Mental Health Parity and Coverage in Private Health Insurance: Federal Requirements

Mental Health Parity and Coverage in Private Health Insurance: Federal Requirements

Mental Health Parity and Coverage in Private
Health Insurance: Federal Requirements
February 1, 2023
Congressional Research Service
https://crsreports.congress.gov
R47402

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Mental Health Parity and Coverage in Private Health Insurance: Federal Requirements

Contents
Introduction ..................................................................................................................................... 1
Legislative History .......................................................................................................................... 2
Benefit Coverage Requirements ...................................................................................................... 2
Coverage of the Essential Health Benefits ................................................................................ 3
Coverage of Certain Preventive Services Without Cost Sharing .............................................. 4
Mental Health Parity Requirements ................................................................................................ 4
Parity Law Definitions of MH/SUD Benefits ........................................................................... 4
Parity Requirements Related to Coverage Limits and Benefit Classifications ......................... 5
Parity Requirements and Parity Tests ................................................................................. 5
Coverage of MH/SUD Benefits in the Six Classifications ................................................. 7
Parity Requirements Related to Disclosure and Documentation .............................................. 7
Information Disclosure to Enrollees and Others ................................................................. 7
Annual NQTL Comparative Analyses ................................................................................ 8
Parity Requirements Related to Oversight and Reporting ........................................................ 8
Federal Oversight of Parity Requirements .......................................................................... 8
Required Federal Reports, Rulemaking, Guidance, and Other Activities ........................... 8
Grants to States for Parity Enforcement ........................................................................... 10
Plans Subject to Coverage and Parity Requirements ..................................................................... 10
Certain Other Types of Plans .................................................................................................. 12

Tables
Table 1. Parity Requirements Related to Coverage Limits (Private Health Insurance) .................. 6
Table 2. Applicability of Mental Health Parity and Selected Benefit Coverage
Requirements to Specified Types of Private Health Insurance Plans .......................................... 11

Table A-1. Legislative History of Mental Health Parity and Selected Benefit Coverage
Requirements Applicable to Private Health Insurance Plans ..................................................... 13

Appendixes
Appendix. Legislative History Summary Table ............................................................................ 13

Contacts
Author Information ........................................................................................................................ 14

Mental Health Parity and Coverage in Private Health Insurance: Federal Requirements

Introduction
Mental health conditions and substance use disorders are common in the United States. According
to estimates from the Substance Abuse and Mental Health Services Administration (SAMHSA)
derived from the 2021 National Survey on Drug Use and Health, 82.5 million adults in the United
States reported having had either a mental health condition or a substance use disorder in 2021.
Participation in treatment for these conditions is also common. In 2021, 46.5 million adults
reported that they had received mental health treatment and 4 million adults reported that they
had received substance use treatment in the past year.1
Given that most people in the United States have private health insurance,2 there is considerable
congressional interest in understanding private coverage of mental health and substance use
disorder (MH/SUD) benefits, including diagnostic and treatment services. This report explains
federal requirements related to coverage of MH/SUD benefits, as well as federal mental health
parity requirements, with respect to private health insurance.3
 Benefit coverage requirements generally address whether a plan must cover certain
health care services or items. The two federal provisions most relevant to private
health insurance coverage of MH/SUD benefits are the requirements that (1) certain
plans cover a set of essential health benefits (EHB) and (2) most plans cover certain
preventive services without cost sharing. For example, per EHB requirements, plans
must offer a core package of 10 categories of health benefits, one of which is “mental
health and substance use disorder services, including behavioral health treatment.”4
 Mental health parity requirements do not mandate that plans cover MH/SUD
benefits. However, when an applicable plan (i.e., a plan otherwise subject to parity
law) does cover MH/SUD benefits and medical/surgical (M/S) benefits, parity law
generally prohibits the imposition of more restrictive limitations on MH/SUD
benefits than on M/S benefits.
This report explains these MH/SUD benefit coverage and parity requirements, as well as the
types of private health insurance plans subject to such requirements. It includes a brief review of
relevant legislative history—including changes enacted in December 2022—and a discussion and
examples of required federal agency activities (e.g., oversight and reporting).
The report’s focus is federal private health insurance requirements; it does not compare state
requirements or actual plan variations in coverage. This report also does not address mental
health benefits in public programs such as Medicare and Medicaid.

