan- 11 dards, and other factors used in ap- 12 plying the NQTLs to mental health or 13 substance use disorder benefits are 14 comparable to, and applied no more 15 stringently than, the processes, strate- 16 gies, evidenti [Text truncated for display. 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