FAQS ABOUT MENTAL HEALTH AND SUBSTANCE 
USE DISORDER PARITY IMPLEMENTATION AND THE 
CONSOLIDATED APPROPRIATIONS ACT, 2021 PART 45  
 
April 2, 2021 
 
The Consolidated Appropriations Act, 2021 (the Appropriations Act) amended the Mental Health Parity 
and Addiction Equity Act of 2008 (MHPAEA) to provide important new protections.  The Departments of 
Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) have 
jointly prepared this document to help stakeholders understand these amendments.  Previously issued 
Frequently Asked Questions (FAQs) related to MHPAEA are available at 
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-and-substance-use-disorder-
parityand https://www.cms.gov/cciio/resources/fact-sheets-and-faqs#Mental_Health_Parity.      
Mental Health Parity and Addiction Equity Act of 2008  
MHPAEA generally provides that financial requirements (such as coinsurance and copays) and treatment 
limitations (such as visit limits) imposed on mental health or substance use disorder (MH/SUD) benefits 
cannot be more restrictive than the predominant financial requirements and treatment limitations that apply 
to substantially all medical/surgical benefits in a classification.1 In addition, MHPAEA prohibits separate 
treatment limitations that apply only to MH/SUD benefits.  MHPAEA also imposes several important 
disclosure requirements on group health plans and health insurance issuers. 
The MHPAEA final regulations require that a group health plan or health insurance issuer may not impose a 
non-quantitative treatment limitation (NQTL) with respect to MH/SUD benefits in any classification unless, 
under the terms of the plan (or health insurance coverage) as written and in operation, any processes, 
strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in the 
classification are comparable to, and are applied no more stringently than, the processes, strategies, 
evidentiary standards, or other factors used in applying the limitation to medical/surgical benefits in the 
same classification.2   Under this analysis, the focus is not on whether the final result is the same for 
MH/SUD benefits as for medical/surgical benefits, but rather on whether the underlying processes, 
strategies, evidentiary standards, and other factors are in parity.  These processes, strategies, evidentiary 
standards, and other factors must be comparable and applied no more stringently for MH/SUD benefits than 
for medical/surgical benefits.   
Since the enactment of MHPAEA, the Departments have issued guidance and compliance assistance 
materials to help stakeholders understand the law and its implementing regulations, including the 
requirements for NQTLs.  Most recently, in September 2019, the Departments issued Final FAQs part 39.3
In an effort to promote compliance, the FAQs provided additional examples regarding how the NQTL 
requirements in the MHPAEA final regulations apply to different fact patterns. 
The DOL also maintains on its website a MHPAEA Self-Compliance Tool that is intended to help group 
health plan sponsors and administrators, health insurance issuers, State regulators, and other stakeholders 
determine whether a group health plan or health insurance issuer complies with MHPAEA.4 The MHPAEA 
                                                           
1 The six classifications of benefits defined in final regulations implementing the requirements of MHPAEA are: (1) inpatient, in-
network; (2) inpatient, out-of-network; (3) outpatient, in-network; (4) outpatient, out-of-network; (5) emergency care; and (6) 
prescription drugs. 26 CFR 54.9812-1(c)(2)(ii); 29 CFR 2590.712(c)(2)(ii); and 45 CFR 146.136(c)(2)(ii). 
2 26 CFR 54.9812-1(c)(4)(i); 29 CFR 2590.712(c)(4)(i); and 45 CFR 146.136(c)(4)(i) and 147.160. 
3 FAQs about Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act Part 39 (Sept. 5, 
2019), available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-39-final.pdf
and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-Part-39.pdf. 
4 2020 MHPAEA Self-Compliance Tool, available at https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-
regulations/laws/mental-health-parity/self-compliance-tool.pdf.  Self-Compliance Tool includes a section on NQTLs that outlines a process for conducting comparative 
analyses of NQTLs.  The MHPAEA Self-Compliance Tool is updated every two years and was most 
recently updated in 2020 by the DOL (in coordination with the Department of the Treasury and HHS).   