1 Estimates in this paragraph are from pp. 41, 58, and 51, respectively, of Substance Abuse and Mental Health Services
Administration (SAMHSA), Key Substance Use and Mental Health Indicators in the United States: Results from the
2021 National Survey on Drug Use and Health, January 2023, at https://www.samhsa.gov/data/report/2021-nsduh-
annual-national-report. See the SAMHSA report for additional details, other estimates, and data sources and
methodology. These data are not specific to individuals with private health insurance.
2 See CRS In Focus IF10830, U.S. Health Care Coverage and Spending, for overviews of different sources of health
coverage in the United States, including private health insurance, Medicare, and Medicaid.
3 Mental health and substance use are often collectively referenced as behavioral health, but this report generally does
not use this term, given specific references in relevant private health insurance requirements to mental health and/or
substance use conditions and/or benefits.
4 42 U.S.C. §18022(b)(1)(E).
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Legislative History
EHB and preventive services coverage requirements were enacted in 2010 via the Patient
Protection and Affordable Care Act (ACA, as amended).5
The first federal mental health parity law, the Mental Health Parity Act of 1996 (MHPA), applied
limited parity requirements to certain group health plans.6 The Paul Wellstone and Pete Domenici
Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) expanded on MHPA’s
private health insurance parity requirements. Five laws have since amended MHPAEA and
federal parity law with regard to private health insurance: the ACA in 2010; the Helping Families
in Mental Health Crisis Reform Act of 2016 (Division B of the 21st Century Cures Act of 2016, or
the Cures Act); the SUPPORT for Patients and Communities Act (SUPPORT Act), enacted in
2018; the Consolidated Appropriations Act, 2021 (CAA 2021), enacted in 2020; and the
Consolidated Appropriations Act, 2023 (CAA 2023), enacted in 2022.
Over time, the legislative changes have increased the scope of parity law to include substance use
disorder benefits in addition to mental health benefits; expanded the required areas of parity and
addressed classification of benefits; expanded federal parity law’s applicability to most types of
private health insurance plans; and specified that if an applicable plan covers eating disorder
treatment, such coverage is subject to parity requirements. In addition, multiple changes have
aimed to improve plans’ understanding of and compliance with parity requirements and increase
federal enforcement of and reporting on parity requirements. Although MHPAEA has been
amended multiple times, the body of federal parity law is still commonly called MHPAEA.7
In general, the Departments of Health and Human Services (HHS), Labor, and the Treasury (in
this report, the Tri-Agencies) coordinate enforcement with respect to federal private health
insurance requirements.
Benefit Coverage Requirements
MH/SUD benefits may include services, such as office visits or hospital stays, or items, such as
prescription medications. MH/SUD benefits may be furnished by a range of providers (e.g.,
psychiatrists, psychologists, psychiatric nurses, licensed professional counselors) and via various
settings and modalities (e.g., inpatient, outpatient, telehealth).
The two federal provisions most relevant to private health insurance coverage of MH/SUD
benefits are the requirements that (1) certain plans cover a set of EHB and (2) most plans cover
certain preventive services without cost sharing.8 These requirements are explained below (see

5 See Table A-1 for full citations of and relevant details regarding all legislation in this section.
6 See “Plans Subject to Coverage and Parity Requirements” for more information about plan types and applicability of
parity law.
7 Most of the private health insurance parity requirements from the above laws are codified as similar provisions in
three separate federal statutes: the Public Health Service Act (PHSA) Section 2726, at 42 U.S.C. §300gg-26; the
Employee Retirement Income Security Act (ERISA) Section 712, at 29 U.S.C. §1185a; and the Internal Revenue Code
(IRC) Section 9812, at 26 U.S.C. §9812. This report generally uses the PHSA citations.
8 Other types of federal requirements—those not specific to mental health and substance use disorder (MH/SUD)
benefit coverage or parity—also may be relevant. See, for example, “Requirements Related to Health Care Providers”
in CRS Report R45146, Federal Requirements on Private Health Insurance Plans, and network adequacy requirements
in the “Qualified Health Plans” section of CRS Report R44065, Overview of Health Insurance Exchanges.
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“Plans Subject to Coverage and Parity Requirements” regarding the requirements’ applicability to
different types of private plans).
There is no federal requirement that all private health insurance plans cover a set of specific
MH/SUD benefits (or M/S benefits), beyond what is described below.
Coverage of the Essential Health Benefits
Certain plans must cover a core package of 10 categories of health care benefits, known as the
essential health benefits.9 One category of EHB is “mental health and substance use disorder
services, including behavioral health treatment.”10 Other EHB categories also may include
benefits relevant to MH/SUD.11 For example, current EHB prescription drug coverage regulations
effectively require applicable plans (those subject to EHB requirements) to cover at least one
form of naloxone, a drug that can treat opioid overdoses.12
States, rather than the federal government, generally specify the benefit coverage requirements
within the EHB categories. Current regulation allows each state to select an EHB benchmark
plan, within certain parameters. The benchmark plan serves as a reference for applicable plans in
that state, which must provide EHB coverage that is “substantially equal” to such coverage in the
benchmark plan, as specified in regulations.13 Because states select their own EHB benchmark
plans, EHB coverage may vary considerably from state to state.14
Federal law permits consumer cost sharing (e.g., deductibles, coinsurance, and co-payments, up
to an annual out-of-pocket limit) for most categories of EHB. Coverage and cost sharing for EHB
furnished by out-of-network providers may vary, subject to applicable federal and state
requirements.15 Certain federal limits on cost sharing, such as a prohibition on lifetime and annual
coverage limits, apply to the EHB.16

