[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2647 Introduced in Senate (IS)]
<DOC>
114th CONGRESS
2d Session
S. 2647
To strengthen parity in mental health and substance use disorder
benefits.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 7, 2016
Ms. Warren (for herself, Mr. Brown, Mr. Franken, Mr. Blumenthal, and
Ms. Baldwin) introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To strengthen parity in mental health and substance use disorder
benefits.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Behavioral Health Coverage
Transparency Act of 2016''.
SEC. 2. STRENGTHENING PARITY IN MENTAL HEALTH AND SUBSTANCE USE
DISORDER BENEFITS.
(a) Public Health Service Act.--Section 2726 of the Public Health
Service Act (42 U.S.C. 300gg-26) is amended--
(1) in subsection (a), by adding at the end the following:
``(6) Disclosure and enforcement requirements.--
``(A) Disclosure requirements.--
``(i) Regulations.--Not later than
September 30, 2016, the Secretary, in
cooperation with the Secretaries of Labor and
the Treasury, as appropriate, shall issue
additional regulations for carrying out this
section, including an explanation of documents
that must be disclosed by group health plans or
health insurance issuers offering group or
individual health insurance coverage, the
process governing the disclosure of such
documents, and analyses that must be conducted
by such plans and issuers to comply with this
section.
``(ii) Requirements.--A group health plan
or a health insurance issuer offering group or
individual health insurance coverage shall
disclose to the Secretary in a standardized
format documents that include--
``(I) the specific analyses
performed to ensure compliance with
this section and any regulations
promulgated pursuant to this section;
``(II) a description of the
application of non-quantitative
treatment limitations (in this
paragraph referred to as `NQTLs') to
benefits offered by such plan or
issuer, including--
``(aa) the specific factors
the plan or issuer used in
performing its NQTLs analysis;
``(bb) the specific
evidentiary standards relied on
to evaluate such factors;
``(cc) how the evidentiary
standards are applied to each
service category for mental
health, substance use
disorders, medical benefits,
and surgical benefits;
``(dd) a disclosure of the
results of the analyses of the
specific evidentiary standards
in each service category; and
``(ee) a disclosure of the
specific findings of such plan
or issuer in each service
category and the conclusions
reached with respect to whether
the processes, strategies,
evidentiary standards, or other
factors used in applying NQTLs
to mental health or substance
use disorder benefits are
comparable to, and applied no
more stringently than, the
processes, strategies,
evidentiary standards, or other
factors used in applying NQTLs
with respect to medical and
surgical benefits in the same
classification; and
``(III) the rates of and reasons
for denial by the plan or issuer for
outpatient and inpatient mental health
and substance use disorder services
compared to the rates of and reasons
for denial of claims for medical and
surgical services.
``(iii) Guidance.--The Secretary, in
cooperation with the Secretaries of Labor and
the Treasury, as appropriate, shall issue
guidance to group health plans or health
insurance issuers offering group or individual
health insurance coverage on how to satisfy the
requirements of this section with respect to
making information available to current and
potential participants and beneficiaries. Such
information shall include certificate of
coverage documents and instruments under which
the plan or coverage involved is administered
and operated that specify, include, or refer to
procedures, formulas, and methodologies applied
to determine a participant or beneficiary's
benefit under the plan or coverage, regardless
of whether such information is contained in a
document designated as the `plan document'.
Such guidance shall include a disclosure of how
the plan or coverage involved has demonstrated
that processes, strategies, evidentiary
standards, and other factors used in applying
NQTLs to mental health or substance use
disorder benefits are comparable to, and
applied no more stringently than, the
processes, strategies, evidentiary standards,
or other factors used in applying NQTLs with
respect to medical and surgical benefits in the
same classification.
``(iv) Definitions.--In this paragraph, the
terms `non-quantitative treatment limitations',
`comparable to', and `applied no more
stringently than' have the meanings given such
terms in parts 146 and 147 of title 45, Code of
Federal Regulations (or any successor
regulation).