The Consolidated Appropriations Act, 2021  
The Consolidated Appropriations Act, 2021 was enacted on December 27, 2020.5 Section 203 of Title II of 
Division BB of the Appropriations Act amended MHPAEA, in part, by expressly requiring group health 
plans and health insurance issuers offering group or individual health insurance coverage that offer both 
medical/surgical benefits and MH/SUD benefits and that impose NQTLs on MH/SUD benefits to perform 
and document their comparative analyses of the design and application of NQTLs.  Further, beginning 45 
days after the date of enactment of the Appropriations Act, these plans and issuers must make their 
comparative analyses available to the Departments or applicable State authorities, upon request, including 
the following information: 
1.  The specific plan or coverage terms or other relevant terms regarding the NQTLs and a description 
of all MH/SUD and medical or surgical benefits to which each such term applies in each respective 
benefits classification; 
2.  The factors used to determine that the NQTLs will apply to MH/SUD benefits and medical or 
surgical benefits; 
3.  The evidentiary standards used for the factors identified, when applicable, provided that every 
factor shall be defined, and any other source or evidence relied upon to design and apply the 
NQTLs to MH/SUD benefits and medical or surgical benefits; 
4.  The comparative analyses demonstrating that the processes, strategies, evidentiary standards, and 
other factors used to apply the NQTLs to MH/SUD 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/surgical benefits in the benefits 
classification; and 
5.  The specific findings and conclusions reached by the plan or issuer, including any results of the 
analyses that indicate that the plan or coverage is or is not in compliance with the MHPAEA 
requirements.6
The Appropriations Act also provides that the Departments shall request that a group health plan or issuer 
submit the comparative analyses for plans that involve potential MHPAEA violations or complaints 
regarding noncompliance with MHPAEA that concern NQTLs, and any other instances in which the 
Departments determine appropriate.7
The Appropriations Act further requires the Departments, after review of the comparative analyses, to share 
information on findings of compliance and noncompliance with the State where the plan is located or the 
State where the issuer is licensed to do business.  Additionally, not later than one year after enactment of the 
Appropriations Act and annually by October 1 thereafter, the Departments must submit to Congress and 
make publicly available a report that sets forth: 
1.  A summary of the comparative analyses requested, including the identity of each plan or issuer that 
is determined not to be in compliance after a final determination; 
                                                           
5 Pub. L. 116-260 (Dec. 27, 2020). 
6 Internal Revenue Code (Code) section 9812(a)(8)(A)(i)-(iv), ERISA Section 712(a)(8)(A)(i)-(iv) and Public Health Service (PHS) 
Act section 2726(a)(8)(A)(i)-(iv). 
7 Code section 9812(a)(8)(B)(i), ERISA section 712(a)(8)(B)(i), and PHS Act section 2726(a)(8)(B)(i). 
2  2.  The Departments conclusions as to whether each plan or issuer submitted sufficient information 
for the Departments to review the comparative analyses requested; 
3.  For each plan or issuer that submitted sufficient information for the Departments to review the 
comparative analyses requested, the Departments conclusion as to whether and why the plan or 
issuer is in compliance with the disclosure requirements of MHPAEA; 
4.  The Departments specifications for each plan or issuer that did not submit sufficient information 
for the Departments to review the comparative analyses for compliance; and 
5.  The Departments specifications of the actions each plan or issuer that the Departments determined 
is not in compliance must take to be in compliance with MHPAEA, including the reason the 
Departments determined the plan or issuer was not in compliance. 
Q1:  When must plans and issuers make available their NQTL comparative analyses, as 
required by the Appropriations Act?  
Plans and issuers that offer both medical/surgical benefits and MH/SUD benefits and impose NQTLs must 
make their comparative analyses of the design and application of NQTLs available to the Departments or 
applicable State authorities upon request, beginning 45 days after the date of enactment of the 
Appropriations Act. Because the Appropriations Act was enacted on December 27, 2020, the requirement 
applies beginning February 10, 2021.  Accordingly, plans and issuers should now be prepared to make their 
comparative analyses available upon request. 