9 42 U.S.C. §300gg-6; 42 U.S.C. §18022; 45 C.F.R. §156.115.
10 42 U.S.C. §18022(b)(1)(E).
11 The 10 essential health benefit (EHB) categories are (1) ambulatory patient services; (2) emergency services; (3)
hospitalization; (4) maternity and newborn care; (5) mental health and substance use disorder services, including
behavioral health treatment; (6) prescription drugs; (7) rehabilitative and habilitative services and devices; (8)
laboratory services; (9) preventive and wellness services and chronic disease management; and (10) pediatric services,
including oral and vision care.
12 Department of Health and Human Services (HHS), “Patient Protection and Affordable Care Act; HHS Notice of
Benefit and Payment Parameters for 2019,” 83 Federal Register 16930, April 17, 2018. See footnote 64, referencing 45
C.F.R. §156.122(a)(1) and other sections of regulation.
13 45 C.F.R. §156.115(a)(1).
14 For more information on the process for defining the EHB, and for links to state benchmark plans, see Centers for
Medicare & Medicaid Services (CMS), Center for Consumer Information and Insurance Oversight (CCIIO),
“Information on Essential Health Benefits (EHB) Benchmark Plans,” at https://www.cms.gov/cciio/resources/data-
resources/ehb.
15 In general, beginning with each plan year, an enrollee pays 100% of costs for covered health care benefits until the
costs meet a certain threshold amount called a deductible. Exceptions apply. After that, the enrollee pays coinsurance (a
percentage amount) or co-payments (a flat amount) for covered benefits, and the plan pays the rest. If an enrollee’s
spending meets an annual out-of-pocket limit, the plan generally will pay 100% of covered costs for the remainder of
the plan year. See CRS Report RL32237, Health Insurance: A Primer, for further explanations of cost sharing,
including when benefits are furnished by out-of-network providers.
16 Plans are prohibited from setting lifetime or annual dollar limits on their coverage of the EHB, generally whether
provided in network or out of network. This prohibition applies to individual and fully insured small-group plans,
which are subject to EHB requirements. It also applies to large-group and self-insured plans; because these plans are
not required to cover EHB, regulations address how the plans may define their benefits for purposes of this
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Coverage of Certain Preventive Services Without Cost Sharing
There is also a federal requirement that most plans cover specified preventive services and items
without cost sharing.17 These services and items include, at a minimum, four categories of
preventive benefits recommended by specified entities, such as the United States Preventive
Services Task Force (USPSTF). The recommendations include various MH/SUD screenings for
specified populations, such as men and/or women of certain ages, pregnant and postpartum
persons, adolescents, and children.18
The recommended benefits are meant to be preventive in nature—that is, provided to specified
populations without regard to the presence of a diagnosis or particular symptoms. Preventive
benefits include, for example, depression screenings for the general adult population as
recommended by the USPSTF. If an individual has symptoms and needs a certain screening (e.g.,
a depression screening) for purposes of diagnosis, that screening may not necessarily be covered
without cost sharing per this federal requirement. The same is true if a screening identifies a
condition that needs further treatment. However, the plan may cover diagnostic screenings and
treatments (with or without cost sharing), including due to other applicable federal requirements
(e.g., EHB) or state requirements.
Mental Health Parity Requirements
Federal parity law does not require private health insurance plans to cover MH/SUD benefits,
when such coverage is not otherwise required by federal or state law. However, when an
applicable plan covers both MH/SUD benefits and M/S benefits,19 federal parity law generally
prohibits the imposition of more restrictive limits on MH/SUD benefits than on M/S benefits, as
specified below and summarized in Table 1. Parity law also includes information disclosure and
other requirements discussed later in this section.
Although this body of law is commonly referred to as mental health parity, and although initial
parity law did apply only to mental health benefits, current parity law applies to both mental
health and substance use disorder benefits (to the extent they are covered).
Parity Law Definitions of MH/SUD Benefits
The question of whether a covered benefit is considered an MH/SUD benefit can have
implications for the applicability of parity requirements. Within mental health parity statute, the
definition of mental health benefits is “benefits with respect to services for mental health
conditions, as defined under the terms of the plan and in accordance with applicable Federal and
State law” (emphasis added).20 Similarly, the definition of substance use disorder benefits
references benefits with respect to services for substance use disorders. The terms mental health

requirement. See CRS Report R45146, Federal Requirements on Private Health Insurance Plans, for additional
information on this and other federal requirements relevant to consumer cost sharing.
17 42 U.S.C. §300gg-13; 45 C.F.R. §147.130.
18 For the preventive benefits that must be covered (1) for all adults, (2) additionally for women, and (3) for children
and adolescents, from across the four categories of recommendations, see HealthCare.gov, “Preventive Health
Services,” at https://www.healthcare.gov/preventive-care-benefits/. For more information on the coverage requirement
and recommendation categories, see CRS Report R45146, Federal Requirements on Private Health Insurance Plans.
19 Regarding applicable plans, see “Plans Subject to Coverage and Parity Requirements.”
20 See 42 U.S.C. §300gg-26(e) for these definitions of mental health benefits and substance use disorder benefits.
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conditions and substance use disorders are not further defined in mental health parity statutory
language.
In parity regulations, the definitions of mental health benefits and substance use disorder benefits
include additional clarifications. For example, the regulatory definition of mental health benefits
states that “any condition defined by the plan or coverage as being or as not being a mental health
condition must be defined to be consistent with generally recognized independent standards of
current medical practice (for example, the most current version of the Diagnostic and Statistical
Manual of Mental Disorders (DSM), the most current version of the ICD, or State guidelines).”21
In general, parity law does not further specify that any particular type of benefits be considered
MH/SUD benefits. However, a provision of the Cures Act specified that parity requirements
apply to eating disorder benefits, if these benefits are covered.22 (See also the discussion below of
“Coverage of MH/SUD Benefits in the Six Classifications.”)
Parity Requirements Related to Coverage Limits and Benefit
Classifications
Parity Requirements and Parity Tests
Statutory and regulatory parity requirements focus primarily on whether and how plans may
impose certain types of coverage limits on their MH/SUD benefits, within six classifications of
benefits. Parity law provides different tests to determine compliance with the various
requirements.
Parity requirements apply to the following types of coverage limits:23
 Aggregate Lifetime Limits and Annual Limits: Dollar limits on plans’
coverage of benefits
 Financial Requirements: Consumer cost-sharing requirements for covered
benefits (e.g., co-payments)
 Quantitative Treatment Limitations (QTLs): Numeric benefit coverage limits
(e.g., number of days or visits covered)
 Non-quantitative Treatment Limitations (NQTLs): Non-numeric benefit
coverage limits (e.g., utilization review requirements)
The above are all types of coverage limits that a plan may impose on any benefit it covers (not
just MH/SUD), subject to federal and state law. For example, a plan may specify that inpatient
hospital stays for certain conditions are covered only when the plan has provided preauthorization
to the enrollee or provider; this example would be a type of NQTL.
Parity requirements related to these coverage limits apply in each of six classifications of benefits
that parity regulations have established: (1) in-network inpatient, (2) out-of-network inpatient, (3)

