I.R.C. § 9812(a) In General
I.R.C. § 9812(a)(1) Aggregate Lifetime Limits —
In the case of a group health plan that provides both medical and surgical benefits
and mental health or substance use disorder benefits—
I.R.C. § 9812(a)(1)(A) No Lifetime Limit —
If the plan does not include an aggregate lifetime limit on substantially all medical
and surgical benefits, the plan may not impose any aggregate lifetime limit on mental
health or substance use disorder benefits.
I.R.C. § 9812(a)(1)(B) Lifetime Limit —
If the plan includes an aggregate lifetime limit on
substantially all medical and surgical benefits (in this paragraph
referred to as the “applicable lifetime limit”), the plan shall either—
I.R.C. § 9812(a)(1)(B)(i) —
apply the applicable lifetime limit both to the medical and surgical benefits to
which it otherwise would apply and to mental health and substance use disorder benefits
and not distinguish in the application of such limit between such medical
and surgical benefits and mental health and substance use disorder benefits; or
I.R.C. § 9812(a)(1)(B)(ii) —
not include any aggregate lifetime limit on mental health or substance use disorder
benefits that is less than the applicable lifetime limit.
I.R.C. § 9812(a)(1)(C) Rule In Case Of Different Limits —
In the case of a plan that is not described in subparagraph (A) or (B) and that includes no or different aggregate lifetime limits on different categories
of medical and surgical benefits, the Secretary shall establish rules under which
subparagraph (B) is applied to such plan with respect to mental health and substance use disorder
benefits by substituting for the applicable lifetime limit an average aggregate
lifetime limit that is computed taking into account the weighted average of the
aggregate lifetime limits applicable to such categories.
I.R.C. § 9812(a)(2) Annual Limits —
In the case of a group health plan that provides both medical and surgical benefits
and mental health or substance use disorder benefits—
I.R.C. § 9812(a)(2)(A) No Annual Limit —
If the plan does not include an annual limit on substantially all medical and surgical
benefits, the plan may not impose any annual limit on mental health or substance
use disorder benefits.
I.R.C. § 9812(a)(2)(B) Annual Limit —
If the plan includes an annual limit on substantially
all medical and surgical benefits (in this paragraph referred to as the “applicable
annual limit”), the plan shall either—
I.R.C. § 9812(a)(2)(B)(i) —
apply the applicable annual limit both to medical and surgical benefits to which
it otherwise would apply and to mental health and substance use disorder benefits
and not distinguish in the application of such limit between such medical
and surgical benefits and mental health and substance use disorder benefits; or
I.R.C. § 9812(a)(2)(B)(ii) —
not include any annual limit on mental health or substance use disorder benefits that
is less than the applicable annual limit.
I.R.C. § 9812(a)(2)(C) Rule In Case Of Different Limits —
In the case of a plan that is not described in subparagraph (A) or (B) and that includes no or different annual limits on different categories of medical
and surgical benefits, the Secretary shall establish rules under which subparagraph
(B) is applied to such plan with respect to mental health and substance use disorder
benefits by substituting for the applicable annual limit an average annual limit
that is computed taking into account the weighted average of the annual limits
applicable to such categories.
I.R.C. § 9812(a)(3) Financial Requirements And Treatment Limitations
I.R.C. § 9812(a)(3)(A) In General —
In the case of a group health plan that provides both medical and surgical benefits
and mental health or substance use disorder benefits, such plan shall ensure that—
I.R.C. § 9812(a)(3)(A)(i) —
the financial requirements applicable to such mental health or substance use disorder
benefits are no more restrictive than the predominant financial requirements applied
to substantially all medical and surgical benefits covered by the plan, and there
are no separate cost sharing requirements that are applicable only with respect to
mental health or substance use disorder benefits;
and
I.R.C. § 9812(a)(3)(A)(ii) —
the treatment limitations applicable to such mental health or substance use disorder
benefits are no more restrictive than the predominant treatment limitations applied
to substantially all medical and surgical benefits covered by the plan and there are
no separate treatment limitations that are applicable only with respect to mental
health or substance use disorder benefits.
I.R.C. § 9812(a)(3)(B) Definitions —
In this paragraph:
I.R.C. § 9812(a)(3)(B)(i) Financial Requirement —
The term “financial requirement” includes deductibles, copayments, coinsurance, and
out-of-pocket expenses, but excludes an aggregate lifetime limit and an annual limit
subject to paragraphs (1) and (2).
I.R.C. § 9812(a)(3)(B)(ii) Predominant —
A financial requirement or treatment limit is considered to be predominant if it is
the most common or frequent of such type of limit or requirement.
I.R.C. § 9812(a)(3)(B)(iii) Treatment Limitation —
The term “treatment limitation” includes limits on the frequency of treatment, number
of visits, days of coverage, or other similar limits on the scope or duration of treatment.
