FAQS ABOUT AFFORDABLE CARE ACT 
IMPLEMENTATION (PART XXIX) AND MENTAL 
HEALTH PARITY IMPLEMENTATION 
 
October 23, 2015 
 
Set out below are additional Frequently Asked Questions (FAQs) regarding implementation of 
the market reform provisions of the Affordable Care Act, as well as FAQs 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.  These FAQs have 
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 
http://www.dol.gov/ebsa/healthreform/index.html and https://www.cms.gov/cciio/resources/fact-
sheets-and-faqs/index.html), these FAQs answer questions from stakeholders to help people 
understand the laws and benefit from them, as intended. 
 
Coverage of Preventive Services 
 
Section 2713 of the Public Health Service Act (PHS Act) and its implementing regulations 
relating to coverage of preventive services1 require non-grandfathered group health plans and 
health insurance coverage offered in the individual or group market to cover without the 
imposition of any cost-sharing requirements, the following items or services: 
 
  Evidenced-based items or services that have in effect a rating of A or B in the current 
recommendations of the United States Preventive Services Task Force (USPSTF) with 
respect to the individual involved, except for the recommendations of the USPSTF 
regarding breast cancer screening, mammography, and prevention issued in or around 
November 2009, which are not considered in effect for this purpose;  
  Immunizations for routine use in children, adolescents, and adults that have in effect a 
recommendation from the Advisory Committee on Immunization Practices (ACIP) of the 
Centers for Disease Control and Prevention (CDC) with respect to the individual 
involved;  
  With respect to infants, children, and adolescents, evidence-informed preventive care and 
screenings provided for in comprehensive guidelines supported by the Health Resources 
and Services Administration (HRSA); and  
  With respect to women, evidence-informed preventive care and screening provided for in 
comprehensive guidelines supported by HRSA, to the extent not included in certain 
recommendations of the USPSTF.2 
                                                           
1  26 CFR 54.9815-2713, 29 CFR 2590.715-2713, 45 CFR 147.130.  
2 Womens Preventive Services: Required Health Plan Coverage Guidelines (HRSA Guidelines) were adopted and 
released on August 1, 2011, based on recommendations developed by the Institute of Medicine (IOM). Womens 
preventive services recommended therein are required to be covered without cost sharing for plan years (or, in the 
individual market, policy years) beginning on or after August 1, 2012.  Under the HRSA Guidelines, group health 
plans established or maintained by religious employers (and group health insurance coverage provided in connection 
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If a recommendation or guideline does not specify the frequency, method, treatment, or setting 
for the provision of a recommended preventive service, then the plan or issuer may use 
reasonable medical management techniques to determine any such coverage limitations.3 
 
Q1: Are plans and issuers required to provide a list of the lactation counseling providers 
within the network? 
 
Yes.  The HRSA guidelines provide for coverage of comprehensive prenatal and postnatal 
lactation support, counseling, and equipment rental as part of their preventive service 
recommendations, including lactation counseling.4  While the preventive services requirements 
under PHS Act section 2713 do not include specific disclosure requirements, provisions of other 
applicable law require disclosure of lactation counseling providers available under the plan or 
coverage.  Under PHS Act section 2715 and implementing regulations, group health plans and 
health insurance issuers offering group or individual health insurance coverage must provide a 
Summary of Benefits and Coverage (SBC) that includes an Internet address (or other contact 
information) for obtaining a list of the network providers.5   
 
With respect to group health plans subject to the Employee Retirement Income Security Act 
(ERISA), ERISA section 102 and the Department of Labors implementing regulations provide 
that a group health plan must provide a Summary Plan Description (SPD) that describes 
provisions governing the use of network providers, the composition of the provider network, and 
whether, and under what circumstances, coverage is provided for out-of-network services.6  For 
those plans with provider networks, the listing of providers can be furnished in a separate 
document accompanying the SPD, as long as the SPD describes the provider network and states 
that provider lists are furnished automatically, without charge, as a separate document.7   
 