Q2:  What information must plans and issuers make available in response to the 
Departments requests for documentation of their comparative analyses?   
Plans and issuers should ensure that comparative analyses are sufficiently specific, detailed, and reasoned to 
demonstrate whether the processes, strategies, evidentiary standards, or other factors used in developing and 
applying an NQTL are comparable and applied no more stringently to MH/SUD benefits than to 
medical/surgical benefits, as described further below.  To that end, a general statement of compliance, 
coupled with a conclusory reference to broadly stated processes, strategies, evidentiary standards, or other 
factors is insufficient to meet this statutory requirement. 
As explained above, the DOLs MHPAEA Self-Compliance Tool includes robust guidance related to 
requirements for NQTLs and outlines a process for analyzing whether a particular NQTL meets those 
requirements.  It also includes numerous examples and compliance tips that may be helpful to plans and 
issuers regarding how to conduct comparative analyses of NQTLs, along with potential warning signs that 
may be indicative of noncompliance and warrant further review.  In particular, the Self-Compliance Tool 
outlines four steps that plans and issuers should take to assess their compliance with MHPAEA for NQTLs.  
For each step, the Self-Compliance Tool also identifies certain information to support the analysis and the 
conclusions reached about whether the plan or coverage complies with MHPAEA.  This information closely 
aligns with the information, outlined in the next paragraph, that plans and issuers must include as part of 
their comparative analyses.  Therefore, plans and issuers that have carefully applied the guidance in the 
Self-Compliance Tool should be in a strong position to comply with the Appropriation Acts requirement to 
submit comparative analyses upon request.  The MHPAEA Self-Compliance Tool was last updated in 2020, 
before the enactment of the Appropriations Act, and it recommends that plans and issuers analyze NQTLs 
and document those analyses as a best practice.  However, the Appropriations Act expressly requires that 
plans and issuers now conduct and document comparative analyses of the design and application of NQTLs.  
Therefore, this process is no longer a best practice; it is required.   
3  Under the Appropriations Act, plans and issuers must now be prepared to submit their comparative analysis 
with respect to each NQTL imposed when requested by any of the Departments or by an applicable State 
authority.  For an analysis to be treated as sufficient under the Appropriations Act, it must contain a 
detailed, written, and reasoned explanation of the specific plan terms and practices at issue, and include the 
bases for the plans or issuers conclusion that the NQTLs comply with MHPAEA. At a minimum, 
sufficient analyses must include a robust discussion of all of the elements listed below.    
1.  A clear description of the specific NQTL, plan terms, and policies at issue. 
2.  Identification of the specific MH/SUD and medical/surgical benefits to which the NQTL applies 
within each benefit classification, and a clear statement as to which benefits identified are treated as 
MH/SUD and which are treated as medical/surgical. 
3.  Identification of any factors, evidentiary standards or sources, or strategies or processes considered 
in the design or application of the NQTL and in determining which benefits, including both 
MH/SUD benefits and medical/surgical benefits, are subject to the NQTL.  Analyses should explain 
whether any factors were given more weight than others and the reason(s) for doing so, including 
an evaluation of any specific data used in the determination. 
4.  To the extent the plan or issuer defines any of the factors, evidentiary standards, strategies, or 
processes in a quantitative manner, it must include the precise definitions used and any supporting 
sources.   
5.  The analyses, as documented, should explain whether there is any variation in the application of a 
guideline or standard used by the plan or issuer between MH/SUD and medical/surgical benefits 
and, if so, describe the process and factors used for establishing that variation. 
6.  If the application of the NQTL turns on specific decisions in administration of the benefits, the plan 
or issuer should identify the nature of the decisions, the decision maker(s), the timing of the 
decisions, and the qualifications of the decision maker(s). 
7.  If the plans or issuers analyses rely upon any experts, the analyses, as documented, should include 
an assessment of each experts qualifications and the extent to which the plan or issuer ultimately 
relied upon each experts evaluations in setting recommendations regarding both MH/SUD and 
medical/surgical benefits. 