I.R.C. § 9812(a)(4) Availability Of Plan Information —
The criteria for medical necessity determinations made under the plan with respect
to mental health or substance use disorder benefits shall be made available by the
plan administrator in accordance with regulations to any current or potential participant,
beneficiary, or contracting provider upon request. The reason for any denial under
the plan of reimbursement or payment for services with respect to mental health or
substance use disorder benefits in the case of any participant or beneficiary shall,
on request or as otherwise required, be made available by the plan administrator to
the participant or beneficiary in accordance with regulations.
I.R.C. § 9812(a)(5) Out-Of-Network Providers —
In the case of a plan that provides both medical and surgical benefits and mental
health or substance use disorder benefits, if the plan provides coverage for medical
or surgical benefits provided by out-of-network providers, the plan shall provide
coverage for mental health or substance use disorder benefits provided by out-of-network
providers in a manner that is consistent with the requirements of this section.
I.R.C. § 9812(a)(6) Compliance Program Guidance Document
I.R.C. § 9812(a)(6)(A) In General —
The Secretary, the Secretary of Health and Human Services, and the Secretary of Labor,
in consultation with the Inspector General of the Department of Health and Human Services,
the Inspector General the Department of Labor, and the Inspector General of the Department
of the Treasury, shall issue a compliance program guidance document to help improve
compliance with this section, section 2726 of the Public Health Service Act, and section
712 of the Employee Retirement Income Security Act of 1974, as applicable. In carrying
out this paragraph, the Secretaries may take into consideration the 2016 publication
of the Department of Health and Human Services and the Department of Labor, entitled
‘Warning Signs - Plan or Policy Non-Quantitative Treatment Limitations (NQTLs) that
Require Additional Analysis to Determine Mental Health Parity Compliance’.
I.R.C. § 9812(a)(6)(B) Examples Illustrating Compliance And Noncompliance
I.R.C. § 9812(a)(6)(B)(i) In General —
The compliance program guidance document required under this paragraph shall provide
illustrative, de-identified examples
(that do not disclose any protected health information or individually identifiable
information) of previous findings of compliance and noncompliance with this section,
section 2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable, based on investigations of violations of such sections, including—
I.R.C. § 9812(a)(6)(B)(i)(I) —
examples illustrating requirements for information disclosures and nonquantitative
treatment limitations;
and
I.R.C. § 9812(a)(6)(B)(i)(II) —
descriptions of the violations uncovered during the course of such investigations.
I.R.C. § 9812(a)(6)(B)(ii) Nonquantitative Treatment Limitations —
To the extent that any example described in clause (i)
involves a finding of compliance or noncompliance with regard to any requirement for
nonquantitative treatment limitations, the example shall provide sufficient detail
to fully explain such finding, including a full description of the criteria involved
for approving medical and surgical benefits and the criteria involved for approving
mental health and substance use disorder benefits.
I.R.C. § 9812(a)(6)(B)(iii) Access to Additional Information Regarding Compliance —
In developing and issuing the compliance program guidance document required under
this paragraph, the Secretaries specified in subparagraph (A)—
I.R.C. § 9812(a)(6)(B)(iii)(I) —
shall enter into interagency agreements with the Inspector General of the Department
of Health and Human Services, the Inspector General of the Department of Labor, and
the Inspector General of the Department of the Treasury to share findings of compliance
and noncompliance with this section, section 2726 of the Public Health Service Act,
or section 712 of the Employee Retirement Income Security Act of 1974, as applicable;
and
I.R.C. § 9812(a)(6)(B)(iii)(II) —
shall seek to enter into an agreement with a State to share information on findings
of compliance and noncompliance with this section, section 2726 of the Public Health
Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable.
I.R.C. § 9812(a)(6)(C) Recommendations —
The compliance program guidance document shall include recommendations to advance
compliance with this section, section 2726 of the Public Health Service Act, or section
712 of the Employee Retirement Income Security Act of 1974, as applicable, and encourage
the development and use of internal controls to monitor adherence to applicable statutes,
regulations, and program requirements. Such internal controls may include illustrative
examples of nonquantitative treatment limitations on mental health and substance use
disorder benefits, which may fail to comply with this section, section 2726 of the
Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable, in relation to nonquantitative treatment limitations on medical
and surgical benefits.
I.R.C. § 9812(a)(6)(D) Updating the Compliance Program Guidance Document —
The Secretary, the Secretary of Health and Human Services, and the Secretary of Labor,
in consultation with the Inspector General of the Department of Health and Human Services,
the Inspector General of the Department of Labor, and the Inspector General of the
Department of the Treasury, shall update the compliance program guidance document
every 2 years to include illustrative, de-identified examples (that do not disclose
any protected health information or individually identifiable information) of previous
findings of compliance and noncompliance with this section, section 2726 of the Public
Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable.
I.R.C. § 9812(a)(7) Additional Guidance
I.R.C. § 9812(a)(7)(A) In General —
The Secretary, the Secretary of Health and Human Services, and the Secretary of Labor
shall issue guidance to group health plans to assist such plans in satisfying the
requirements of this section, section 2726 of the Public Health Service Act, or section
712 of the Employee Retirement Income Security Act of 1974, as applicable.