21 45 C.F.R. §146.136(a). The ICD is the Internal Classification of Diseases. Also see the Department of Labor (DOL),
HHS, and Department of the Treasury, “Self-Compliance Tool for the Mental Health Parity and Addiction Equity Act
(MHPAEA),” updated October 2020, at https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/
mental-health-parity/self-compliance-tool.pdf (hereinafter referred to as Tri-Agency Self-Compliance Tool 2020).
22 42 U.S.C. §300gg-26, Statutory Note, “Clarification of Existing Parity Rules.”
23 42 U.S.C. §300gg-26(a)(1, 2, 3) and 45 C.F.R. §146.136(a-c).
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in-network outpatient, (4) out-of-network outpatient, (5) emergency care, and (6) prescription
drugs.24
In short, parity statute and regulations prohibit plans from imposing more restrictive limits on
MH/SUD benefits than on M/S benefits, in terms of each type of coverage limit listed above,
within each of these benefit classes. For example, a plan must ensure its NQTL requirements are
no more restrictive for MH/SUD benefits than for M/S benefits for in-network inpatient services
and, separately, for emergency care.25
The tests for determining parity compliance are specified in statute and regulation. For example,
there is one test for quantitative parity requirements (including financial requirements and QTLs),
a different test for NQTL parity requirements, and another test for aggregate lifetime and annual
limits. Table 1 summarizes all of the parity requirements and their parity tests.
Table 1. Parity Requirements Related to Coverage Limits (Private Health Insurance)
Coverage Limits
Definition of Coverage Limit
Test for Determining Parity
Subject to Parity Lawa
in Parity Law
Compliance
Aggregate Lifetime
Dol ar limitations on the “total amount” the If a plan does not include aggregate lifetime
Limits
plan wil pay for specified benefits for a
or annual limits on substantially all medical/
“coverage unit” (e.g., an enrol ee or family). surgical (M/S) benefits, it may not impose
any such limits on mental health/substance
Annual Limits
Dol ar limitations on the total amount the
use disorder (MH/SUD) benefits.b
plan wil pay for specified benefits “in a 12-
month period” for a coverage unit.
Financial
Cost-sharing requirements for coverage
A plan may not impose a financial
Requirements
units such as co-payments and coinsurance, requirement or QTL on MH/SUD
and “cumulative financial requirements” such benefits that is “more restrictive than the
as deductibles and out-of-pocket maximums. predominant financial requirement or
treatment limitation of that type applied
Quantitative
Numeric benefit coverage restrictions or
to substantially all [M/S] benefits” in the
Treatment
plan attributes, such as limits on the number same classification.c
Limitations (QTLs)
of days or visits covered.
Non-Quantitative
Non-numeric benefit coverage restrictions
A plan may not impose an NQTL on
Treatment
or plan attributes. Examples of NQTLs
MH/SUD benefits unless “any processes,
Limitations (NQTLs)
include “medical management standards
strategies, evidentiary standards, or other
(e.g., limits based on medical necessity or if a factors” used in applying the NQTL to
treatment is experimental)”; drug
MH/SUD benefits are “comparable to, and
formularies; step therapy requirements; and are applied no more stringently than,” the
“standards for provider admission to
processes, etc., used in applying the
participate in a network, including
limitation with respect to M/S benefits in
reimbursement rates.”
the same classification.d
Source: CRS analysis of statutory and regulatory provisions at 42 U.S.C. §300gg-26 and 45 C.F.R. §146.136.
Quoted language in the table is from these provisions. For example, see the definitions of aggregate lifetime limits
and annual limits at 42 U.S.C. §300gg-26(e), and see examples of NQTLs at 45 C.F.R. §146.136(c)(4).
Notes: Certain emphases added (e.g., predominant and substantially all).
a. As specified, these coverage limits for MH/SUD benefits must be no more restrictive than such coverage
limits for M/S benefits, within each of six benefit classifications in which MH/SUD benefits are covered: (1)
in-network inpatient, (2) out-of-network inpatient, (3) in-network outpatient, (4) out-of-network
outpatient, (5) emergency care, and (6) pharmacy.