8.  A reasoned discussion of the plans or issuers findings and conclusions as to the comparability of 
the processes, strategies, evidentiary standards, factors, and sources identified above within each 
affected classification, and their relative stringency, both as applied and as written.  This discussion 
should include citations to any specific evidence considered and any results of analyses indicating 
that the plan or coverage is or is not in compliance with MHPAEA. 
9.  The date of the analyses and the name, title, and position of the person or persons who performed or 
participated in the comparative analyses.8
                                                           
8 Code section 9812(a)(8)(B)(ii), ERISA section 712(a)(8)(B)(ii), and PHS Act section 2726(a)(8)(B)(ii); see also the 2020 
MHPAEA Self-Compliance Tool, available at https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-
health-parity/self-compliance-tool.pdf, at pg. 34 (discussing the types of information a group health plan might be asked to provide 
if audited by DOL investigators for MHPAEA compliance). 
4  Q3:  What are examples of reasons why the Departments might conclude that documentation 
of comparative analyses of NQTLs is insufficiently specific and detailed? 
As noted above, a general statement of compliance, coupled with a conclusory reference to broadly stated 
processes, strategies, standards, or other factors is not sufficient.  Accordingly, comparative analyses that 
consist of conclusory or generalized statements without specific supporting evidence and detailed 
explanations or a mere production of a large volume of documents without a clear explanation of how and 
why each document is relevant to the comparative analyses are insufficient.  Analyses that are sufficient 
include all the elements set forth in the response to Q2.  
In past investigations relating to NQTLs, the Departments have observed the following practices and 
procedures, which plans and issuers should avoid in responding to requests for comparative analyses 
because they are insufficient:  
1.  Production of a large volume of documents without a clear explanation of how and why each 
document is relevant to the comparative analysis; 
2.  Conclusory or generalized statements, including mere recitations of the legal standard, without 
specific supporting evidence and detailed explanations; 
3.  Identification of processes, strategies, sources, and factors without the required or clear and detailed 
comparative analysis; 
4.  Identification of factors, evidentiary standards, and strategies without a clear explanation of how 
they were defined and applied in practice; 
5.  Reference to factors and evidentiary standards that were defined or applied in a quantitative 
manner, without the precise definitions, data, and information necessary to assess their development 
or application; or 
6.  Analysis that is outdated due to the passage of time, a change in plan structure, or for any other 
reason. 
Q4:  In addition to documentation of the comparative analyses, what types of documents 
should plans and issuers be prepared to make available to the Departments to support 
the analysis and conclusions reached in their comparative analyses of NQTLs? 
As specified by the Appropriations Act, plans and issuers should be prepared to make available documents 
that support the analysis and conclusions of their NQTL comparative analyses, including any documents 
and other information relevant to the factors used to determine the application of an NQTL and the 
evidentiary standards used to define the factors identified.  In its most recent update of the MHPAEA Self-
Compliance Tool, DOL highlighted the following types of documents and relevant information that a plan 
or issuer should have available to support its NQTL comparative analyses.  
1.  Records documenting NQTL processes and detailing how the NQTLs are being applied to both 
medical/surgical and MH/SUD benefits to ensure the plan or issuer can demonstrate compliance 
with the law, including any materials that may have been prepared for compliance with any 
applicable reporting requirements under State law. 
2.  Any documentation, including any guidelines, claims processing policies and procedures, or other 
standards that the plan or issuer has relied upon to determine that the NQTLs apply no more 
stringently to MH/SUD benefits than to medical/surgical benefits.  Plans and issuers should include 
5  any available details as to how the standards were applied, and any internal testing, review, or 
analysis done by the plan or issuer to support its rationale. 
3.  Samples of covered and denied MH/SUD and medical/surgical benefit claims.  
4.  Documents related to MHPAEA compliance with respect to service providers (if a plan delegates 
management of some or all MH/SUD benefits to another entity).  