I.R.C. § 9812(a)(7)(B) Disclosure
I.R.C. § 9812(a)(7)(B)(i) Guidance for Plans —
The guidance issued under this paragraph shall include clarifying information and
illustrative examples of methods that group health plans may use for disclosing information
to ensure compliance with the requirements under this section, section 2726 of the
Public Health Service Act, or section 712 of the Employee Retirement Income Security
Act of 1974, as applicable, (and any regulations promulgated pursuant to such sections,
as applicable).
I.R.C. § 9812(a)(7)(B)(ii) Documents for Participants, Beneficiaries, Contracting Providers, or Authorized Representatives
—
The guidance issued under this paragraph shall include clarifying information and
illustrative examples of methods that group health plans may use to provide any participant,
beneficiary, contracting provider, or authorized representative, as applicable, with
documents containing information that the health plans are required to disclose to
participants, beneficiaries, contracting providers, or authorized representatives
to ensure compliance with this section, section 2726 of the Public Health Service
Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable,
compliance with any regulation issued pursuant to such respective section, or compliance
with any other applicable law or regulation. Such guidance shall include information
that is comparative in nature with respect to—
I.R.C. § 9812(a)(7)(B)(ii)(I) —
nonquantitative treatment limitations for both medical and surgical benefits and mental
health and substance use disorder benefits;
I.R.C. § 9812(a)(7)(B)(ii)(II) —
the processes, strategies, evidentiary standards, and other factors used to apply
the limitations described in subclause (I); and
I.R.C. § 9812(a)(7)(B)(ii)(III) —
the application of the limitations described in subclause (I) to ensure that such
limitations are applied in parity with respect to both medical and surgical benefits
and mental health and substance use disorder benefits.
I.R.C. § 9812(a)(7)(C) Nonquantitative Treatment Limitations —
The guidance issued under this paragraph shall include clarifying information and
illustrative examples of methods, processes, strategies, evidentiary standards, and
other factors that group health plans may use regarding the development and application
of nonquantitative treatment limitations to ensure compliance with this section, section
2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income
Security Act of 1974, as applicable, (and any regulations promulgated pursuant to
such respective section), including—
I.R.C. § 9812(a)(7)(C)(i) —
examples of methods of determining appropriate types of nonquantitative treatment
limitations with respect to both medical and surgical benefits and mental health and
substance use disorder benefits, including nonquantitative treatment limitations pertaining
to—
I.R.C. § 9812(a)(7)(C)(i)(I) —
medical management standards based on medical necessity or appropriateness, or whether
a treatment is experimental or investigative;
I.R.C. § 9812(a)(7)(C)(i)(II) —
limitations with respect to prescription drug formulary design; and
I.R.C. § 9812(a)(7)(C)(i)(III) —
use of fail-first or step therapy protocols;
I.R.C. § 9812(a)(7)(C)(ii) —
examples of methods of determining
I.R.C. § 9812(a)(7)(C)(ii)(I) —
network admission standards (such as credentialing); and
I.R.C. § 9812(a)(7)(C)(ii)(II) —
factors used in provider reimbursement methodologies (such as service type, geographic
market, demand for services, and provider supply, practice size, training, experience,
and licensure) as such factors apply to network adequacy;
I.R.C. § 9812(a)(7)(C)(iii) —
examples of sources of information that may serve as evidentiary standards for the
purposes of making determinations regarding the development and application of nonquantitative
treatment limitations;
I.R.C. § 9812(a)(7)(C)(iv) —
examples of specific factors, and the evidentiary standards used to evaluate such
factors, used by such plans in performing a nonquantitative treatment limitation analysis;
I.R.C. § 9812(a)(7)(C)(v) —
examples of how specific evidentiary standards may be used to determine whether treatments
are considered experimental or investigative;
I.R.C. § 9812(a)(7)(C)(vi) —
examples of how specific evidentiary standards may be applied to each service category
or classification of benefits;
I.R.C. § 9812(a)(7)(C)(vii) —
examples of methods of reaching appropriate coverage determinations for new mental
health or substance use disorder treatments, such as evidence-based early intervention
programs for individuals with a serious mental illness and types of medical management
techniques;
I.R.C. § 9812(a)(7)(C)(viii) —
examples of methods of reaching appropriate coverage determinations for which there
is an indirect relationship between the covered mental health or substance use disorder
benefit and a traditional covered medical and surgical benefit, such as residential
treatment or hospitalizations involving voluntary or involuntary commitment;
and
I.R.C. § 9812(a)(7)(C)(ix) —
additional illustrative examples of methods, processes, strategies, evidentiary standards,
and other factors for which the Secretary determines that additional guidance is necessary
to improve compliance with this section, section 2726 of the Public Health Service
Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable.
I.R.C. § 9812(a)(7)(D) Public Comment —
Prior to issuing any final guidance under this paragraph, the Secretary shall provide
a public comment period of not less than 60 days during which any member of the public
may provide comments on a draft of the guidance.
