```

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1737 Introduced in Senate (IS)]

<DOC>

116th CONGRESS
  1st Session
                                S. 1737

   To strengthen parity in mental health and substance use disorder 
                               benefits.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                              June 5, 2019

Mr. Murphy (for himself and Mr. Cassidy) 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 ``Mental Health Parity Compliance 
Act''.

SEC. 2. STRENGTHENING PARITY IN MENTAL HEALTH AND SUBSTANCE USE 
              DISORDER BENEFITS.

    (a) 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) Compliance requirements.--
                    ``(A) Nonquantitative treatment limitation (nqtl) 
                requirements.--In the case of a group health plan (or 
                health insurance coverage offered in connection with 
                such a plan) that provides both medical and surgical 
                benefits and mental health or substance use disorder 
                benefits, the plan or coverage shall perform 
                comparative analyses about the design and application 
                of nonquantitative treatment limitations (referred to 
                in this paragraph as the `NQTL') in accordance with the 
                following process, and make available to the Secretary 
                upon request within 60 days beginning January 1, 2020, 
                and immediately upon request beginning January 1, 2021 
                the following information:
                            ``(i) The specific plan or coverage 
                        language regarding the NQTL and a description 
                        of all mental health or substance use disorder 
                        and medical/surgical services to which it 
                        applies in each respective benefits 
                        classification.
                            ``(ii) The factors used to determine that 
                        an NQTL will apply to mental health or 
                        substance use disorder benefits and medical/
                        surgical benefits, including factors that were 
                        considered but rejected.
                            ``(iii) The evidentiary standard (both 
                        identified and deidentified) for each of the 
                        factors identified in clause (ii) and any other 
                        evidence relied upon to design and apply the 
                        NQTL to mental health or substance use disorder 
                        benefits and medical/surgical benefits.
                            ``(iv) The comparative analyses 
                        demonstrating that the processes and strategies 
                        used to design the NQTL, as written, and the as 
                        written processes and strategies used to apply 
                        the NQTL for mental health or substance use 
                        disorder benefits are comparable to, and are 
                        applied no more stringently than, the processes 
                        and strategies used to design the NQTL, as 
                        written, and the as written processes and 
                        strategies used to apply the NQTL to medical/
                        surgical benefits.
                            ``(v) The comparative analyses 
                        demonstrating that the processes and strategies 
                        used to apply the NQTL, in operation, for 
                        mental health and substance use disorder 
                        benefits are comparable to, and are applied no 
                        more stringently than, the processes and 
                        strategies used to apply each NQTL, in 
                        operation, for medical and surgical benefits.
                            ``(vi) A disclosure of the specific 
                        findings and conclusions reached by the plan or 
                        coverage that the results of the analyses 
                        described in this subparagraph indicate that 
                        the plan or coverage is in compliance with this 
                        section.
                    ``(B) Secretary request process.--
                            ``(i) Submission upon complaint.--The 
                        Secretary shall request that a group health 
                        plan (or health insurance coverage offered in 
                        connection with such a plan) submit the 
                        comparative analyses described in subparagraph 
                        (A) if the Secretary has received any 
                        complaints about such a plan or coverage that 
                        involve mental health or substance use disorder 
                        benefits.
                            ``(ii) Random submissions.--The Secretary 
                        shall request the comparative analyses 
                        described in subparagraph (A) from no fewer 
                        than 50 plans or coverages selected at random, 
                        annually, and such plans or coverages shall not 
                        be the same plans or coverages for which the 
                        comparative analyses are requested under clause 
                        (i).
                            ``(iii) Additional information.--In 
                        instances in which the Secretary has concluded 
                        that the plan or coverage has not submitted 
                        sufficient information for the Secretary to 
                        review the comparative analyses described in 
                        subparagraph (A), as requested under clauses 
                        (i) and (ii), the Secretary shall specify to 
                        the plan or coverage the additional information 
                        the plan or coverage must submit for the 
                        Secretary to review the comparative analyses 
                        described in subparagraph (A) for compliance 
                        with this section.
                            ``(iv) Required action.--In instances in 
                        which the Secretary has reviewed the 
                        comparative analyses described in subparagraph 
                        (A), as requested under clauses (i) and (ii), 
                        and determined that the plan or coverage is not 
                        in compliance with this section, the Secretary 
                        shall specify to the plan or coverage the 
                        actions the plan or coverage must take to be in 
                        compliance with this section.
