Strengthening Behavioral Health Parity Act

IB Union Calendar No. 575 116TH CONGRESS 2D SESSION H. R. 7539 [Report No. 116–692, Part I] To strengthen parity in mental health and substance use disorder benefits. IN THE HOUSE OF REPRESENTATIVES JULY 9, 2020 Mr. KENNEDY (for himself, Ms. PORTER, Mr. BILIRAKIS, and Mr. UPTON) introduced the following bill; which was referred to the Committee on En- ergy and Commerce, and in addition to the Committees on Ways and Means, and Education and Labor, for a period to be subsequently deter- mined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned DECEMBER 24, 2020 Additional sponsors: Mr. LUJA´N, Mr. SOTO, and Mr. FITZPATRICK DECEMBER 24, 2020 Reported from the Committee on Energy and Commerce with an amendment [Strike out all after the enacting clause and insert the part printed in italic] DECEMBER 24, 2020 Committees on Ways and Means and Education and Labor discharged; com- mitted to the Committee of the Whole House on the State of the Union and ordered to be printed [For text of introduced bill, see copy of bill as introduced on July 9, 2020] VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 7539 RH A BILL To strengthen parity in mental health and substance use disorder benefits. VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 7539 RH 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 ‘‘Strengthening Behav- 4 ioral Health Parity Act’’. 5 SEC. 2. STRENGTHENING PARITY IN MENTAL HEALTH AND 6 SUBSTANCE USE DISORDER BENEFITS. 7 (a) PHSA.— 8 (1) IN GENERAL.—Title XXVII of the Public 9 Health Service Act (42 U.S.C. 300gg–11 et seq.) is 10 amended by adding at the end the following new part: 11 ‘‘PART D—ADDITIONAL COVERAGE PROVISIONS 12 ‘‘SEC. 2799A–1. PARITY IN MENTAL HEALTH AND SUB- 13 STANCE USE DISORDER BENEFITS. 14 ‘‘(a) IN GENERAL.— 15 ‘‘(1) AGGREGATE LIFETIME LIMITS.—In the case 16 of a group health plan or a health insurance issuer 17 offering group or individual health insurance cov- 18 erage that provides both medical and surgical benefits 19 and mental health or substance use disorder bene- 20 fits— 21 ‘‘(A) NO LIFETIME LIMIT.—If the plan or 22 coverage does not include an aggregate lifetime 23 limit on substantially all medical and surgical 24 benefits, the plan or coverage may not impose 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 7539 RH any aggregate lifetime limit on mental health or 1 substance use disorder benefits. 2 ‘‘(B) LIFETIME LIMIT.—If the plan or cov- 3 erage includes an aggregate lifetime limit on 4 substantially all medical and surgical benefits 5 (in this paragraph referred to as the ‘applicable 6 lifetime limit’), the plan or coverage shall ei- 7 ther— 8 ‘‘(i) apply the applicable lifetime limit 9 both to the medical and surgical benefits to 10 which it otherwise would apply and to men- 11 tal health and substance use disorder bene- 12 fits and not distinguish in the application 13 of such limit between such medical and sur- 14 gical benefits and mental health and sub- 15 stance use disorder benefits; or 16 ‘‘(ii) not include any aggregate lifetime 17 limit on mental health or substance use dis- 18 order benefits that is less than the applica- 19 ble lifetime limit. 20 ‘‘(C) RULE IN CASE OF DIFFERENT LIM- 21 ITS.—In the case of a plan or coverage that is 22 not described in subparagraph (A) or (B) and 23 that includes no or different aggregate lifetime 24 limits on different categories of medical and sur- 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 7539 RH gical benefits, the Secretary shall establish rules 1 under which subparagraph (B) is applied to 2 such plan or coverage with respect to mental 3 health and substance use disorder benefits by 4 substituting for the applicable lifetime limit an 5 average aggregate lifetime limit that is computed 6 taking into account the weighted average of the 7 aggregate lifetime limits applicable to such cat- 8 egories. 9 ‘‘(2) ANNUAL LIMITS.—In the case of a group 10 health plan or a health insurance issuer offering 11 group or individual health insurance coverage that 12 provides both medical and surgical benefits and men- 13 tal health or substance use disorder benefits— 14 ‘‘(A) NO ANNUAL LIMIT.—If the plan or 15 coverage does not include an annual limit on 16 substantially all medical and surgical benefits, 17 the plan or coverage may not impose any annual 18 limit on mental health or substance use disorder 19 benefits. 20 ‘‘(B) ANNUAL LIMIT.