Finally, issuers of qualified health plans (QHPs) in the individual market Exchanges and the 
SHOPs currently must make their provider directories available online.  For plan years beginning 
on or after January 1, 2016, a QHP issuer must publish an up-to-date provider directory, 
including information on which providers are accepting new patients, as well as the providers 
contact information, specialty, medical group, and any institutional affiliations, in a manner that 
is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange, HHS, and 
OPM.8 
                                                                                                                                                                                           
with such plans) are exempt from the requirement to cover contraceptive services under section 2713 of the PHS 
Act, as incorporated into the Employee Retirement Income Security Act and the Internal Revenue Code (the Code).  
45 CFR 147.131(a).  Additionally, accommodations for religious objections to contraception are available to group 
health plans established or maintained by certain eligible organizations (and group health insurance coverage 
provided in connection with such plans), as well as student health insurance coverage arranged by eligible 
organizations, with respect to the contraceptive coverage requirement. 
3 See 26 CFR 54.9815-2713(a)(4), 29 CFR 2590.715-2713(a)(4), 45 CFR 147.130(a)(4). 
4 See FAQs About Affordable Care Act Implementation (Part XII), Q18-20, available at 
http://www.dol.gov/ebsa/faqs/faq-aca12.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/aca_implementation_faqs12.html. 
5 See 26 CFR 54.9815-2715(a)(2)(i)(K), 29 CFR 2590.715-2715(a)(2)(i)(K), 45 CFR 147.200(a)(2)(i)(K) 
6 See 29 CFR 2520.102-3(j)(3). 
7 Id. 
8 See 45 CFR 156.230(b)(2). 
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Q2: My group health plan has a network of providers and covers recommended preventive 
services without cost sharing when such services are obtained in-network.  However, the 
network does not include lactation counseling providers.  Is it permissible for the plan to 
impose cost sharing with respect to lactation counseling services obtained outside the 
network? 
 
No.  As stated in a previous FAQ9, while nothing in the preventive services requirements under 
section 2713 of the PHS Act or its implementing regulations requires a plan or issuer that has a 
network of providers to provide benefits for preventive services provided out-of-network, these 
requirements are premised on enrollees being able to access the required preventive services 
from in-network providers.  The FAQ also stated that if a plan or issuer does not have in its 
network a provider who can provide a particular service, then the plan or issuer must cover the 
item or service when performed by an out-of-network provider and not impose cost sharing with 
respect to the item or service.  Therefore, if a plan or issuer does not have in its network a 
provider who can provide lactation counseling services, the plan or issuer must cover the item or 
service when performed by an out-of-network provider without cost sharing. 
 
Q3:  The State where I live does not license lactation counseling providers and my plan or 
issuer will only cover services received from providers licensed by the State.  Does that 
mean that I cannot receive coverage of lactation counseling without cost sharing? 
 
No.  Subject to reasonable medical management techniques, lactation counseling must be 
covered without cost sharing by the plan or issuer when it is performed by any provider acting 
within the scope of his or her license or certification under applicable State law.  Lactation 
counseling could be provided by another provider type acting within the scope of his or her 
license or certification (for example, a registered nurse), and the plan or issuer would be required 
to provide coverage for the services without cost sharing. 
 
Q4:  A plan or issuer provides coverage for lactation counseling without cost sharing only 
on an inpatient basis.  Is it permissible for the plan or issuer to impose cost sharing with 
respect to lactation counseling received on an outpatient basis? 
 
No.  If a recommendation or guideline does not specify the frequency, method, treatment, or 
setting for the provision of a recommended preventive service, then the plan or issuer may use 
reasonable medical management techniques to determine any such coverage limitations.  
However, it is not a reasonable medical management technique to limit coverage for lactation 
counseling to services provided on an in-patient basis.  Some births are never associated with a 
hospital admission (e.g., home births assisted by a nurse midwife), and it is not permissible to 
deny coverage without cost sharing for lactation support services in this case.  Moreover, 
coverage for lactation support services without cost sharing must extend for the duration of the 
                                                           
9 See FAQs about Affordable Care Act Implementation (Part XII), Q3, available at 
http://www.dol.gov/ebsa/faqs/faq-aca12.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/aca_implementation_faqs12.html. 
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breastfeeding10 which, in many cases, extends beyond the in-patient setting for births that are 
associated with a hospital admission. 
 
Q5:  Are plans and issuers permitted to require individuals to obtain breastfeeding 
equipment within a specified time period (for example, within 6 months of delivery) in 
order for the breastfeeding equipment to be covered without cost sharing? 
 