                            ``(v) Report.--Not later than 1 year after 
                        the date of enactment of this paragraph, and 
                        annually thereafter, the Secretary shall submit 
                        to the Committee on Education and Labor of the 
                        House of Representatives and the Committee on 
                        Health, Education, Labor, and Pensions of the 
                        Senate a report that contains--
                                    ``(I) each of the comparative 
                                analyses requested under clauses (i) 
                                and (ii), except that the identity of 
                                each plan or coverage and any 
                                contracted entity of a plan or coverage 
                                shall be redacted;
                                    ``(II) the Secretary's conclusions 
                                as to whether each plan or coverage 
                                submitted sufficient information for 
                                the Secretary to review the comparative 
                                analyses requested under clauses (i) 
                                and (ii) for compliance with this 
                                section;
                                    ``(III) for each plan or coverage 
                                that did submit sufficient information 
                                for the Secretary to review the 
                                comparative analyses requested under 
                                clause (i), the Secretary's conclusions 
                                as to whether the plan or coverage is 
                                in compliance with this section;
                                    ``(IV) the Secretary's 
                                specifications described in clause 
                                (iii) for each plan or coverage that 
                                the Secretary determined did not submit 
                                sufficient information for the 
                                Secretary to review the comparative 
                                analyses requested under clauses (i) 
                                and (ii) for compliance with this 
                                section; and
                                    ``(V) the Secretary's 
                                specifications described in clause (iv) 
                                of the actions each plan or coverage 
                                that the Secretary determined is not in 
                                compliance with this section must take 
                                to be in compliance with this section.
                    ``(C) Compliance program guidance document update 
                process.--
                            ``(i) In general.--The Secretary shall 
                        include select instances of noncompliance that 
                        the Secretary discovers upon reviewing the 
                        comparative analyses requested under clauses 
                        (i) and (ii) of subparagraph (B) in the 
                        compliance program guidance document described 
                        in section 2726(a)(6) of the Public Health 
                        Service Act, as it is updated every 2 years, 
                        except that all instances shall be deidentified 
                        and such instances shall not disclose any 
                        protected health information or individually 
                        identifiable information.
                            ``(ii) Inspector general.--Any instances of 
                        noncompliance the Secretary discovers upon 
                        reviewing the comparative analyses requested 
                        under clauses (i) and (ii) of subparagraph (B) 
                        shall be shared with Inspector General of the 
                        Department of Health and Human Services, the 
                        Inspector General of the Department of Labor, 
                        and the Inspector General of the Department of 
                        the Treasury, in accordance with section 
                        2726(a)(6)(B)(iii)(I) of the Public Health 
                        Service Act.
                            ``(iii) State.--Any instances of 
                        noncompliance the Secretary discovers upon 
                        reviewing the comparative analyses requested 
                        under clauses (i) and (ii) of subparagraph (B) 
                        shall be shared with a State, in accordance 
                        with section 2726(a)(6)(B)(iii)(II) of the 
                        Public Health Service Act.''.
    (b) 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) Compliance requirements.--
                    ``(A) Nonquantitative treatment limitation (nqtl) 
                requirements.--In the case of a group health plan that 
                provides both medical and surgical benefits and mental 
                health or substance use disorder benefits, the plan 
                shall perform comparative analyses about the design and 
                application of nonquantitative treatment limitations 
                (referred to in this paragraph as the `NQTL') in 
                accordance with the following process, and make 
                available to the Secretary upon request within 60 days 
                beginning January 1, 2020, and immediately upon request 
                beginning January 1, 2021 the following information:
                            ``(i) The specific plan language regarding 
                        the NQTL and a description of all mental health 
                        or substance use disorder and medical/surgical 
                        services to which it applies in each respective 
                        benefits classification.
                            ``(ii) The factors used to determine that 
                        an NQTL will apply to mental health or 
                        substance use disorder benefits and medical/
                        surgical benefits, including factors that were 
                        considered but rejected.
                            ``(iii) The evidentiary standard (both 
                        identified and deidentified) for each of the 
                        factors identified in clause (ii) and any other 
                        evidence relied upon to design and apply the 
                        NQTL to mental health or substance use disorder 
                        benefits and medical/surgical benefits.
                            ``(iv) The comparative analyses 
                        demonstrating that the processes and strategies 
                        used to design the NQTL, as written, and the as 
                        written processes and strategies used to apply 
                        the NQTL for mental health or substance use 
                        disorder benefits are comparable to, and are 
                        applied no more stringently than, the processes 
                        and strategies used to design the NQTL, as 
                        written, and the as written processes and 
                        strategies used to apply the NQTL to medical/
                        surgical benefits.