—If the plan or cov- 21 erage includes an annual limit on substantially 22 all medical and surgical benefits (in this para- 23 graph referred to as the ‘applicable annual 24 limit’), the plan or coverage shall either— 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 7539 RH ‘‘(i) apply the applicable annual limit 1 both to medical and surgical benefits to 2 which it otherwise would apply and to men- 3 tal health and substance use disorder bene- 4 fits and not distinguish in the application 5 of such limit between such medical and sur- 6 gical benefits and mental health and sub- 7 stance use disorder benefits; or 8 ‘‘(ii) not include any annual limit on 9 mental health or substance use disorder ben- 10 efits that is less than the applicable annual 11 limit. 12 ‘‘(C) RULE IN CASE OF DIFFERENT LIM- 13 ITS.—In the case of a plan or coverage that is 14 not described in subparagraph (A) or (B) and 15 that includes no or different annual limits on 16 different categories of medical and surgical bene- 17 fits, the Secretary shall establish rules under 18 which subparagraph (B) is applied to such plan 19 or coverage with respect to mental health and 20 substance use disorder benefits by substituting 21 for the applicable annual limit an average an- 22 nual limit that is computed taking into account 23 the weighted average of the annual limits appli- 24 cable to such categories. 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 7539 RH ‘‘(3) FINANCIAL REQUIREMENTS AND TREATMENT 1 LIMITATIONS.— 2 ‘‘(A) IN GENERAL.—In the case of a group 3 health plan or a health insurance issuer offering 4 group or individual health insurance coverage 5 that provides both medical and surgical benefits 6 and mental health or substance use disorder ben- 7 efits, such plan or coverage shall ensure that— 8 ‘‘(i) the financial requirements appli- 9 cable to such mental health or substance use 10 disorder benefits are no more restrictive 11 than the predominant financial require- 12 ments applied to substantially all medical 13 and surgical benefits covered by the plan (or 14 coverage), and there are no separate cost 15 sharing requirements that are applicable 16 only with respect to mental health or sub- 17 stance use disorder benefits; and 18 ‘‘(ii) the treatment limitations applica- 19 ble to such mental health or substance use 20 disorder benefits are no more restrictive 21 than the predominant treatment limitations 22 applied to substantially all medical and 23 surgical benefits covered by the plan (or 24 coverage) and there are no separate treat- 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 7539 RH ment limitations that are applicable only 1 with respect to mental health or substance 2 use disorder benefits. 3 ‘‘(B) DEFINITIONS.—In this paragraph: 4 ‘‘(i) FINANCIAL REQUIREMENT.—The 5 term ‘financial requirement’ includes 6 deductibles, copayments, coinsurance, and 7 out-of-pocket expenses, but excludes an ag- 8 gregate lifetime limit and an annual limit 9 subject to paragraphs (1) and (2). 10 ‘‘(ii) PREDOMINANT.—A financial re- 11 quirement or treatment limit is considered 12 to be predominant if it is the most common 13 or frequent of such type of limit or require- 14 ment. 15 ‘‘(iii) TREATMENT LIMITATION.—The 16 term ‘treatment limitation’ includes limits 17 on the frequency of treatment, number of 18 visits, days of coverage, or other similar 19 limits on the scope or duration of treat- 20 ment. 21 ‘‘(4) AVAILABILITY OF PLAN INFORMATION.—The 22 criteria for medical necessity determinations made 23 under the plan with respect to mental health or sub- 24 stance use disorder benefits (or the health insurance 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 7539 RH coverage offered in connection with the plan with re- 1 spect to such benefits) shall be made available by the 2 plan administrator (or the health insurance issuer of- 3 fering such coverage) in accordance with regulations 4 to any current or potential participant, beneficiary, 5 or contracting provider upon request. The reason for 6 any denial under the plan (or coverage) of reimburse- 7 ment or payment for services with respect to mental 8 health or substance use disorder benefits in the case 9 of any participant or beneficiary shall, on request or 10 as otherwise required, be made available by the plan 11 administrator (or the health insurance issuer offering 12 such coverage) to the participant or beneficiary in ac- 13 cordance with regulations. 14 ‘‘(5) OUT-OF-NETWORK PROVIDERS.