24 45 C.F.R. §146.136(c)(2)(ii). Also see 42 U.S.C. §300gg-26(a)(4) regarding coverage of benefits furnished by out-
of-network providers.
25 See Tri-Agency Self-Compliance Tool 2020, Section B regarding the benefit classifications, including determining
which class a benefit (such as certain “intermediate” services) belongs in and allowable subclassifications (e.g.,
outpatient office visits versus all other outpatient services).
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Mental Health Parity and Coverage in Private Health Insurance: Federal Requirements

b. Statutory and regulatory parity language also provide for situations in which a plan does include an aggregate
lifetime or annual limit on substantially all M/S benefits or on different categories of benefits. However, given
other federal provisions that prohibit most plans from imposing lifetime or annual limits on coverage (as
specified by such provisions), parity regulations and guidance acknowledge that such situations are rare. See
45 C.F.R. §146.136(b) and Tri-Agency Self-Compliance Tool 2020, Section C.
c. Regulations apply numerical standards to the terms predominant and substantially all, and establish a two-step
mathematical test by which applicable plans can determine allowable restrictions on MH/SUD benefits in
each classification. To explain the two-step test via an example, an applicable plan may impose a deductible
on its in-network inpatient MH/SUD benefits only if it also imposes a deductible on at least two-thirds (i.e.,
substantially all) of its in-network inpatient M/S benefits. If that is the case, the deductible for such MH/SUD
benefits may not be higher than the deductible applied to more than half (i.e., the predominant) of the in-
network inpatient M/S benefits. For further details, see 45 C.F.R. §146.136(c)(3)(i)(A), 45 C.F.R.
§146.136(c)(3)(i)(B)(1), and the Tri-Agency Self-Compliance Tool 2020, Sections D and E.
d. For example, what are the standards by which a plan applied a medical necessity determination to MH/SUD
benefits in a class, as compared with M/S benefits in that class? Or, what are the factors a plan used to set
its provider reimbursement rates and otherwise establish its provider network for MH/SUD providers as
compared with M/S providers? MH/SUD provider reimbursement rates need not be the same as M/S
provider reimbursement rates, nor does parity law require any particular MH/SUD reimbursement rates,
but parity guidance provides various “warning signs” to plans about provider reimbursement rates and
related topics (see Tri-Agency Self-Compliance Tool 2020 Appendix II). For more information about NQTL
parity requirements, see 45 C.F.R. §146.136(c)(4) and the Tri-Agency Self-Compliance Tool 2020, Section F.
Coverage of MH/SUD Benefits in the Six Classifications
Besides their relevance to the specified coverage limits, the six classifications of benefits also are
related to a coverage requirement for plans that are subject to parity law. Although parity law
does not include a benefit coverage mandate in general, it does provide that if an applicable plan
covers MH/SUD benefits in any of the six classifications, the plan must cover MH/SUD benefits
in all of the classes in which it also covers M/S benefits.26
This does not necessarily require plans to cover particular MH/SUD benefits within a class, but it
means a plan cannot exclude coverage of a whole class of MH/SUD benefits if the plan covers
M/S benefits in that class. For example, if a plan provides any coverage of out-of-network
outpatient M/S services, it also must cover some out-of-network outpatient MH/SUD services. By
contrast, if a plan does not cover any M/S benefits in a class (which may be the case for inpatient
or outpatient out-of-network benefits), the plan does not have to cover any MH/SUD benefits in
that class.27
Parity Requirements Related to Disclosure and Documentation
Information Disclosure to Enrollees and Others
Applicable plans are required to disclose certain information related to medical necessity
determinations and/or denials of payment, with respect to MH/SUD benefits, upon request by
specified parties. Per parity statutory and regulatory provisions,28

26 45 C.F.R. §146.136(c)(2)(ii)(A). Also see 42 U.S.C. §300gg-26(a)(5), specific to coverage of MH/SUD benefits
provided out-of-network, if medical/surgical benefits are covered out-of-network.
27 See the Tri-Agency Self-Compliance Tool 2020, Section B, for further discussion and examples of this requirement,
including as related to coverage of medication-assisted treatment for opioid use disorder.
28 See 42 U.S.C. §300gg-26(a)(4) for requirements listed in both bullets, including quoted language. Also see 45 C.F.R.
§146.136(d). As discussed in such parity regulations and in the Tri-Agency Self-Compliance Tool 2020, Section G,
there are also relevant federal requirements not specific to parity (e.g., 29 U.S.C. §1133 and 29 C.F.R. §2560.503-1,
regarding claims procedures).
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 “The criteria for medical necessity determinations” made with respect to
MH/SUD benefits must be disclosed to “any current or potential participant,
beneficiary, or contracting provider upon request.”
 “The reason for any denial ... of reimbursement or payment for services”
with respect to MH/SUD benefits, including applicable medical necessity criteria
as applied to that enrollee, must be disclosed to any participant or beneficiary
who receives such a denial.
Annual NQTL Comparative Analyses
As discussed above, federal requirement prohibit applicable plans from imposing more restrictive
NQTLs (and other specified types of limits) on MH/SUD benefits than on M/S benefits.
Per the CAA 2021, plans also are required to annually “perform and document comparative
analyses of the design and application of NQTLs” and to make such analyses available to the Tri-
agency Secretaries or applicable state authorities, upon request (see “Federal Oversight of Parity
Requirements” section below).29 These analyses must include statutorily specified information,
such as a description of all MH/SUD and M/S benefits to which each NQTL applies in each
benefit classification, and demonstrations of compliance with NQTL parity standards.
Parity Requirements Related to Oversight and Reporting
Parity law includes oversight and reporting requirements for federal agencies. There are also
newly authorized grants to states for parity enforcement.
Federal Oversight of Parity Requirements30
The Tri-Agency Secretaries must annually request and review at least 20 of the NQTL analyses
described above from plans that “involve potential [parity] violations” or complaints of
noncompliance, or in “any other instances in which the Secretary determines appropriate.”31
Required follow-up actions are specified if more information is needed or parity violations are
found.
In addition, per the Cures Act, if the Tri-Agency Secretaries determine a plan has violated parity
requirements five times, the Secretaries must audit plan documents in the following plan year.32
Required Federal Reports, Rulemaking, Guidance, and Other Activities
The Tri-Agencies are required to submit annual and biannual reports to Congress on issues related
to parity compliance, including the NQTL analyses discussed above.33 Parity law also includes
requirements for agency guidance (including a “compliance program guidance document” and
“additional guidance” as specified), and other activities (e.g., a public meeting of stakeholders “to