``(B) Enforcement.--
``(i) Process for complaints.--The
Secretary, in cooperation with the Secretaries
of Labor and the Treasury, as appropriate,
shall issue 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) of group
health plans or health insurance issuers
offering group or individual health insurance
coverage to file formal complaints of such
plans or issuers being in violation of this
section, including guidance, by plan type, on
the relevant State, regional, and national
offices, including the consumer parity unit
established under paragraph (7), with which
such complaints should be filed.
``(ii) Authority for public enforcement.--
The Secretary, in consultation with the
Secretaries of Labor and the Treasury, shall
make available to the public on the website of
the consumer parity unit established under
paragraph (7) information on audits and
investigations of group health plans and health
insurance issuers conducted under this section.
Such information shall not contain any
personally identifiable information.
``(iii) Audits.--
``(I) Randomized audits.--The
Secretary, in cooperation with the
Secretaries of Labor and the Treasury,
may conduct randomized audits of group
health plans or health insurance
issuers offering group or individual
health insurance coverage to determine
compliance with this section. Such
audits shall be conducted on not fewer
than 12 plans and issuers per plan
year. Information from such audits
shall be made plainly available on the
website of the consumer parity unit
established under paragraph (7).
``(II) Additional audits.--In the
case of a group health plan or health
insurance issuer offering group or
individual health insurance coverage
with respect to which any claim has
been filed during a plan year, the
Secretary may audit the books and
records of such plan or issuer to
determine compliance with this section.
Information detailing the results of
the audit shall be made available on
the website of the consumer parity unit
established under paragraph (7).
``(7) Consumer parity unit.--
``(A) In general.--The Secretary, in cooperation
with the Secretaries of Labor and the Treasury, shall
establish a consumer parity unit (referred to in this
paragraph as the `unit') with functions that include--
``(i) developing and administering a
single, toll-free telephone number, an Internet
website, and a database, or using an existing
database, to facilitate the centralized
collection of, monitoring of, and response to
consumer complaints or inquiries regarding
violations of this section, section 712 of the
Employee Retirement Income Security Act of 1974
or section 9812(a)(6) of the Internal Revenue
Code of 1986; and
``(ii) providing information to health care
consumers that is submitted to the Secretary,
the Secretary of Labor, and the Secretary of
the Treasury under paragraph (6), section
712(a)(6) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1185a(a)(6)),
or section 9812(a)(6) of the Internal Revenue
Code of 1986, respectively.
``(B) Response to consumer complaints and
inquiries.--
``(i) Timely response to consumers.--The
Secretary of Health and Human Services, in
cooperation with the Secretaries of Labor and
the Treasury, shall establish reasonable
procedures to provide a timely response (in
writing if appropriate) to consumers regarding
complaints received by the unit against, or
inquiries concerning, a group health plan or
health insurance issuer offering group or
individual health insurance coverage,
including--
``(I) steps that have been taken by
the appropriate State or Federal
enforcement agency in response to the
complaint or inquiry of the consumer;
``(II) any responses received by
the appropriate State or Federal
enforcement agency from the group
health plan or health insurance issuer
offering group or individual health
insurance coverage;
``(III) any follow-up actions or
planned follow-up actions by the
appropriate regulator in response to
the complaint or inquiry of the
consumer; and
``(IV) contact information of the
appropriate enforcement agency for the
consumer to follow up on the complaint
or inquiry.
``(ii) Timely response to regulators.--A
group health plan or health insurance issuer
offering group or individual health insurance
coverage shall provide a timely response (in
writing if appropriate) to the appropriate
State or Federal enforcement agency having
jurisdiction over such plan or issuer
concerning a consumer complaint or inquiry
submitted to the unit including--
``(I) steps that have been taken by
the plan or issuer to respond to the
complaint or inquiry of the consumer;
``(II) any responses received by
the plan or issuer from the consumer;
and
``(III) follow-up actions or
planned follow-up actions by the plan
or issuer in response to the complaint
or inquiry of the consumer.''; and
(2) by adding at the end the following:
``(f) Annual Reports.--
``(1) Provision of information by states.--Not later than
December 31, 2017, and annually thereafter, each State health
insurance commissioner shall submit to the Secretary a report
on compliance with this section of group health plans or health
insurance issuers offering group or individual health insurance
coverage in such State.