I.R.C. § 9812(a)(8) Compliance Requirements
I.R.C. § 9812(a)(8)(A) Nonquantitative Treatment Limitation (NQTL) Requirements —
In the case of a group health plan that provides both medical and surgical benefits
and mental health or substance use disorder benefits and that imposes nonquantitative
treatment limitations (referred to in this section as ‘NQTLs’) on mental health or
substance use disorder benefits, such plan shall perform and document comparative
analyses of the design and application of NQTLs and, beginning 45 days after the date
of enactment of the Consolidated Appropriations Act, 2021, make available to the Secretary,
upon request, the comparative analyses and the following information:
I.R.C. § 9812(a)(8)(A)(i) —
The specific plan terms or other relevant terms regarding the NQTLs and a description
of all mental health or substance use disorder and medical or surgical benefits to
which each such term applies in each respective benefits classification.
I.R.C. § 9812(a)(8)(A)(ii) —
The factors used to determine that the NQTLs will apply to mental health or substance
use disorder benefits and medical or surgical benefits.
I.R.C. § 9812(a)(8)(A)(iii) —
The evidentiary standards used for the factors identified in clause (ii), when applicable,
provided that every factor shall be defined, and any other source or evidence relied
upon to design and apply the NQTLs to mental health or substance use disorder benefits
and medical or surgical benefits.
I.R.C. § 9812(a)(8)(A)(iv) —
The comparative analyses demonstrating that the processes, strategies, evidentiary
standards, and other factors used to apply the NQTLs to mental health or substance
use disorder benefits, as written and in operation, are comparable to, and are applied
no more stringently than, the processes, strategies, evidentiary standards, and other
factors used to apply the NQTLs to medical or surgical benefits in the benefits classification.
I.R.C. § 9812(a)(8)(A)(v) —
A disclosure of the specific findings and conclusions reached by the group health
plan, including any results of the analyses described in this subparagraph that indicate
that the plan is or is not in compliance with this section.
I.R.C. § 9812(a)(8)(B) Secretary Request Process
I.R.C. § 9812(a)(8)(B)(i) Submission Upon Request —
The Secretary shall request that a group health plan submit the comparative analyses
described in subparagraph (A) for plans that involve potential violations of this
section or complaints regarding noncompliance with this section that concern NQTLs
and any other instances in which the Secretary determines appropriate. The Secretary
shall request not fewer than 20 such analyses per year.
I.R.C. § 9812(a)(8)(B)(ii) Additional Information —
In instances in which the Secretary has concluded that the group health plan has not
submitted sufficient information for the Secretary to review the comparative analyses
described in subparagraph
(A), as requested under clause (i), the Secretary shall specify to the plan the information
the plan must submit to be responsive to the request under clause (i) for the Secretary
to review the comparative analyses described in subparagraph (A) for compliance with
this section. Nothing in this paragraph shall require the Secretary to conclude that
a group health plan is in compliance with this section solely based upon the inspection
of the comparative analyses described in subparagraph (A), as requested under clause
(i).
I.R.C. § 9812(a)(8)(B)(iii) Required Action
I.R.C. § 9812(a)(8)(B)(iii)(I) In General —
In instances in which the Secretary has reviewed the comparative analyses described
in subparagraph (A), as requested under clause (i), and determined that the group
health plan is not in compliance with this section, the plan—
I.R.C. § 9812(a)(8)(B)(iii)(I)(aa) —
shall specify to the Secretary the actions the plan will take to be in compliance
with this section and provide to the Secretary additional comparative analyses described
in subparagraph
(A) that demonstrate compliance with this section not later than 45 days after the
initial determination by the Secretary that the plan is not in compliance; and
I.R.C. § 9812(a)(8)(B)(iii)(I)(bb) —
following the 45-day corrective action period under item (aa), if the Secretary makes
a final determination that the plan still is not in compliance with this section,
not later than 7 days after such determination, shall notify all individuals enrolled
in the plan that the plan has been determined to be not in compliance with this section.
I.R.C. § 9812(a)(8)(B)(iii)(II) Exemption From Disclosure —
Documents or communications produced in connection with the Secretary's recommendations
to a group health plan shall not be subject to disclosure pursuant to section 552
of title 5, United States Code.
I.R.C. § 9812(a)(8)(B)(iv) Report —
Not later than 1 year after the date of enactment of this paragraph, and not later
than October 1 of each year thereafter, the Secretary shall submit to Congress, and
make publicly available, a report that contains—
I.R.C. § 9812(a)(8)(B)(iv)(I) —
a summary of the comparative analyses requested under clause (i), including the identity
of each group plan that is determined to be not in compliance after the final determination
by the Secretary described in clause (iii)(I)(bb);
I.R.C. § 9812(a)(8)(B)(iv)(II) —
the Secretary's conclusions as to whether each group health plan submitted sufficient
information for the Secretary to review the comparative analyses requested under clause
(i) for compliance with this section;
I.R.C. § 9812(a)(8)(B)(iv)(III) —
for each group health plan that did submit sufficient information for the Secretary
to review the comparative analyses requested under clause (i), the Secretary's conclusions
as to whether and why the plan is in compliance with the disclosure requirements under
this section;
I.R.C. § 9812(a)(8)(B)(iv)(IV) —
the Secretary's specifications described in clause (ii) for each group health plan
that the Secretary determined did not submit sufficient information for the Secretary
to review the comparative analyses requested under clause (i) for compliance with
this section; and
I.R.C. § 9812(a)(8)(B)(iv)(V) —
the Secretary's specifications described in clause (iii) of the actions each group
health plan that the Secretary determined is not in compliance with this section must
take to be in compliance with this section, including the reason why the Secretary
determined the plan is not in compliance.