No.  The requirement to cover the rental or purchase of breastfeeding equipment without cost 
sharing extends for the duration of breastfeeding, provided the individual remains continuously 
enrolled in the plan or coverage. 
 
Q6:  My non-grandfathered group health plan or coverage contains a general exclusion for 
weight management services for adult obesity.  Is this permissible? 
 
No.  Consistent with PHS Act section 2713, its implementing regulations, and current USPSTF 
recommendations, non-grandfathered plans and issuers must cover, without cost sharing, 
screening for obesity in adults.  In addition to such screening, the USPSTF currently 
recommends, for adult patients with a body mass index (BMI) of 30 kg/m2 or higher, intensive, 
multicomponent behavioral interventions for weight management.  The recommendation 
specifies that intensive, multicomponent behavioral interventions include, for example, the 
following: 
 
  Group and individual sessions of high intensity (12 to 26 sessions in a year), 
  Behavioral management activities, such as weight-loss goals,  
  Improving diet or nutrition and increasing physical activity,  
  Addressing barriers to change,  
  Self-monitoring, and  
  Strategizing how to maintain lifestyle changes.  
 
While plans and issuers may use reasonable medical management techniques to determine the 
frequency, method, treatment, or setting for a recommended preventive service, to the extent not 
specified in the recommendation or guideline regarding that preventive service, plans are not 
permitted to impose general exclusions that would encompass recommended preventive services. 
 
Additionally, with respect to individual and small group market issuers subject to the essential 
health benefits (EHB) requirements under section 1302(b) of the Affordable Care Act and 
section 2707(a) of the PHS Act, to the extent the applicable EHB-benchmark plan does not 
include coverage of the required preventive services, including obesity screening and counseling, 
the issuer must nonetheless provide coverage for such preventive services consistent with PHS 
Act section 2713 and its implementing regulations, and with the regulation implementing the 
EHB requirements at 45 CFR 156.115(a)(4). 
 
                                                           
10 See FAQs About Affordable Care Act Implementation (Part XII), Q20, which states that coverage of 
comprehensive lactation support and counseling and costs of renting or purchasing breastfeeding equipment extends 
for the duration of breastfeeding, available at http://www.dol.gov/ebsa/faqs/faq-aca12.html and 
https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs12.html. 
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Q7:  If a colonoscopy is scheduled and performed as a screening procedure pursuant to the 
USPSTF recommendation, is it permissible for a plan or issuer to impose cost sharing for 
the required specialist consultation prior to the screening procedure? 
 
No.  The plan or issuer may not impose cost sharing with respect to a required consultation prior 
to the screening procedure if the attending provider determines that the pre-procedure 
consultation would be medically appropriate for the individual, because the pre-procedure 
consultation is an integral part of the colonoscopy.  As with any invasive procedure, the 
consultation before the colonoscopy can be essential in order for the consumer to obtain the full 
benefit of the colonoscopy safely.  The medical provider examines the patient to determine if the 
patient is healthy enough for the procedure and explains the process to the patient, including the 
required preparation for the procedure, all of which are necessary to protect the health of the 
patient. 
 
Because the Departments' prior guidance may reasonably have been interpreted in good faith as 
not requiring coverage without cost sharing of consultation prior to a colonoscopy screening 
procedure, the Departments will apply this clarifying guidance for plan years (or, in the 
individual market, policy years) beginning on or after the date that is 60 days after publication of 
these FAQs. 
 
Q8:  After a colonoscopy is scheduled and performed as a screening procedure pursuant to 
the USPSTF recommendation, is the plan or issuer required to cover any pathology exam 
on a polyp biopsy without cost sharing? 
 
Yes, such services performed in connection with a preventive colonoscopy must be covered 
without cost sharing.  The Departments view such services as an integral part of a colonoscopy, 
similar to polyp removal during a colonoscopy11.  The pathology exam is essential for the 
provider and the patient to obtain the full benefit of the preventive screening since the pathology 
exam determines whether the polyp is malignant.  Since the primary focus of the colonoscopy is 
to screen for malignancies, the pathology exam is critical for achieving the primary purpose of 
the colonoscopy screening. 
 
Because the Departments' prior guidance may reasonably have been interpreted in good faith as 
not requiring coverage without cost sharing of a pathology exam on a polyp biopsy performed in 
connection with a colonoscopy screening procedure, the Departments will apply this clarifying 
guidance for plan years (or, in the individual market, policy years) beginning on or after the date 
that is 60 days after publication of these FAQs. 
 