29 42 U.S.C. §300gg-26(a)(8)(A).
30 For additional information about federal enforcement of private health insurance requirements in general, see CRS
Report R46637, Federal Private Health Insurance Market Reforms: Legal Framework and Enforcement.
31 42 U.S.C. §300gg-26(a)(8)(B).
32 42 U.S.C. §300gg-26, Statutory Note, “Improving Compliance.”
33 As required biannually (beginning in 2012) by MHPAEA: 29 U.S.C. §1185a(f). As required annually (beginning
December 2021) by the CAA 2021: 42 U.S.C. §300gg-26(a)(8)(B)(iv). The Cures Act, as amended by the SUPPORT
Act, also required annual reporting for five years on federal investigations into parity compliance. See Table A-1.
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produce an action plan for improved federal and state coordination” related to enforcement of
MHPAEA and state parity laws).34 MHPAEA required Tri-Agency rulemaking on parity
requirements.35 Examples of reports, guidance, and other deliverables created to fulfill these
requirements include the following: 36
 A January 2022 Tri-Agency report to Congress meets several agency reporting
requirements for the year, including the Departments’ first required review of
plans’ NQTL comparative analyses and discussions of other compliance issues.37
 A Self-Compliance Tool (i.e., the compliance program guidance document), last
updated in October 2020, is meant to help applicable plans, state regulators, and
other stakeholders understand and comply with parity requirements.38
 Several Tri-Agency FAQs, issued between June 2017 and September 2019, are
examples of the required additional guidance.39 They addressed information
disclosure requirements, NQTL parity requirements, and required agency
activities (e.g., the stakeholder meeting and action plan).
 A November 2013 final rule implemented MHPAEA and ACA parity
requirements.40
In addition, certain parity provisions have required Government Accountability Office (GAO)
reports to Congress. GAO has published multiple reports on mental health parity and mental
health access in private health insurance, for example in 2011,41 2019,42 2021,43 and 2022.44

34 See 42 U.S.C. §300gg-26(a)(6) regarding the “compliance program guidance document”; 42 U.S.C. §300gg-26(a)(7)
regarding “additional guidance”; and Cures Act, Division B, Title XIII, §13002 regarding the action plan.
35 MHPAEA, Division C, Title V, Subtitle B, §512(d).
36 See additional resources, including prior-year reports to Congress, at DOL and HHS parity webpages:
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-and-substance-use-disorder-parity; and
https://www.cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/mhpaea_factsheet.
37 DOL, HHS, and the Treasury, Realizing Parity, Reducing Stigma, and Raising Awareness: Increasing Access to
Mental Health and Substance Use Disorder Coverage, 2022 MHPAEA Report to Congress, January 2022, at
https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/report-to-congress-2022-
realizing-parity-reducing-stigma-and-raising-awareness.pdf.
38 Tri-Agency Compliance Tool 2020, as cited at footnote 21.
39 Tri-Agency FAQs 38, 39, and related documents (June 2017-September 2019), at CMS, CCIIO, “Fact Sheets and
Frequently Asked Questions (FAQs),” at https://www.cms.gov/cciio/resources/fact-sheets-and-
faqs#Mental_Health_Parity. Also see Tri-Agency FAQ 45 (April 2021) on the NQTL comparative analyses.
40 Treasury, Internal Revenue Service; DOL, Employee Benefits Security Administration; and HHS, CMS, “Final
Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008; Technical
Amendment to External Review for Multi-State Plan Program,” 78 Federal Register 68239, November 13, 2013.
41 Government Accountability Office (GAO), Mental Health and Substance Use: Employers’ Insurance Coverage
Maintained or Enhanced Since Parity Act, But Effect of Coverage on Enrollees Varied, GAO-12-63, November 30,
2011, at https://www.gao.gov/products/gao-12-63.
42 GAO, Mental Health and Substance Use: State and Federal Oversight of Compliance with Parity Requirements
Varies, GAO-20-150, December 13, 2019, at https://www.gao.gov/products/gao-20-150.
43 GAO, Behavioral Health: Patient Access, Provider Claims Payment, and the Effects of the COVID-19 Pandemic,
GAO-21-437R, March 31, 2021, at https://www.gao.gov/products/gao-21-437r.
44 GAO, Mental Health Care: Access Challenges for Covered Consumers and Relevant Federal Efforts, GAO-22-
104597, March 30, 2022, at https://www.gao.gov/products/gao-22-104597.
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Grants to States for Parity Enforcement
The CAA 2023 established new HHS grants for states “to enforce and ensure compliance with”
mental health parity requirements.45 The act authorized to be appropriated $10 million for each of
the first five fiscal years beginning after the date of enactment, to remain available until
expended, for purposes of awarding these grants. To be eligible for the grants, states must agree to
request and review (an unspecified number of) the NQTL comparative analyses required of plans,
as described above. The HHS Secretary is otherwise required to specify the timing, manner, and
information requirements for state applications for the grants.
Plans Subject to Coverage and Parity Requirements
Broadly, private health insurance includes group plans of several types and nongroup plans.
Federal private health insurance requirements may apply to some or all such plans.46
Group plans largely refer to health benefits provided to employees (and their dependents) by
employers that sponsor such benefits. Employers and other group health plan sponsors may
purchase coverage from a state-licensed insurer and offer it to their group (i.e., they may fully
insure). Sponsors may instead finance coverage themselves (i.e., they may self-insure). Fully
insured plans may be purchased in the large- or small-group markets. For purposes of private
health insurance regulation, a small group is typically defined as a group of up to 50 individuals
(e.g., employees) and a large group is typically defined as one with 51 or more individuals.
Consumers purchase nongroup plans directly from an insurer. In general, nongroup plans are
fully insured. The nongroup market (also called the individual market) and the small-group
market include plans sold on and off the health insurance exchanges—the individual exchanges
and Small Business Health Options Program exchanges, respectively.47
Federal private health insurance requirements generally apply to some or all of the following
types of plans: (1) fully insured group plans offered by large employers (i.e., large-group plans),
(2) fully insured group plans offered by small employers (i.e., small-group plans), (3) self-insured
group plans, and (4) nongroup plans. Federal requirements on self-insured group plans generally
do not depend on group size; however, due to certain details regarding parity requirements, this
report specifies the following variations: (3a) self-insured group plans offered by large employers
and (3b) self-insured group plans offered by small employers.
Table 2 summarizes the applicability of EHB, preventive services, and mental health parity
requirements to such plans. Additional discussion of parity applicability follows the table.