I.R.C. § 9812(a)(8)(C) Compliance Program Guidance Document Update Process
I.R.C. § 9812(a)(8)(C)(i) In General —
The Secretary shall include instances of noncompliance that the Secretary discovers
upon reviewing the comparative analyses requested under subparagraph (B)(i) in the
compliance program guidance document described in paragraph (6), as it is updated
every 2 years, except that such instances shall not disclose any protected health
information or individually identifiable information.
I.R.C. § 9812(a)(8)(C)(ii) Guidance and Regulations —
Not later than 18 months after the date of enactment of this paragraph, the Secretary
shall finalize any draft or interim guidance and regulations relating to mental health
parity under this section. Such draft guidance shall include guidance to clarify the
process and timeline for current and potential participants and beneficiaries
(and authorized representatives and health care providers of such participants and
beneficiaries) with respect to plans to file complaints of such plans being in violation
of this section, including guidance, by plan type, on the relevant State, regional,
or national office with which such complaints should be filed.
I.R.C. § 9812(a)(8)(C)(iii) State —
The Secretary shall share information on findings of compliance and noncompliance
discovered upon reviewing the comparative analyses requested under subparagraph (B)(i)
shall be shared with the State where the group health plan is located, in accordance
with paragraph (6)(B)(iii)(II).
I.R.C. § 9812(b) Construction —
Nothing in this section shall be construed—
I.R.C. § 9812(b)(1) —
as requiring a group health plan to provide any mental health or substance use disorder
benefits;
or
I.R.C. § 9812(b)(2) —
in the case of a group health plan that provides mental health or substance use disorder
benefits, as affecting the terms and conditions of the plan relating to such benefits
under the plan, except as provided in subsection (a).
I.R.C. § 9812(c) Exemptions
I.R.C. § 9812(c)(1) Small Employer Exemption
I.R.C. § 9812(c)(1)(A) In General —
This section shall not apply to any group health plan for any plan year of a small
employer.
I.R.C. § 9812(c)(1)(B) Small Employer —
For purposes of subparagraph (A), the term “small employer”
means, with respect to a calendar year and a plan year, an employer who employed an
average of at least 2 (or 1 in the case of an employer residing in a State that permits
small groups to include a single individual) but not more than 50 employees on business
days during the preceding calendar year. For purposes of the preceding sentence, all
persons treated as a single employer under subsection (b), (c), (m), or (o) of section 414 shall be treated as 1 employer and rules similar to rules of subparagraphs (B) and (C) of section 4980D(d)(2) shall apply.
I.R.C. § 9812(c)(2) Cost Exemption
I.R.C. § 9812(c)(2)(A) In General —
With respect to a group health plan, if the application of this section to such plan
results in an increase for the plan year involved of the actual total costs of coverage
with respect to medical and surgical benefits and mental health and substance use
disorder benefits under the plan (as determined and certified under subparagraph (C)) by an amount that exceeds the applicable percentage described in subparagraph (B)
of the actual total plan costs, the provisions of this section shall not apply to
such plan during the following plan year, and such exemption shall apply to the plan
for 1 plan year. An employer may elect to continue to apply mental health and substance
use disorder parity pursuant to this section with respect to the group health plan
involved regardless of any increase in total costs.
I.R.C. § 9812(c)(2)(B) Applicable Percentage —
With respect to a plan, the applicable percentage described in this subparagraph shall
be—
I.R.C. § 9812(c)(2)(B)(i) —
2 percent in the case of the first plan year in which this section is applied; and
I.R.C. § 9812(c)(2)(B)(ii) —
1 percent in the case of each subsequent plan year.
I.R.C. § 9812(c)(2)(C) Determinations By Actuaries —
Determinations as to increases in actual costs under a plan for purposes of this section
shall be made and certified by a qualified and licensed actuary who is a member in
good standing of the American Academy of Actuaries. All such determinations shall
be in a written report prepared by the actuary. The report, and all underlying documentation
relied upon by the actuary, shall be maintained by the group health plan for a period
of 6 years following the notification made under subparagraph (E).
I.R.C. § 9812(c)(2)(D) 6-Month Determinations —
If a group health plan seeks an exemption under this paragraph, determinations under
subparagraph (A) shall be made after such plan has complied with this section for the first 6 months
of the plan year involved.