For example, if comparative analyses reference studies, testing, claims data, reports, or other considerations 
in defining or applying factors (such as meeting minutes or reports showing how those considerations were 
applied), then the plan or issuer should be prepared to provide copies of all those items.  The precise 
information needed to support an NQTL analysis will vary depending on the type of NQTL and the 
processes, strategies, evidentiary standards, and other factors used by the plan or issuer.   
Q5:  What actions will the Departments take if they determine that a plan or issuer has not 
submitted sufficient information to review comparative analyses of the design and 
application of NQTLs, or if the Departments conduct a review and determine that a 
plan or issuer is not in compliance with MHPAEA? 
If the Departments conclude a plan or issuer has not provided sufficient information to review the 
comparative analyses, the Appropriations Act provides that the Departments shall specify to the plan or 
issuer the information the plan or issuer must submit to be responsive to the request. 
In instances where the Departments have reviewed the comparative analyses and any other materials 
submitted upon request from a plan or issuer and determined that the plan or issuer is not in compliance 
with MHPAEA, the Appropriations Act requires the plan or issuer to specify to the Departments the actions 
the plan or issuer will take to come into compliance.  Specifically, the plan or issuer must submit additional 
comparative analyses that demonstrate compliance not later than 45 days after the initial determination of 
noncompliance.  Following the 45-day corrective action period, if the Departments make a final 
determination that the plan or issuer is still not in compliance, not later than 7 days after such determination, 
the plan or issuer must notify all individuals enrolled in the plan or coverage that the coverage is determined 
to be noncompliant with MHPAEA.  The Departments will also share findings of compliance and 
noncompliance with the State where the group health plan is located or where the issuer is licensed to do 
business.  In addition, the Departments will comply with other laws applicable to their particular review 
processes.  
Q6:  May a participant, beneficiary, or enrollee (or their authorized representative), or state 
regulator request an NQTL analysis? 
Yes.  Under the Appropriations Act, plans and issuers must make available their respective comparative 
analyses of NQTLs and other applicable information to the applicable State authority upon request. The 
term applicable State authority means, with respect to a health insurance issuer in a State, the State 
insurance commissioner or an official or officials designated by the State to enforce the requirements of title 
XXVII of the Public Health Service (PHS) Act for the State involved with respect to the issuer.   
Furthermore, as stated in previous guidance, participants and beneficiaries (or their authorized 
representatives) in ERISA-covered plans are entitled to comparative information on medical necessity 
criteria for both medical/surgical benefits and MH/SUD benefits, as well as the processes, strategies, 
evidentiary standards, and other factors used to apply an NQTL with respect to medical/surgical benefits 
6 
  and MH/SUD benefits under the plan.9 The types of documents contemplated in previous guidance would 
include any analyses performed by the plan as to how the NQTL complies with MHPAEA.  Therefore, for 
plans subject to ERISA, plans and issuers must make the comparative analyses and other applicable 
information required by the Appropriations Act available to participants, beneficiaries, and enrollees upon 
request.  If a provider or other individual is acting as a patients authorized representative, the provider or 
other authorized representative may request these documents.10
In addition, as stated in previous guidance, with respect to non-grandfathered group health plans and non-
grandfathered group orindividual health insurance coverage, claimants (or their authorized representative)
have a rightupon appeal ofan adverse benefit determination (or a finalinternal adverse benefit
determination)to be provided, upon request and free of charge, reasonable accessto and copies of all 
documents, records, and other information relevant to the claimants claimfor benefits.11 This right 
includes access to documents with information on medical necessity criteria for both medical/surgical 
benefits and MH/SUD benefits, as well as documents reflecting the processes, strategies, evidentiary 
standards, and other factors used to apply an NQTL with respect to medical/surgical benefits and MH/SUD 
benefits under the plan.12These documents would include any analyses performed by the plan or issuer as 
to how the NQTL complies with MHPAEA. 
Q7:  Will the Departments issue additional guidance on requirements that were added to 
MHPAEA by the Appropriations Act? 
In light of the expeditious timeframes established under the Appropriations Act regarding comparative 
analyses of NQTLs, the Departments are issuing these FAQs to address several discrete issues.  The 
Departments will engage with stakeholders to determine what additional guidance might be needed.  