45 42 U.S.C. §300gg-94(c)(3).
46 For simplicity, this report refers to requirements on private health insurance plans, but such requirements are
generally on the health insurance issuers that sell plans or the sponsors (such as employers) that offer plans.
47 The exchanges are government-administered marketplaces in which consumers and small businesses can purchase
private health insurance offered by participating insurers. Plans sold in the individual and Small Business Health
Options Program exchanges must meet the requirements applicable to the nongroup and small-group markets,
respectively. Additional requirements apply only to exchange plans. For more information, see CRS Report R44065,
Overview of Health Insurance Exchanges.
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Table 2. Applicability of Mental Health Parity and Selected Benefit Coverage
Requirements to Specified Types of Private Health Insurance Plans
Essential Health
Preventive Services
Mental Health
Type of Plan
Benefits (EHB)
Without Cost Sharing
Paritya
Ful y Insured Group Plan (Large Employer)
NA
√
√ b
Ful y Insured Group Plan (Small Employer)c
√
√
√ d
Self-Insured Group Plan (Large Employer)
NA
√
√ b
Self-Insured Group Plan (Small Employer)
NA
√
NA
Nongroup Planc
√
√
√
Sources: CRS analysis of statutory and regulatory provisions. EHB: 42 U.S.C. §300gg-6; 42 U.S.C. §18022; 45
C.F.R. §156.115. Preventive Services: 42 U.S.C. §300gg-13; 45 C.F.R. §147.130. Parity: 42 U.S.C. §300gg-26,
45 C.F.R. §146.136.
Notes: NA = not applicable. See “Plans Subject to Coverage and Parity Requirements” regarding the plan types
listed above.
a. Specified plans are subject to parity requirements if they cover mental health/substance use disorder
benefits and medical/surgical benefits.
b. These plans can request time-limited parity exemptions if implementation would increase their costs, as
specified in law. See footnote 49 for details.
c. Nongroup and small-group plans (i.e., ful y insured group plans offered by small employers) include those
sold on and off the exchanges.
d. These plans are subject to parity primarily because of the incorporation of parity into EHB requirements.
As shown above, most types of private health insurance plans are subject to federal parity laws if
they cover MH/SUD benefits and unless otherwise exempted. Small, self-insured group plans are
exempt from parity requirements.48 Certain plans also may qualify for an increased cost
exemption under parity law (i.e., plans for which implementing parity would result in increased
costs above specified thresholds).49
Although the parity exemption for small employers initially applied to both self-insured and fully
insured plans, plans subject to EHB requirements also are subject to parity requirements, per EHB
and parity regulations.50
In contrast to the relationship between EHB and parity requirements, the preventive services
coverage requirements do not trigger parity requirements. In other words, if the only MH/SUD
benefits a plan covers are the MH/SUD preventive services, in compliance with that federal
requirement, this does not constitute coverage of MH/SUD benefits that would generally trigger
the requirement to comply with federal parity law.51 By contrast, if state law requires a plan to
cover MH/SUD benefits, the plan would then also be subject to federal parity law, unless
otherwise exempt.