Q9:  I am a qualifying non-profit or closely held for-profit employer who sponsors an 
ERISA-covered self-insured plan, and I have a sincerely held religious objection to 
providing coverage of contraceptive services.  How do I effectuate the religious 
                                                           
11 See FAQs About Affordable Care Act Implementation (Part XII), Q5, which states that polyp removal is an 
integral part of a colonoscopy, available at http://www.dol.gov/ebsa/faqs/faq-aca12.html and 
https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs12.html. 
 
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accommodation, relieving myself of any obligation to contract, arrange, pay, or refer for 
that coverage? 
 
There are two methods: 
 
(1) Complete the EBSA Form 700 (accessible at 
http://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf) 
and provide it to the plans third party administrator(s); or 
 
(2) Provide appropriate notice of the objection to the Department of HHS.  A model notice is 
available at https://www.cms.gov/CCIIO/Resources/Regulations-and-
Guidance/Downloads/Model-Notice-8-22-14.pdf.   
 
In the first instance, the EBSA Form 700 will be a plan instrument that relieves you from any 
obligation to contract, arrange, or pay for contraceptive services to which you object, and that 
has the legal effect of designating the third party administrator as the ERISA plan administrator 
responsible for separately providing payments for those services.  In the second instance, HHS 
will forward the information to the Department of Labor, which will send a notification to the 
third party administrator, designating it as the ERISA plan administrator responsible for 
separately providing coverage for any contraceptive services to which you object.  In that 
instance, the notice of your objection sent to HHS will be a plan instrument that relieves you 
from any obligation to contract, arrange, or pay, or refer for contraceptive services to which you 
object, but will not have the legal effect of designating the third party administrator as the 
ERISA plan administrator for those services.  Instead, the notification sent from the Department 
of Labor to the third party administrator will be a separate plan instrument, and that separate 
instrument will serve to designate the third party administrator as the ERISA plan administrator 
responsible for separately providing payments for any contraceptive services to which you 
object.  
 
Coverage of BRCA Testing 
  
PHS Act section 2713 addresses coverage for evidence-based items or services with a rating of 
"A" or "B" in the current recommendations of the USPSTF, as well as, with respect to women, 
coverage for preventive care and screenings as provided for in comprehensive guidelines 
supported by HRSA. The USPSTF recommends with a "B" rating to "screen women who have 
family members with breast, ovarian, tubal or peritoneal cancer with 1 of several screening tools 
designed to identify a family history that may be associated with an increased risk for potentially 
harmful mutations in breast cancer susceptibility genes (BRCA 1 or BRCA 2). Women with 
positive screening results should receive genetic counseling and, if indicated after counseling, 
BRCA testing."  
  
The Departments have answered two previous FAQs on this topic.  In the first, the Departments 
clarified that HHS believes that the scope of this recommendation includes both genetic 
counseling and BRCA testing, if appropriate, for a woman as determined by her health care 
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provider.12  In the second, the Departments addressed services for women who previously had 
breast cancer, ovarian cancer, or other cancer.13  To address remaining questions, the 
Departments are issuing this additional FAQ.  
  
Q10: Which women must receive coverage without cost sharing for genetic counseling, and 
if indicated, testing for harmful BRCA mutations? 
  
Women found to be at increased risk using a screening tool designed to identify a family history 
that may be associated with an increased risk of having a potentially harmful gene mutation must 
receive coverage without cost sharing for genetic counseling, and, if indicated, testing for 
harmful BRCA mutations.  This is true regardless of whether the woman has previously been 
diagnosed with cancer, as long as she is not currently symptomatic of or receiving active 
treatment for breast, ovarian, tubal, or peritoneal cancer.  
  
For questions about this guidance, contact Centers for Medicare & Medicaid Services, Center for 
Consumer Information and Insurance Oversight at 1-888-393-2789, or the Department of Labor 
at www.askebsa.dol.gov or 1-866-444-3272. 
 
