FAQS ABOUT MENTAL HEALTH AND 
SUBSTANCE USE DISORDER PARITY 
ST
IMPLEMENTATION AND THE 21  CENTURY 
CURES ACT PART 38 
 
June 16, 2017  
 
Set out below is an additional frequently asked question (FAQ) regarding implementation of the 
Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 
(MHPAEA), as amended by the Affordable Care Act and the 21st Century Cures Act (Cures 
Act). This FAQ has been prepared jointly by the Departments of Labor (DOL), Health and 
Human Services (HHS), and the Treasury (collectively, the Departments).  Like previously 
issued FAQs (available at www.dol.gov/ebsa/healthreform/index.html and 
www.cms.gov/cciio/resources/fact-sheets-and-faqs/index.html), the FAQ answers questions from 
stakeholders to help people understand the law and benefit from it, as intended.  This FAQ also 
contains two separate requests for comments, as described below. 
 
Mental Health Parity and Addiction Equity Act of 2008 and the 21st Century Cures Act  
 
Generally, MHPAEA requires that the financial requirements and treatment limitations imposed 
on mental health and substance use disorder (MH/SUD) benefits cannot be more restrictive than 
the predominant financial requirements and treatment limitations that apply to substantially all 
medical and surgical benefits.  MHPAEA also imposes several disclosure requirements on group 
health plans and health insurance issuers. The Cures Act was enacted on December 13, 2016.  
Among other things, the Cures Act contains provisions that are intended to improve compliance 
with MHPAEA by requiring the Departments to solicit feedback from the public on how to 
improve disclosure of the information required under MHPAEA and other laws.  
 
Disclosures with Respect to MH/SUD Benefits, Including Request for Comments 
 
The Departments have issued multiple pieces of guidance to address disclosure obligations under 
MHPAEA and other laws. The MHPAEA provisions and implementing regulations expressly 
provide that a plan or issuer must disclose the criteria for medical necessity determinations with 
respect to MH/SUD benefits to any current or potential participant, beneficiary, or contracting 
provider upon request and must make available the reason for any denial of reimbursement or 
payment for services with respect to MH/SUD benefits to the participant or beneficiary. The 
Departments, however, recognize that additional information regarding medical/surgical benefits 
is necessary to perform the required MHPAEA analyses.1 Accordingly, the Departments have 
                                                            
1 See Internal Revenue Code (Code) section 9812(a)(4), Employee Retirement Income Security Act (ERISA) section 
712(a)(4); Public Health Service Act (PHS Act) section 2726(a)(4).  See also 26 CFR 54.9812-1(d); 29 CFR 
2590.712(d); 45 CFR 146.136(d) and 147.160.  clarified in previous regulations and guidance the breadth of disclosure required, as well as 
which documents participants, beneficiaries, and their authorized representatives have a right to 
receive (and generally may find helpful) under MHPAEA, the Employee Retirement Income 
Security Act (ERISA),2 and the Affordable Care Act.3 For example, plans subject to ERISA are 
required to provide participants, upon request, with information about the processes, strategies, 
evidentiary standards, and other factors used to apply a nonquantitative treatment limitation 
(NQTL) with respect to medical/surgical benefits and MH/SUD benefits under the plan.   
 
On October 27, 2016, the Departments issued Affordable Care Act Implementation FAQs Part 
34, which, among other things, solicited feedback regarding disclosures with respect to MH/SUD 
benefits under MHPAEA and other laws.4  In the FAQs, the Departments indicated that they had 
received questions and suggestions regarding disclosures with respect to NQTLs.  This feedback 
included requests for model forms that group health plan participants, beneficiaries, covered 
individuals in the individual market, or persons acting on their behalf could use to request 
relevant disclosures.  The feedback also included requests for guidance on other ways in which 
disclosures, or the process for requesting disclosures, could be more uniform, streamlined, or 
otherwise simplified.   
 
In addition, the Departments indicated that they had received requests to explore ways to 
encourage uniformity among State reviews of health insurance issuers compliance with the 
NQTL standards. The Departments indicated that various stakeholders stated that model forms to 
report NQTL information will help facilitate uniform implementation and enforcement of 
MHPAEA, and relieve some complexity that MHPAEA compliance poses for issuers operating 
in multiple States. Furthermore, other stakeholders highlighted that the use of such model forms 
may also benefit consumers, as consumers will be entitled to request the analysis performed to 
complete the model forms.   
 
                                                            
2 ERISAs general disclosure obligation in section 104(b) and the accompanying disclosure regulation at 29 CFR 
2520.104b-1 provide that, for plans subject to ERISA, instruments under which the plan is established or operated 
must generally be furnished to plan participants within 30 days of request. 
3 See Code sections 9812(a)(4) and 9815; ERISA sections 104(b), 502(c), 503, 712(a)(4) and 715; PHS Act sections 
2726(a)(4) and 2719; See also 26 CFR 54.9812-1(d)(3) and 54.9815-2719; 29 CFR 2520.104b-1, 2560.503-1, 
2590.712(d)(3) and 2590.715-2719; 45 CFR 146.136(d)(3), 147.136 and 147.160; See also 78 FR 68240, 68247 
(Nov. 13, 2013);  See also Affordable Care Implementation FAQs, Part V, Q&A-10, available at 
https://www.dol.gov/ebsa/faqs/faq-aca5.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/aca_implementation_faqs5.html; See also Affordable Care Act Implementation FAQs, Part XVII, Q&A-8, 
available at https://www.dol.gov/ebsa/faqs/faq-aca17.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-
and-FAQs/aca_implementation_faqs17.html; See also Affordable Care Act Implementation FAQs, Part XXIX, 
Q&A-12 and 13, available at https://www.dol.gov/ebsa/faqs/faq-aca29.html and 
https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-Part-XXIX.pdf; See also 
Affordable Care Implementation FAQs, Part 31, Q&A-9, available at https://www.dol.gov/ebsa/faqs/faq-aca31.html 
and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-31_Final-4-20-16.pdf.    
4 See Affordable Care Act Implementation FAQs, Part 34, Q&A-1, available at https://www.dol.gov/ebsa/faqs/faq-
aca19.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQ-part-34_10-26-
16_FINAL.PDF.   
2 
 