``(2) Requirement of comparison.--To ensure that group
health plans or health insurance issuers offering group or
individual health insurance coverage provide comparable
coverage for mental health and substance use disorder benefits
in accordance with this section, as part of the report
submitted under paragraph (1), a State health insurance
commissioner shall compare the financial requirements and
treatment limitations imposed by such issuers and plans for
mental health and substance use disorder services and those
requirements and limitations imposed by such issuers and plans
on medical and surgical benefits.
``(3) Contents of reports.--The reports submitted under
paragraph (1) shall be made publicly available on the website
of the consumer parity unit established under subsection (a)(7)
and include the following information, broken down for each
group health plan or health insurance issuer offering group or
individual health insurance coverage:
``(A) The mental health and substance use disorder
benefits provided by the plan or issuer.
``(B) New mental health or substance use disorder
treatments that have been approved for coverage.
``(C) Standards for admission to plan provider
networks, including reimbursement rates, and an
accurate, up-to-date provider network listing,
including information on which providers are accepting
new patients.
``(D) Non-quantitative treatment limitations on
coverage, including--
``(i) medical management standards limiting
or excluding benefits based on medical
necessity or medical appropriateness, or based
on whether a treatment is experimental or
investigative;
``(ii) formulary design for prescription
drugs;
``(iii) plan methods used to determine
usual, customary, and reasonable fee charges;
``(iv) refusal to pay for higher-cost
therapies until it can be shown that a lower-
cost therapy is not effective (also known as
`fail-first policies or step therapy
protocols');
``(v) exclusions based on failure to
complete a course of treatment; and
``(vi) restrictions based on geographic
location, facility type, provider specialty,
and other criteria that might otherwise limit
the scope or duration of benefits.
``(E) Information needed to calculate out-of-pocket
costs.''.
(b) Employee Retirement Income Security Act of 1974.--Section
712(a) of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1185a(a)) is amended by adding at the end the following:
``(6) Disclosure and enforcement requirements.--
``(A) Disclosure requirements.--
``(i) Regulations.--Not later than June 30,
2016, the Secretary, in cooperation with the
Secretaries of Health and Human Services and
the Treasury, as appropriate, shall issue
additional regulations for carrying out this
section, including an explanation of documents
that must be disclosed by group health plans
(or health insurance coverage offered in
connection with such plans), the process
governing the disclosure of such documents, and
analyses that must be conducted by such plans
or coverage to comply with this section.
``(ii) Requirements.--A group health plan
(or health insurance coverage offered in
connection with such a plan) shall disclose to
the Secretary in a standardized format
documents that include--
``(I) the specific analyses
performed to ensure compliance with
this section and any regulations
promulgated pursuant to this section;
``(II) a description of the
application of non-quantitative
treatment limitations (in this
paragraph referred to as `NQTLs') to
benefits under such plan or coverage,
including--
``(aa) the specific factors
the plan or coverage used in
performing its NQTLs analysis;
``(bb) the specific
evidentiary standards relied on
to evaluate such factors;
``(cc) how the evidentiary
standards are applied to each
service category for mental
health, substance use
disorders, medical benefits,
and surgical benefits;
``(dd) a disclosure of the
results of the analyses of the
specific evidentiary standards
in each service category; and
``(ee) a disclosure of the
specific findings of such plan
or coverage in each service
category and the conclusions
reached with respect to whether
the processes, strategies,
evidentiary standards, or other
factors used in applying NQTLs
to mental health or substance
use disorder benefits are
comparable to, and applied no
more stringently than, the
processes, strategies,
evidentiary standards, or other
factors used in applying NQTLs
with respect to medical and
surgical benefits in the same
classification; and
``(III) the rates of and reasons
for denial by the plan or coverage for
outpatient and inpatient mental health
and substance use disorder services
compared to the rates of and reasons
for denial of claims for medical and
surgical services.