Wellness Programs 
 
Under PHS Act section 2705,14 ERISA section 702, Code section 9802, and the Departments 
implementing regulations, group health plans and health insurance issuers in the group and 
individual market are generally prohibited from discriminating against participants, beneficiaries, 
and individuals when establishing eligibility, benefits, or premiums based on a health factor.15   
An exception to this general prohibition allows premium discounts, rebates, or modification of 
otherwise applicable cost sharing (including copayments, deductibles, or coinsurance) in return 
for adherence to certain programs of health promotion and disease prevention, commonly 
referred to as wellness programs.  The wellness program exception applies to group health 
coverage, but not individual market coverage.16 
                                                           
12 See FAQs about Affordable Care Act Implementation (Part XII), available at http://www.dol.gov/ebsa/faqs/faq-
aca12.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs12.html. 
13 See FAQs about Affordable Care Act Implementation (Part XXVI), available at 
http://www.dol.gov/ebsa/faqs/faq-aca26.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/Downloads/aca_implementation_faqs26.pdf. 
14 Section 1201 of the Affordable Care Act amended and moved the nondiscrimination and wellness provisions of 
the PHS Act from section 2702 to section 2705, and extended the nondiscrimination provisions to the individual 
market.  The Affordable Care Act also added section 715(a)(1) to ERISA and section 9815(a)(1) to the Code to 
incorporate the provisions of part A of title XXVII of the PHS Act, including PHS Act section 2705, into ERISA 
and the Code. 
15 The Health Insurance Portability and Accountability Act of 1996 (HIPAA) nondiscrimination provisions and the 
implementing regulations published by the Departments on December 13, 2006 (the 2006 HIPAA regulations) set 
forth eight health status-related factors, which the 2006 HIPAA regulations refer to as health factors for 
simplicity.  Under the statute and the regulations, the eight health factors are health status, medical condition 
(including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic 
information, evidence of insurability (including conditions arising out of acts of domestic violence), and disability. 
71 FR 75014, 75030 (Dec. 13, 2006).  In the Departments view, [t]hese terms are largely overlapping and, in 
combination, include any factor related to an individuals health.  66 FR 1378, 1379 (Jan. 8, 2001). 
16 Note, however, that it is HHSs belief that participatory wellness programs in the individual market do not 
violate the nondiscrimination provisions provided that such programs are consistent with State law and available to 
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On June 3, 2013, the Departments issued final regulations17 under PHS Act section 2705 and the 
related provisions of ERISA and the Code that address the requirements for wellness programs 
provided in connection with group health coverage.  Among other things, these regulations set 
the maximum permissible reward under a health-contingent wellness program18 that is part of a 
group health plan (and any related health insurance coverage) at 30 percent of the total cost of 
coverage under the plan (or 50 percent for wellness programs designed to prevent or reduce 
tobacco use).  The wellness program regulations also address the reasonable design of health-
contingent wellness programs and the reasonable alternatives that must be offered in order to 
avoid prohibited discrimination.   
 
Q11: My group health plan gives rewards in the form of non-financial (or in-kind) 
incentives (for example, gift cards, thermoses, and sports gear) to participants who adhere 
to a wellness program.  Are these non-financial incentives subject to the wellness program 
regulations issued by the Departments? 
 
Yes.  If a group health plan provides a reward based on an individual satisfying a standard that 
is related to a health factor, the wellness program is subject to the Departments wellness 
regulations.  As provided in the regulations, a reward may be financial or non-financial (or in-
kind).  More specifically, the regulations provide that reference to an individual obtaining a 
reward includes both obtaining a reward (such as a discount or rebate of a premium or 
contribution, a waiver of all or part of a cost-sharing mechanism (such as a deductible, 
copayment, or coinsurance), an additional benefit, or any financial or other incentive) and 
avoiding a penalty (such as the absence of a surcharge or other financial or nonfinancial 
disincentives).19  
 
Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and Disclosure 
 
MHPAEA amended the PHS Act, ERISA, and the Code to provide increased parity between 
mental health and substance use disorder (MH/SUD) benefits and medical/surgical benefits.20  In 
                                                                                                                                                                                           
all similarly situated individuals enrolled in the individual health insurance coverage. 78 FR 33157, 33167 (Jun. 3, 
2013). Provided that a wellness program does not offer incentives based on a health factor or achieving a health 
standard, it would not violate the non-discrimination provision in section 2705 of the PHS Act.  While the wellness 
provisions under section 2705(j) of the PHS Act do not extend to the individual health insurance market, an issuer in 
the individual health insurance market can offer a wellness program that provides incentives based on participation 
since it does not violate the non-discrimination provision if it is made available to all similarly situated individuals 
enrolled in the individual health insurance coverage. 
17 See 78 FR 33158 (Jun. 3, 2013).  These regulations update the 2006 HIPAA regulations. The Affordable Care Act 
amended the statutory nondiscrimination and wellness provisions to in large part reflect the 2006 HIPAA regulations 
regarding wellness programs. 
18 A health-contingent wellness program is a program that requires an individual to satisfy a standard related to a 
health factor to obtain a reward (or requires an individual to undertake more than a similarly situated individual 
based on a health factor in order to obtain the same reward).  See 26 CFR 54.9802-1(f)(2); 29 CFR 2590.702(f)(2) 
and 45 CFR 146.121(f)(1)(iii). 
19 See 26 CFR 54.9802-1(f)(1)(i), 29 CFR 2590.702(f)(1)(i), and 45 CFR 146.121(f)(1)(i). 
20 MHPAEA does not mandate that plans and issuers cover MH/SUD benefits. Rather, it applies only if a plan or 
issuer provides those benefits. However, other provisions of Federal and State law may require coverage of 
MH/SUD benefits, including the EHB requirements applicable to non-grandfathered individual and small group 
market coverage under the Affordable Care Act. 
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general, MHPAEA requires that the financial requirements (such as coinsurance and copays) and 
treatment limitations (such as visit limits), imposed on MH/SUD benefits cannot be more 
restrictive than the predominant financial requirements and treatment limitations that apply to 
substantially all medical/surgical benefits.   
 
With regard to any nonquantitative treatment limitation (NQTL),21 the MHPAEA final 
regulations22 provide that a plan or issuer may not impose an NQTL with respect to MH/SUD 
benefits in any classification unless, under the terms of the plan 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 with respect to medical/surgical benefits in the same classification. 
 
The MHPAEA final regulations provide express disclosure requirements.  Specifically, the 
criteria for medical necessity determinations with respect to MH/SUD benefits must be made 
available by the plan administrator or the health insurance issuer to any current or potential 
participant, beneficiary, or contracting provider upon request.23  In addition, under MHPAEA, 
the reason for any denial of reimbursement or payment for services with respect to MH/SUD 
benefits must be made available to participants and beneficiaries.24  The Departments also 
explained in the preamble to the final regulations that, in addition to these specific disclosure 
obligations under MHPAEA, 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.  Instruments under which the plan is established or 
operated include documents with 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 and 
MH/SUD benefits under the plan.  In addition, 29 CFR 2560.503-1, 29 CFR 2590.715-2719 and 
45 CFR 147.136 set forth rules regarding claims and appeals, including the right of claimants (or 
their authorized representative) upon appeal of an adverse benefit determination (or a final 
internal adverse benefit determination) to be provided upon request and free of charge, 
reasonable access to and copies of all documents, records, and other information relevant to the 
claimant's claim for benefits.  This includes documents with 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 and MH/SUD benefits under the plan.  
 
Contemporaneous with the issuance of the MHPAEA final regulations, the Departments 
published FAQs about Affordable Care Act Implementation Part XVII and Mental Health Parity 
                                                           
21 NQTLs generally are limits on the scope or duration of treatment that are not expressed numerically.  MHPAEA 
regulations at 26 CFR 54.9812-1(c)(4)(ii), 29 CFR 2590.712(c)(4)(ii) and 45 CFR 146.136(c)(4)(ii) contain an 
illustrative list of NQTLs that includes, among other things, medical management standards limiting or excluding 
benefits based on medical necessity; formulary design for prescription drugs; network tier design; and plan methods 
for determining usual, customary, and reasonable charges.  See also 45 CFR 147.160. 
22 26 CFR 54.9812-1(c)(4), 29 CFR 2590.712(c)(4) , 45 CFR 146.136(c)(4) and 147.160. 
23 26 CFR 54.9812-1(d)(1), 29 CFR 2590.712(d)(1), 45 CFR 146.136(d)(1) and 147.160. 
24 26 CFR 54.9812-1(d)(2), 29 CFR 2590.712(d)(2), 45 CFR 146.136(d)(2) and 147.160. 
9 
       
Implementation25 addressing a group health plans disclosure obligations under MHPAEA and 
ERISA generally, as well as the specific information a participant is entitled to receive when a 
claim for MH/SUD benefits has been denied.  In addition to reiterating that instruments under 
which the plan is established or operated under ERISA section 104 includes documents with 
information on medical necessity criteria for both medical/surgical and MH/SUD benefits, as 
well as the processes, strategies, evidentiary standards, and other factors used to apply an NQTL, 
this guidance noted that other provisions of Federal law require such disclosures. 
 