I.R.C. § 9812(c)(2)(E) Notification
I.R.C. § 9812(c)(2)(E)(i) In General —
A group health plan that, based upon a certification described under subparagraph
(C), qualifies for an exemption under this paragraph, and elects to implement the exemption,
shall promptly notify the Secretary, the appropriate State agencies, and participants
and beneficiaries in the plan of such election.
I.R.C. § 9812(c)(2)(E)(ii) Requirement —
A notification to the Secretary under clause (i) shall include—
I.R.C. § 9812(c)(2)(E)(ii)(I) —
a description of the number of covered lives under the plan involved at the time of
the notification, and as applicable, at the time of any prior election of the cost-exemption
under this paragraph by such plan;
I.R.C. § 9812(c)(2)(E)(ii)(II) —
for both the plan year upon which a cost exemption is sought and the year prior, a
description of the actual total costs of coverage with respect to medical and surgical
benefits and mental health and substance use disorder benefits under the plan; and
I.R.C. § 9812(c)(2)(E)(ii)(III) —
for both the plan year upon which a cost exemption is sought and the year prior, the
actual total costs of coverage with respect to mental health and substance use disorder
benefits under the plan.
I.R.C. § 9812(c)(2)(E)(iii) Confidentiality —
A notification to the Secretary under clause (i) shall be confidential. The Secretary shall make available, upon request and on not
more than an annual basis, an anonymous itemization of such notifications, that includes—
I.R.C. § 9812(c)(2)(E)(iii)(I) —
a breakdown of States by the size and type of employers submitting such notification;
and
I.R.C. § 9812(c)(2)(E)(iii)(II) —
a summary of the data received under clause (ii).
I.R.C. § 9812(c)(2)(F) Audits By Appropriate Agencies —
To determine compliance with this paragraph, the Secretary may audit the books and
records of a group health plan relating to an exemption, including any actuarial reports
prepared pursuant to subparagraph (C), during the 6 year period following the notification of such exemption under subparagraph
(E). A State agency receiving a notification under subparagraph (E) may also conduct
such an audit with respect to an exemption covered by such notification.
I.R.C. § 9812(d) Separate Application To Each Option Offered —
In the case of a group health plan that offers a participant or beneficiary two
or more benefit package options under the plan, the requirements of this section
shall be applied separately with respect to each such option.
I.R.C. § 9812(e) Definitions —
For purposes of this section:
I.R.C. § 9812(e)(1) Aggregate Lifetime Limit —
The term “aggregate lifetime limit” means,
with respect to benefits under a group health plan, a dollar limitation on the total
amount that may be paid with respect to such benefits under the plan with respect
to an individual or other coverage unit.
I.R.C. § 9812(e)(2) Annual Limit —
The term “annual limit” means, with respect to benefits under a group health plan,
a dollar limitation on the total amount of benefits that may be paid with respect
to such benefits in a 12-month period under the plan with respect to an individual
or other coverage unit.
I.R.C. § 9812(e)(3) Medical Or Surgical Benefits —
The term “medical or surgical
benefits” means benefits with respect to medical or surgical services, as defined
under the terms of the plan, but does not include mental health or substance use
disorder benefits.
I.R.C. § 9812(e)(4) Mental Health Benefits —
The term “mental health benefits”
means 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.
I.R.C. § 9812(e)(5) Substance Use Disorder Benefits —
The term “substance use disorder benefits” means benefits with respect to services
for substance use disorders, as defined under the terms of the plan and in accordance
with applicable Federal and State law.
Added by . Pub. L. 105-34, title XV, Sec. 1531(a)(4), Aug. 5, 1997, 111 Stat. 788; Amended by Pub. L. 107-147, title VI, Sec. 610, Mar. 9, 2002, 116 Stat. 21; Pub. L. 108-311, title III, Sec. 302(a), Oct. 4, 2004, 118 Stat. 1166; Pub. L. 109-151, Sec. 1(c), Dec. 30, 2005, 119 Stat. 2886; Pub. L. 109-432, div. A, title I, Sec. 115(a), Dec. 20, 2006, 120 Stat. 2922; Pub. L. 110-245, Sec. 401(a), June 17, 2008, 122 Stat. 1624; Pub. L. 110-343, div. C, title V, Sec. 512(c), (g), Oct. 3, 2008, 122 Stat. 3765; Pub. L. 115-141, Div. U, title IV, Sec. 401(a)(349), Mar. 23, 2018, 132 Stat. 348; Pub. L. 116-260, Div. BB, title II, Sec. 203(a)(3), Dec. 27, 2020.)
BACKGROUND NOTES
AMENDMENTS
2020 - Subsec. (a)(6)-(8). Pub. L. 116-260, Div. BB, Sec. 203(a)(3), added par. (6)-(8).
2018 -
Subsec. (a)(3)(B)(i). Pub. L. 115-141, Div. U, Sec. 401(a)(349), amended clause (i) by substituting a period for the comma
at the end.
2008 - Sec. 9812. Pub. L. 110-343, Div. C, Sec. 512(g), amended the heading of Sec. 9812 by substituting “Parity In
Mental Health And Substance Use Disorder Benefits” for “Parity In The Application
Of Certain Limits To Mental Health Benefits”.