``(iii) Guidance.--The Secretary, in
cooperation with the Secretaries of Health and
Human Services and the Treasury, as
appropriate, shall issue guidance to group
health plans (and health insurance coverage
offered in connection with such plans) on how
to satisfy the requirements of this section
with respect to making information available to
current and potential participants and
beneficiaries. Such information shall include
certificate of coverage documents and
instruments under which the plan or coverage
involved is administered and operated that
specify, include, or refer to procedures,
formulas, and methodologies applied to
determine a participant or beneficiary's
benefit under the plan or coverage, regardless
of whether such information is contained in a
document designated as the `plan document'.
Such guidance shall include a disclosure of how
the plan or coverage involved has provided that
processes, strategies, evidentiary standards,
and other factors used in applying the NQTL to
mental health or substance use disorder
benefits are comparable to, and applied no more
stringently than, the processes, strategies,
evidentiary standards, or other factors used in
applying the limitation with respect to medical
and surgical benefits in the same
classification.
``(iv) Definitions.--In this paragraph, the
terms `non-quantitative treatment limitations',
`comparable to', and `applied no more
stringently than' have the meanings given such
terms in parts 146 and 147 of title 45, Code of
Federal Regulations (or any successor
regulation).
``(B) Enforcement.--
``(i) Process for complaints.--The
Secretary, in cooperation with the Secretaries
of Health and Human Services and the Treasury,
as appropriate, shall issue 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) of group health plans (or health
insurance coverage offered in connection with
such a plan) to file formal complaints of such
plans or coverage being in violation of this
section, including guidance, by plan type, on
the relevant State, regional, and national
offices with which such complaints should be
filed.
``(ii) Authority for public enforcement.--
The Secretary, in consultation with the
Secretaries of Labor and the Treasury, shall
make available to the public on the website of
the consumer parity unit established under
section 2726(a)(7) of the Public Health Service
Act information on audits and investigations of
group health plans (and health insurance
coverage offered in connection with such plans)
conducted under this section. Such information
shall not contain any personally identifiable
information.
``(iii) Audits.--
``(I) Randomized audits.--The
Secretary, in cooperation with the
Secretaries of Health and Human
Services and the Treasury, may conduct
randomized audits of group health plans
(and health insurance coverage offered
in connection with such plans) to
determine compliance with this section.
Such audits shall be conducted on not
fewer than 12 plans and coverages per
plan year. Information from such audits
shall be made plainly available on the
website of the consumer parity unit
established under section 2726(a)(7) of
the Public Health Service Act.
``(II) Additional audits.--In the
case of a group health plan (and health
insurance coverage offered in
connection with such a plan) with
respect to which any claim has been
filed during a plan year, the Secretary
may audit the books and records of such
plan or coverage to determine
compliance with this section.
Information detailing the results of
the audit shall be made available on
the website of the consumer parity unit
established under section 2726(a)(7) of
the Public Health Service Act.''.
(c) Internal Revenue Code of 1986.--Section 9812(a) of the Internal
Revenue Code of 1986 is amended by adding at the end the following:
``(6) Disclosure and enforcement requirements.--
``(A) Disclosure requirements.--
``(i) Regulations.--Not later than June 30,
2016, the Secretary, in cooperation with the
Secretaries of Health and Human Services and
Labor, as appropriate, shall issue additional
regulations for carrying out this section,
including an explanation of documents that must
be disclosed by group health plans, the process
governing the disclosure of such documents, and
analyses that must be conducted by such plans
to comply with this section.
``(ii) Requirements.--A group health plan
shall disclose to the Secretary in a
standardized format documents that include--
``(I) the specific analyses
performed to ensure compliance with
this section and any regulations
promulgated pursuant to this section;
``(II) a description of the
application of non-quantitative
treatment limitations (in this
paragraph referred to as `NQTLs') to
benefits under such group health plan,
including--
``(aa) the specific factors
the plan used in performing its
NQTLs analysis;
``(bb) the specific
evidentiary standards relied on
to evaluate such factors;
``(cc) how the evidentiary
standards are applied to each
service category for mental
health, substance use
disorders, medical benefits,
and surgical benefits;
``(dd) a disclosure of the
results of the analyses of the
specific evidentiary standards
in each service category; and
``(ee) a disclosure of the
specific findings of such plan
in each service category and
the conclusions reached with
respect to whether the
processes, strategies,
evidentiary standards, or other
factors used in applying NQTLs
to mental health or substance
use disorder benefits are
comparable to, and applied no
more stringently than, the
processes, strategies,
evidentiary standards, or other
factors used in applying NQTLs
with respect to medical and
surgical benefits in the same
classification; and
``(III) the rates of and reasons
for denial by the plan for outpatient
and inpatient mental health and
substance use disorder services
compared to the rates of and reasons
for denial of claims for medical and
surgical services.