48 42 U.S.C. §300gg-26(c)(1) and 45 C.F.R. §146.136(f).
49 42 U.S.C. §300gg-26(c)(2) and 45 C.F.R. §146.136(g). Plans that incur increased “actual total costs” (due to parity
requirements, as specified) above 1% in a plan year may claim an exemption from parity law for the following plan
year. However, nongroup and small-group plans that must cover the EHB and thus are subject to parity requirements
(as discussed in this section) do not appear to be eligible for this exemption, per 45 C.F.R. §146.136(e)(4).
50 45 C.F.R. §146.136(e)(4), 45 C.F.R. §156.115(a)(3).
51 See “Mental Health Parity Requirements.”
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Certain Other Types of Plans
Certain other types of private health plans, such as grandfathered plans and short-term, limited-
duration insurance, do not have to comply with most or all federal health insurance requirements.
These and other coverage types are discussed in a separate CRS report.52
That report also discusses self-insured, nonfederal governmental plans, which previously could
opt out of parity and other specified federal requirements. Per the CAA 2023, these plans can no
longer opt out of mental health parity requirements.53

52 See CRS Report R46003, Applicability of Federal Requirements to Selected Health Coverage Arrangements.
53 42 U.S.C. §300gg-21(a)(2)(F).
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Appendix. Legislative History Summary Table
Table A-1. Legislative History of Mental Health Parity and Selected Benefit
Coverage Requirements Applicable to Private Health Insurance Plans
Public Law
Summary of Relevant Provisions
Mental Health Parity Act of
Required parity in terms of annual and lifetime limits for MH benefits. Applied
1996 (MHPA)
parity law to large-employer plans (ful y or self-insured) that covered MH and
P.L. 104-204, Title VII (§§701-
M/S benefits. Provided exemptions for small-employer plans (ful y or self-insured)
703)
and for plans facing increased costs due to parity implementation. As enacted, set
to expire September 30, 2001. (Extended by other laws between 1997 and 2008.)
Paul Wellstone and Pete
Expanded scope of parity law to include SUD in addition to MH benefits. Added
Domenici Mental Health Parity
new parity requirements regarding financial requirements and treatment
and Addiction Equity Act of
limitations, benefits furnished by out-of-network providers, and information
2008 (MHPAEA)
disclosure. Amended the small-employer and increased-cost exemption
P.L. 110-343, Division C, Title
provisions. Required biannual DOL reports to Congress on parity compliance,
V, Subtitle B (§§511-512)
Tri-Agency rulemaking and guidance on parity requirements, and a GAO report
on MH/SUD benefit coverage and exclusions. Removed parity law sunset dates.
Patient Protection and
Required nongroup and small-group plans (i.e., ful y insured plans offered by small
Affordable Care Act (ACA, as
employers) to cover the EHB, and most plans to cover preventive services
amended, 2010)
without cost sharing.
P.L. 111-148 (§§1001, 1201,
Directly and/or effectively expanded the applicability of parity law to nongroup
1302, 1311, 1563)
and small-group plans, as specified.
Helping Families in Mental
Required Tri-Agency reports to Congress on federal parity investigations,
Health Crisis Reform Act of
annually for five years as specified. Required Tri-Agency “compliance program
2016 (21st Century Cures
guidance document” and “additional guidance,” other agency activities, and a
Act of 2016, Division B)
GAO report to Congress on parity compliance and enforcement. Specified that if
P.L. 114-255, Division B, Title
the Tri-Agency Secretaries determine a plan has violated parity requirements five
XIII (§§13001-13004, 13007)
times, the Secretaries must audit plan documents in the fol owing plan year.
Specified that parity requirements apply to eating disorder benefits, if covered.
SUPPORT for Patients and
Amended Cures Act requirements regarding the content of Tri-Agency reports
Communities Act
to Congress on federal parity investigations.
(SUPPORT Act, 2018)
P.L. 115-271 (§7182)
Consolidated Appropriations
Required plans to perform and document comparative analyses of their NQTLs
Act, 2021 (CAA 2021,
for MH/SUD and M/S benefits, as specified. Required Tri-Agencies to annually
enacted 2020)
request and review at least 20 NQTL comparative analyses, fol ow up as specified
P.L. 116-260, Division BB, Title on noncompliance, and annually report to Congress on these analyses. Amended
II (§203)
Cures Act requirements regarding the “compliance program guidance document”
and “additional guidance.”
Consolidated Appropriations
Provided that self-insured, nonfederal governmental plans may no longer opt out
Act, 2023 (CAA 2023,
of mental health parity requirements. Established HHS grants to states “to
enacted 2022)
enforce and ensure compliance with” mental health parity requirements,
P.L. 117-328, Division FF, Title
including the NQTL comparative analyses. Authorized to be appropriated $10
I (§§1321, 1331)
mil ion per year for five fiscal years fol owing enactment for such grants.
Source: CRS analysis of relevant private health insurance provisions in the laws cited. Some of these laws also
include parity provisions relevant to public programs (e.g., Medicaid), which are not included in this report.
Notes: MH = mental health; M/S = medical / surgical; SUD = substance use disorder; GAO = Government
Accountability Office; Tri-Agency = Department of Health and Human Services (HHS), Department of Labor
(DOL), and Department of the Treasury; EHB = essential health benefits; NQTLs = non-quantitative treatment
limitations. See “Legislative History” in this report regarding codification of these provisions. See “Plans Subject
to Coverage and Parity Requirements” for discussion of plan types. See “Required Federal Reports, Rulemaking,
Guidance, and Other Activities” for links to agency reports, guidance, and other resources.
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Author Information

Vanessa C. Forsberg

Analyst in Health Care Financing

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
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