Sec. 9812. Pub. L. 110-343, Div. C, 512(c)(6), (7), amended Sec. 9812 by substituting “mental health and substance
use disorder benefits” for “mental health benefits” each place it appears in subsec.
(a)(1)(B)(i),
(a)(1)(C), (a)(2)(B)(i), and (a)(2)(C), and by substituting “mental health or substance
use disorder benefits” for “mental health benefits"
in any other provision.
Subsec. (a)(3)-(5). Pub. L. 110-343, Div. C, Sec. 512(c)(1), amended subsec. (a)
by adding par. (3), (4), and (5).
Subsec. (b)(2). Pub. L. 110-343, Div. C, Sec. 512(c)(2), amended par. (2). Before amendment it read as follows:
“(2) in the case of a group health plan that provides mental health benefits, as
affecting the terms and conditions
(including cost sharing, limits on numbers of visits or days of coverage, and requirements
relating to medical necessity) relating to the amount, duration, or scope of mental
health benefits under the plan, except as specifically provided in subsection (a)
(in regard to parity in the imposition of aggregate lifetime limits and annual limits
for mental health benefits).”
Subsec. (c)(1). Pub. L. 110-343, Div. C, Sec. 512(c)(3)(A), amended par. (1). Before amendment, it read as follows:
“(1) Small Employer Exemption.—This section shall not apply to any group health plan
for any plan year of a small employer (as defined in section 4980D(d)(2)).”
Subsec. (c)(2). Pub. L. 110-343, Div. C, Sec. 512(c)(3)(B), amended par. (2). Before amendment, it read as follows:'
“(2) Increased Cost Exemption.— This section shall not apply with respect to a group
health plan if the application of this section to such plan results in an increase
in the cost under the plan of at least 1 percent.”
Subsec. (e)(4)-(5). Pub. L. 110-343, Div. C, Sec. 512(c)(4), struck par. (4) and added par. (4) and (5). Before being
struck, par. (4) read as follows:
“(4) Mental Health Benefits.— The term
“mental health benefits” means benefits with respect to mental health services, as
defined under the terms of the plan, but does not include benefits with respect to
treatment of substance abuse or chemical dependency.”
Subsec. (f). Pub. L. 110-343, Div. C, Sec. 512(c)(5), struck subsec. (f). Before being struck, it read as follows:
“(f) Application Of Section.— This section shall not apply to benefits for services
furnished--
“(1) on or after September 30, 2001, and before January 10, 2002,
“(2) on or after January 1, 2004, and before the date of the enactment of the Working
Families Tax Relief Act of 2004,
“(3) on or after January 1, 2008, and before the date of the enactment of the Heroes
Earnings Assistance and Relief Tax Act of 2008, and
“(4) after December 31, 2008.”
Subsec. (f)(2)-(4). Pub. L. 110-245, Sec. 401(a), amended subsec. (f) by striking “and”
at the end of par. (2); by striking par. (3); and by adding new par.
(3) and (4). Before being struck, par. (3) read as follows:
“(3) after December 31, 2007.”.
2006 - Subsec. (f)(3). Pub. L. 109-432, Sec. 115(a), amended par. (3) by substituting “2007” for “2006”.
2005 - Subsec. (f)(3). Pub. L. 109-151, Sec. 1(c), amended par. (3) by substituting “December 31, 2006” for “December 31, 2005”.
2004 - Subsec. (f)(1). Pub. L. 108-311, Sec. 302(a)(1), amended par. (1) by striking “and” at the end.
Subsec. (f)(2)-(3). Pub. L. 108-311, Sec. 302(a)(2), amended subsec. (f) by striking par. (2) and adding new par. (2) and
(3). Before amendment, par. (2) read as follows:
“(2) after December 31, 2003.”
2002 - Subsec. (f). Pub. L. 107-147, Sec. 610, amended subsec. (f). Prior to amendment it read as follows:
“(f) Sunset.-- This section shall not apply to benefits for services furnished on
or after September 30, 2001.”
EFFECTIVE DATE OF 2020 AMENDMENTS
Amendments by Pub. L. 116-260, Div. BB, Sec. 203(a)(3), effective December 27, 2020.
EFFECTIVE DATE OF 2018 AMENDMENT
Amendments by Pub. L. 115-141, Div. U, Sec. 401(a)(349), effective March 23, 2018.
EFFECTIVE DATE OF 2008 AMENDMENTS
Amendments by Sec. 512(c) of Pub. L. 110-343, Div. C, effective with respect to group health plans for plan years beginning after
the date that is 1 year after the date of enactment of this Act [Enacted: Oct. 3,
2008], regardless of whether regulations have been issued to carry out such amendments
by such effective date, except that the amendments made by subsections (c)(5), relating
to striking of certain sunset provisions, shall take effect on January 1, 2009. Sec.