This guidance provided that under the internal appeals and external review requirements added 
by the Affordable Care Act, non-grandfathered group health plans and health insurance issuers 
must provide to an individual (or a provider or other individual acting as a patients authorized 
representative), upon request and free of charge, reasonable access to and copies of all 
documents, records, and other information relevant to the individual's claim for benefits 
consistent with the Department of Labor claims procedure regulation.26  FAQ 8 of this guidance 
specifically noted that such information would include documents of a comparable nature with 
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 and MH/SUD benefits under the plan.27 
 
Q12:  I am a participant in a group health plan that provides treatment for anorexia as a 
mental health benefit.  In accordance with the plan terms, my provider, on my behalf, 
requested prior authorization for a 30-day inpatient stay to treat my anorexia.  The request 
was denied based on the plans determination that a 30-day inpatient stay is not medically 
necessary under the plan terms.   
 
I then requested from the plan administrator a copy of its medical necessity criteria for 
both medical/surgical and MH/SUD benefits (including anorexia), as well as any 
information regarding the processes, strategies, evidentiary standards, or other factors 
used in developing the medical necessity criteria and in applying them.  May the plan 
administrator deny me this information based on an assertion that the information is 
proprietary and/or has commercial value? 
 
No.  The criteria for making medical necessity determinations, as well as any processes, 
strategies, evidentiary standards, or other factors used in developing the underlying NQTL and in 
applying it, must be disclosed with respect to both MH/SUD benefits and medical/surgical 
benefits, regardless of any assertions as to the proprietary nature or commercial value of the 
information. 
 
                                                           
25 See FAQs about Affordable Care Act Implementation (Part XVII) and Mental Health Parity Implementation, 
available at http://www.dol.gov/ebsa/faqs/faq-aca17.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-
and-FAQs/aca_implementation_faqs17.html. 
26 See 29 CFR 2560.503-1 and 2590.715-2719; 45 CFR 147.136. http://www.dol.gov/ebsa/healthreform/ and 
https://www.healthcare.gov/health-care-law-protections/for consumer information on internal claims and appeals, 
external review of health plan decisions, and grandfathered health plans under the Affordable Care Act. 
27 See FAQs About Affordable Care Act Implementation (Part XVII) and Mental Health Parity Implementation, Q8 
available at http://www.dol.gov/ebsa/faqs/faq-aca17.html and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-
and-FAQs/aca_implementation_faqs17.html. 
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Whether a plan that is subject to ERISA can refuse to provide instruments under which the plan 
is established or operated on the basis that the information is proprietary was specifically 
addressed in the Department of Labors Advisory Opinion 96-14A.28  The Advisory Opinion 
rejected that basis for refusal.  In that Advisory Opinion, the Department of Labor stated that any 
documents or instruments that specify formulas, methodologies, or schedules to be applied in 
determining or calculating a participants or beneficiarys benefit entitlement under an employee 
benefit plan (in that case, a schedule of a plans usual and customary fees) would constitute 
instruments under which the plan is established or operated, and must be provided, 
notwithstanding that the plan asserted that such fee schedules are of a  proprietary  nature.  
Such information must be disclosed, even in cases where the source of the information is a third-
party commercial vendor. 
 
Q13: Can my plan, upon request, provide a summary description of the medical necessity 
criteria for both MH/SUD benefits and medical/surgical benefits that is written to be 
understandable for a layperson? 
 
Yes.  Although not required to do so, group health plans and issuers can provide a document that 
provides a description of the medical necessity criteria in laypersons terms.  However, providing 
such a summary document is not a substitute for providing the actual underlying medical 
necessity criteria, if such documents are requested. 
 
                                                           
28 See AO 96-14A, available at http://www.dol.gov/ebsa/programs/ori/advisory96/96-14a.htm.  
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