  Accordingly, in Affordable Care Act Implementation FAQs Part 34, the Departments requested 
specific comments on: 
 
a)  Whether issuance of model forms that could be used by participants and their 
representatives to request information with respect to various NQTLs would be 
helpful and, if so, what content the model forms should include.  For example, is 
there a specific list of documents, relating to specific NQTLs, that a participant or his 
or her representative should request?   
 
b)  Do different types of NQTLs require different model forms?  For example, should 
there be separate model forms for specific information about medical necessity 
criteria, fail-first policies, formulary design, or the plans method for determining 
usual, customary, or reasonable charges?  Should there be a separate model form for 
plan participants and other individuals to request the plans analysis of its MHPAEA 
compliance? 
 
c)  Whether issuance of model forms that could be used by States as part of their review 
would be helpful and, if so, what content the model form should include. For 
example, what specific content should the form include to assist the States in 
determining compliance with the NQTL standards?  Should the form focus on 
specific classifications or categories of services? Should the form request information 
on particular NQTLs? 
 
d)  What other steps can the Departments take to improve the scope and quality of 
disclosures or simplify or otherwise improve processes for requesting disclosures 
under existing law in connection with MH/SUD benefits? 
 
e)  Are there specific steps that could be taken to improve State market conduct 
examinations and/or Federal oversight of compliance by plans and issuers? 
 
Requirements in the 21st Century Cures Act Related to MHPAEA Disclosures 
 
Federal or State law requires group health plans and health insurance issuers to disclose certain 
documents to participants and beneficiaries, contracting providers, or authorized representatives 
to ensure compliance with MHPAEA.  Section 13001(c)(1) of the Cures Act directs the 
Departments to solicit feedback from the public on how to improve this disclosure request 
process, while ensuring consumers have access to all information required to be disclosed.  
Section 13001(c)(2) of the Cures Act directs the Departments to make this feedback publicly 
available by December 13, 2017.5   
                                                            
5 In addition, section 13001(c)(3) of the Cures Act directs the Departments to share this feedback with the National 
Association of Insurance Commissioners (NAIC) to the extent it includes recommendations for the development of 
simplified information disclosure tools to provide consistent information to consumers. Such feedback may be taken 
 
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Solicitation of Comments 
 
As required under the Cures Act, the Departments are again soliciting comments on the 
questions and issues listed above that were previously raised in Affordable Care Act 
Implementation FAQs Part 34.   
 
In addition, in furtherance of the questions raised in (a) and (b) above, the Departments are 
soliciting comments on a draft model form that participants, enrollees, or their authorized 
representatives could -- but would not be required to -- use to request information from their 
health plan or issuer regarding NQTLs that may affect their MH/SUD benefits, or to obtain 
documentation after an adverse benefit determination involving MH/SUD benefits to support an 
appeal. A copy of that draft model form, as well as instructions and deadlines for commenting on 
it, can be found at https://www.cms.gov/Regulations-and-
Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html or 
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-and-substance-use-
disorder-parity. Comments are requested on any aspect of the draft model form, including ways 
to reduce burden on individuals, families, health care providers, States, group health plans, health 
insurance issuers, and other stakeholders, as well as the use of alternate means of receiving 
information requests from consumers.   
 
Please send comments on these disclosure issues to e-ohpsca-mhpaea-disclosure@dol.gov by 
September 13, 2017.  All comments will be shared among the Departments.   
 
Treatment for Eating Disorders, Including Request for Comments 
 
Section 13007 of the Cures Act requires that if a group health plan or a health insurance issuer 
provides coverage for eating disorder benefits, the group health plan or issuer must provide the 
benefits consistent with the requirements of MHPAEA. In light of this provision of the Cures 
Act, the Departments are issuing the following FAQ and soliciting comments regarding whether 
any additional clarification is needed regarding how the requirements of MHPAEA apply to 
treatment for eating disorders.   
 
Q1: Does MHPAEA apply to any benefits a plan or issuer may offer for treatment of an 
eating disorder?  
 
Yes. The Departments regulations implementing MHPAEA define mental health benefits as 
benefits with respect to items or services for mental health conditions, as defined under the terms 
of the plan or health insurance coverage and in accordance with applicable Federal and State law, 
which must be defined to be consistent with generally recognized independent standards of 
                                                                                                                                                                                                
into consideration by the NAIC and other appropriate entities for the voluntary development and voluntary use of 
common templates and other sample standardized forms to improve consumer access to plan information. 
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  current medical practice.6 Eating disorders are mental health conditions and therefore treatment 
of an eating disorder is a mental health benefit within the meaning of that term as defined by 
MHPAEA.  
 
Furthermore, in light of section 13007 of the Cures Act, the Departments request comments on 
whether any additional clarification is needed regarding how the requirements of MHPAEA 
apply to treatment for eating disorders.  
 
Please send comments with respect to eating disorders to e-ohpsca-mhpaea-eating-
disorders@dol.gov by September 13, 2017. All  comments will be shared among the 
Departments. 
 
 
                                                            
6 26 CFR 54.9812-1(a); 29 CFR 2590.712(a); 45 CFR 146.136(a).   
5