512(e)(2) of Pub. L. 110-343, Div. C, as amended by Pub. L. 110-460, Sec. 1, provided the following special rule:
“SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS.—In the case of a group health
plan maintained pursuant to one or more collective bargaining agreements between employee
representatives and one or more employers ratified before the date of the enactment
of this Act, the amendments made by this section shall not apply to plan years beginning
before the later of—
“(A) the date on which the last of the collective bargaining agreements relating to
the plan terminates (determined without regard to any extension thereof agreed to
after the date of the enactment of this Act), or
“(B) January 1, 2010.
“For purposes of subparagraph (A), any plan amendment made pursuant to a collective
bargaining agreement relating to the plan which amends the plan solely to conform
to any requirement added by this section shall not be treated as a termination of
such collective bargaining agreement.”
Amendment by Sec. 512(g) of Pub. L. 110-343, Div. C, effective on the date of the enactment of this Act [Enacted: Oct. 3, 2008].
Amendments by Sec. 401(a) of Pub. L. 110-245 effective on the date of the enactment of this Act [Enacted: June 17, 2008].
EFFECTIVE DATE OF 2006 AMENDMENT
Amendment by Sec. 115(a) of Pub. L. 109-432 effective on the date of the enactment of this Act [Enacted: Dec. 20, 2006].
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Sec. 1(c) of Pub. L. 109-151 effective on the date of the enactment of this Act [Enacted: Dec. 30, 2005].
EFFECTIVE DATE OF 2004 AMENDMENTS
Amendments by Sec. 302(a) of Pub. L. 108-311 effective on the date of the enactment of this Act [Enacted: Oct. 4, 2004].
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Sec. 610 of Pub. L. 107-147 effective for plan years beginning after December 31, 2000.
COVERAGE OF TESTING FOR COVID–19
Section 6001 of Pub. L. 116-127 provided:
“SEC. 6001. COVERAGE OF TESTING FOR COVID–19.
“(a) IN GENERAL.—A group health plan and a health insurance issuer offering group
or individual health insurance coverage (including a grandfathered health plan (as
defined in section 1251(e) of the Patient Protection and Affordable Care Act)) shall provide coverage, and shall not impose any cost sharing (including deductibles,
copayments, and coinsurance) requirements or prior authorization or other medical
management requirements, for the following items and services furnished during any
portion of the emergency period defined in paragraph (1)(B)
of section 1135(g) of the Social Security Act (42 U.S.C. 1320b–5(g))
beginning on or after the date of the enactment of this Act:
“(1) In vitro diagnostic products (as defined in section 809.3(a) of title 21, Code
of Federal Regulations) for the detection of SARS–CoV–2 or the diagnosis of the virus
that causes COVID–19 that are approved, cleared, or authorized under section 510(k),
513, 515 or 564 of the Federal Food, Drug, and Cosmetic Act, and the administration
of such in vitro diagnostic products.
“(2) Items and services furnished to an individual during health care provider office
visits (which term in this paragraph includes in-person visits and telehealth visits),
urgent care center visits, and emergency room visits that result in an order for or
administration of an in vitro diagnostic product described in paragraph (1), but only
to the extent such items and services relate to the furnishing or administration of
such product or to the evaluation of such individual for purposes of determining the
need of such individual for such product.
“(b) ENFORCEMENT.—The provisions of subsection (a) shall be applied by the Secretary
of Health and Human Services, Secretary of Labor, and Secretary of the Treasury to
group health plans and health insurance issuers offering group or individual health
insurance coverage as if included in the provisions of part A of title XXVII of the
Public Health Service Act, part 7 of the Employee Retirement Income Security Act of
1974, and subchapter B of chapter100 of the Internal Revenue Code of 1986, as applicable.
“(c) IMPLEMENTATION.—The Secretary of Health and Human Services, Secretary of Labor,
and Secretary of the Treasury may implement the provisions of this section through
sub-regulatory guidance, program instruction or otherwise.
“(d) TERMS.—The terms ‘‘group health plan’’; ‘‘health insurance issuer’’; ‘‘group
health insurance coverage’’, and ‘‘individual health insurance coverage’’ have the
meanings given such terms in section 2791 of the Public Health Service Act (42 U.S.C. 300gg–91), section 733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b), and section 9832 of the Internal Revenue Code of 1986, as applicable.”
ASSURING COORDINATION
Pub. L. 110-343, Div. C, Sec. 512(f), provided that:
“(f) Assuring Coordination.—The Secretary of Health and Human Services, the Secretary
of Labor, and the Secretary of the Treasury may ensure, through the execution or revision
of an interagency memorandum of understanding among such Secretaries, that—
“(1) regulations, rulings, and interpretations issued by such Secretaries relating
to the same matter over which two or more such Secretaries have responsibility under
this section
(and the amendments made by this section) are administered so as to have the same
effect at all times; and
“(2) coordination of policies relating to enforcing the same requirements through
such Secretaries in order to have a coordinated enforcement strategy that avoids duplication
of enforcement efforts and assigns priorities in enforcement.”
EFFECTIVE DATE
Applicable with respect to group health plans for plan years beginning on or after
January 1, 1998.