Q8:  Are there specific NQTLs that the Departments intend to focus on when requesting 
comparative analyses from plans and issuers for purposes of review in accordance with 
the requirements of the Appropriations Act? 
To the extent that the Departments become aware of potential MHPAEA violations or complaints regarding 
noncompliance with MHPAEA that concern NQTLs, the Departments may request comparative analyses on 
the NQTLs that are the subject of the complaint or potential violation.  For example, in the event that a 
complaint is received regarding prior authorization requirements for coverage of buprenorphine for the 
treatment of opioid use disorder, the Departments may request an NQTL comparative analysis for prior 
authorization requirements placed on prescription drugs.   Additionally, the Appropriations Act provides 
that the Departments may also request NQTL comparative analyses in any other instance deemed 
appropriate. 
                                                           
9 ERISA section 104(b) and 29 CFR  2590.712(d)(3), 2520.104b-1, 2560.503-1, and 2590.715-2719. See also FAQs about 
Affordable Care Act Implementation Part 31, Mental Health Parity Implementation, and Womens Health and Cancer Rights Act 
Implementation (Apr. 20, 2016), available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-
center/faqs/aca-part-31.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-31_Final-4-20-
16.pdf.  See also MHPAEA Disclosure Template, available at https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-
regulations/laws/mental-health-parity/mhpaea-disclosure-template.pdf and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-
and-FAQs/Downloads/MHPAEA-Disclosure-Template-1.pdf.   
10 See 29 CFR 2560.503-1, which is also incorporated by reference in 26 CFR 54.9815-2719(b)(2)(i), 29 CFR 2590.715-
2719(b)(2)(i), and 45 CFR 147.136(b)(2)(i). 
11 A document, record, or other information is considered relevant for a group health plan under 29 CFR 2560.503-1(m)(8) if it (i) 
was relied upon in making the benefit determination; (ii) was submitted, considered, or generated in the course of making the 
benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit 
determination; (iii) demonstrates compliance with the administrative processes and safeguards required to ensure and verify that 
claims are decided in accordance with governing plan documents and consistently with similar claims; or (iv) constitutes a 
statement of plan policy or guidance concerning the denied treatment option or benefit for the claimants diagnosis, without regard 
to whether such advice or statement was relied upon in making the benefit determination. 
12 29 CFR 2560.503-1, 26 CFR 54.9815-2719, 29 CFR 2590.715-2719, and 45 CFR 147.136. 
7  In the near term, DOL expects to focus on the following NQTLs in its enforcement efforts:   
1.  Prior authorization requirements for in-network and out-of-network inpatient services; 
2.  Concurrent review for in-network and out-of-network inpatient and outpatient services; 
3.  Standards for provider admission to participate in a network, including reimbursement rates; and 
4.  Out-of-network reimbursement rates (plan methods for determining usual, customary, and 
reasonable charges). 
Plans and issuers should also be prepared to make available a list of all other NQTLs for which they have 
prepared a comparative analysis and a general description of any documentation that exists regarding each 
analysis.  In the context of these reviews, plans and issuers may be required to submit analyses for these 
additional NQTLs.  Furthermore, an initial focus on the above four NQTLs by DOL does not in any way 
limit the Departments or an applicable State authoritys ability to request or review different or additional 
NQTL analyses for MHPAEA compliance.  The Appropriations Act requires plans and issuers to perform 
and document comparative analyses for all NQTLs imposed. 
Q9:  Who can I contact if I have additional questions about the MHPAEA amendments 
included in the Appropriations Act that apply to group health plans and health 
insurance issuers? 
If you have questions about the requirements of the Appropriations Act, or about MHPAEA in general, you 
may contact DOL for help at www.askebsa.dol.gov or 1-866-444-3272. You may also contact the HHS at 
marketconduct@cms.hhs.gov. 
Paperwork Reduction Act of 1995 
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and concurrently with this issuance, 
DOL and HHS are submitting an emergency request to the Office of Management and Budget (OMB) concerning the 
collections of information in this document.  
8