—In the case 15 of a plan or coverage that provides both medical and 16 surgical benefits and mental health or substance use 17 disorder benefits, if the plan or coverage provides cov- 18 erage for medical or surgical benefits provided by out- 19 of-network providers, the plan or coverage shall pro- 20 vide coverage for mental health or substance use dis- 21 order benefits provided by out-of-network providers in 22 a manner that is consistent with the requirements of 23 this section. 24 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 7539 RH ‘‘(6) COMPLIANCE PROGRAM GUIDANCE DOCU- 1 MENT.— 2 ‘‘(A) IN GENERAL.—Not later than 12 3 months after the date of enactment of the Help- 4 ing Families in Mental Health Crisis Reform 5 Act of 2016, the Secretary, the Secretary of 6 Labor, and the Secretary of the Treasury, in 7 consultation with the Inspector General of the 8 Department of Health and Human Services, the 9 Inspector General of the Department of Labor, 10 and the Inspector General of the Department of 11 the Treasury, shall issue a compliance program 12 guidance document to help improve compliance 13 with this section, section 712 of the Employee 14 Retirement Income Security Act of 1974, and 15 section 9812 of the Internal Revenue Code of 16 1986, as applicable. In carrying out this para- 17 graph, the Secretaries may take into consider- 18 ation the 2016 publication of the Department of 19 Health and Human Services and the Depart- 20 ment of Labor, entitled ‘Warning Signs - Plan 21 or Policy Non-Quantitative Treatment Limita- 22 tions (NQTLs) that Require Additional Analysis 23 to Determine Mental Health Parity Compliance’. 24 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 7539 RH ‘‘(B) EXAMPLES ILLUSTRATING COMPLIANCE 1 AND NONCOMPLIANCE.— 2 ‘‘(i) IN GENERAL.—The compliance 3 program guidance document required under 4 this paragraph shall provide illustrative, 5 de-identified examples (that do not disclose 6 any protected health information or indi- 7 vidually identifiable information) of pre- 8 vious findings of compliance and non- 9 compliance with this section, section 712 of 10 the Employee Retirement Income Security 11 Act of 1974, or section 9812 of the Internal 12 Revenue Code of 1986, as applicable, based 13 on investigations of violations of such sec- 14 tions, including— 15 ‘‘(I) examples illustrating require- 16 ments for information disclosures and 17 nonquantitative treatment limitations; 18 and 19 ‘‘(II) descriptions of the violations 20 uncovered during the course of such in- 21 vestigations. 22 ‘‘(ii) NONQUANTITATIVE TREATMENT 23 LIMITATIONS.—To the extent that any ex- 24 ample described in clause (i) involves a 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 7539 RH finding of compliance or noncompliance 1 with regard to any requirement for non- 2 quantitative treatment limitations, the ex- 3 ample shall provide sufficient detail to fully 4 explain such finding, including a full de- 5 scription of the criteria involved for approv- 6 ing medical and surgical benefits and the 7 criteria involved for approving mental 8 health and substance use disorder benefits. 9 ‘‘(iii) ACCESS TO ADDITIONAL INFOR- 10 MATION REGARDING COMPLIANCE.—In de- 11 veloping and issuing the compliance pro- 12 gram guidance document required under 13 this paragraph, the Secretaries specified in 14 subparagraph (A)— 15 ‘‘(I) shall enter into interagency 16 agreements with the Inspector General 17 of the Department of Health and 18 Human Services, the Inspector General 19 of the Department of Labor, and the 20 Inspector General of the Department of 21 the Treasury to share findings of com- 22 pliance and noncompliance with this 23 section, section 712 of the Employee 24 Retirement Income Security Act of 25 VerDate Sep 11 2014 18:13 Dec 26, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H7539.RH H7539 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 7539 RH 1974, or section 9812 of the Internal 1 Revenue Code of 1986, as applicable; 2 and 3 ‘‘(II) shall seek to enter into an 4 agreement with a State to share infor- 5 mation on findings of compliance and 6 noncompliance with this section, sec- 7 tion 712 of the Employee Retirement 8 Income Security Act of 1974, or section 9 9812 of the Internal Revenue Code of 10 1986, as applicable. 11 ‘‘(C) RECOMMENDATIONS.—The compliance 12 program guidance document shall include rec- 13 ommendations to advance compliance with this 14 section, section 712 of the [Text truncated for display. 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