``(iii) Guidance.--The Secretary, in
cooperation with the Secretaries of Health and
Human Services and Labor, as appropriate, shall
issue guidance to group health plans on how to
satisfy the requirements of this section with
respect to making information available to
current and potential participants and
beneficiaries. Such information shall include
certificate of coverage documents and
instruments under which the plan involved is
administered and operated that specify,
include, or refer to procedures, formulas, and
methodologies applied to determine a
participant or beneficiary's benefit under the
plan, regardless of whether such information is
contained in a document designated as the `plan
document'. Such guidance shall include a
disclosure of how the plan involved has
demonstrated that processes, strategies,
evidentiary standards, and other factors used
in applying NQTLs to mental health or substance
use disorder benefits are comparable to, and
applied no more stringently than, the
processes, strategies, evidentiary standards,
or other factors used in applying NQTLs with
respect to medical and surgical benefits in the
same classification.
``(iv) Definitions.--In this paragraph, the
terms `non-quantitative treatment limitations',
`comparable to', and `applied no more
stringently than' have the meanings given such
terms in parts 146 and 147 of title 45, Code of
Federal Regulations (or any successor
regulation).
``(B) Enforcement.--
``(i) Process for complaints.--The
Secretary, in cooperation with the Secretaries
of Health and Human Services and Labor, as
appropriate, shall, with respect to group
health plans, issue 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 such plans to file formal complaints
of such plans being in violation of this
section, including guidance, by plan type, on
the relevant State, regional, and national
offices with which such complaints should be
filed.
``(ii) Authority for public enforcement.--
The Secretary, in consultation with the
Secretaries of Labor and the Treasury, shall
make available to the public on the website of
the consumer parity unit established under
section 2726(a)(7) of the Public Health Service
Act information on audits and investigations of
group health plans conducted under this
section. Such information shall not contain any
personally identifiable information.
``(iii) Audits.--
``(I) Randomized audits.--The
Secretary, in cooperation with the
Secretaries of Health and Human
Services and Labor, is authorized to
conduct randomized audits of group
health plans to determine compliance
with this section. Such audits shall be
conducted on not fewer than 12 plans
per plan year. Information from such
audits shall be made plainly available
on the website of the consumer parity
unit established under section
2726(a)(7) of the Public Health Service
Act.
``(II) Additional audits.--In the
case of a group health plan with
respect to which any claim has been
filed during a plan year, the Secretary
may audit the books and records of such
plan to determine compliance with this
section. Information detailing the
results of the audit shall be made
available on the website of the
consumer parity unit established under
section 2726(a)(7) of the Public Health
Service Act.''.
(d) GAO Study on Mental Health and Substance Use Parity Enforcement
Efforts.--Not later than 1 year after the date of enactment of this
Act, the Comptroller General of the United States, in consultation with
the Secretary of Health and Human Services, the Secretary of Labor, and
the Secretary of the Treasury, shall submit to Congress, and make
plainly available on the website of the consumer parity unit
established under section 2726(a)(7) of the Public Health Service Act
(42 U.S.C. 300gg-26(a)(7)), as added by subsection (a), a report
detailing the enforcement efforts of the responsible departments and
agencies in implementing sections 2726 of the Public Health Service
Act, 712 of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1185a), and 9812 of the Internal Revenue Code of 1986,
including--
(1) the number of investigations and audits that have been
conducted into potential parity violations;
(2) the number of enforcement actions carried out as a
result of any such investigation or audit; and
(3) details on any such investigation, audit, or
enforcement action that do not contain any personally
identifiable information.
(e) Authorization of Appropriations.--There is authorized to be
appropriated $2,000,000 for each of fiscal years 2016 through 2020 to
carry out this section, including the amendments made by this section.
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