                            ``(v) The comparative analyses 
                        demonstrating that the processes and strategies 
                        used to apply the NQTL, in operation, for 
                        mental health and substance use disorder 
                        benefits are comparable to, and are applied no 
                        more stringently than, the processes and 
                        strategies used to apply each NQTL, in 
                        operation, for medical and surgical benefits.
                            ``(vi) A disclosure of the specific 
                        findings and conclusions reached by the plan 
                        that the results of the analyses described in 
                        this subparagraph indicate that the plan or 
                        coverage is in compliance with this section.
                    ``(B) Secretary request process.--
                            ``(i) Submission upon complaint.--The 
                        Secretary shall request that a group health 
                        plan submit the comparative analyses described 
                        in subparagraph (A) if the Secretary has 
                        received any complaints about such a plan that 
                        involve mental health or substance use disorder 
                        benefits.
                            ``(ii) Random submissions.--The Secretary 
                        shall request the comparative analyses 
                        described in subparagraph (A) from no fewer 
                        than 50 plans selected at random, annually, and 
                        such plans shall not be the same plans for 
                        which the comparative analyses are requested 
                        under clause (i).
                            ``(iii) Additional information.--In 
                        instances in which the Secretary has concluded 
                        that the plan has not submitted sufficient 
                        information for the Secretary to review the 
                        comparative analyses described in subparagraph 
                        (A), as requested under clauses (i) and (ii), 
                        the Secretary shall specify to the plan the 
                        additional information the plan must submit for 
                        the Secretary to review the comparative 
                        analyses described in subparagraph (A) for 
                        compliance with this section.
                            ``(iv) Required action.--In instances in 
                        which the Secretary has reviewed the 
                        comparative analyses described in subparagraph 
                        (A), as requested under clauses (i) and (ii), 
                        and determined that the plan is not in 
                        compliance with this section, the Secretary 
                        shall specify to the plan the actions the plan 
                        must take to be in compliance with this 
                        section.
                            ``(v) Report.--Not later than 1 year after 
                        the date of enactment of this paragraph, and 
                        annually thereafter, the Secretary shall submit 
                        to the Committee on Ways and Means of the House 
                        of Representatives and the Committee on Finance 
                        of the Senate a report that contains--
                                    ``(I) each of the comparative 
                                analyses requested under clauses (i) 
                                and (ii), except that the identity of 
                                each plan and any contracted entity of 
                                a plan shall be redacted;
                                    ``(II) the Secretary's conclusions 
                                as to whether each plan submitted 
                                sufficient information for the 
                                Secretary to review the comparative 
                                analyses requested under clauses (i) 
                                and (ii) for compliance with this 
                                section;
                                    ``(III) for each plan that did 
                                submit sufficient information for the 
                                Secretary to review the comparative 
                                analyses requested under clause (i), 
                                the Secretary's conclusions as to 
                                whether the plan is in compliance with 
                                this section;
                                    ``(IV) the Secretary's 
                                specifications described in clause 
                                (iii) for each plan that the Secretary 
                                determined did not submit sufficient 
                                information for the Secretary to review 
                                the comparative analyses requested 
                                under clauses (i) and (ii) for 
                                compliance with this section; and
                                    ``(V) the Secretary's 
                                specifications described in clause (iv) 
                                of the actions each plan that the 
                                Secretary determined is not in 
                                compliance with this section must take 
                                to be in compliance with this section.
                    ``(C) Compliance program guidance document update 
                process.--
                            ``(i) In general.--The Secretary shall 
                        include select instances of noncompliance that 
                        the Secretary discovers upon reviewing the 
                        comparative analyses requested under clauses 
                        (i) and (ii) of subparagraph (B) in the 
                        compliance program guidance document described 
                        in section 2726(a)(6) of the Public Health 
                        Service Act, as it is updated every 2 years, 
                        except that all instances shall be deidentified 
                        and such instances shall not disclose any 
                        protected health information or individually 
                        identifiable information.
                            ``(ii) Inspector general.--Any instances of 
                        noncompliance the Secretary discovers upon 
                        reviewing the comparative analyses requested 
                        under clauses (i) and (ii) of subparagraph (B) 
                        shall be shared with Inspector General of the 
                        Department of Health and Human Services, the 
                        Inspector General of the Department of Labor, 
                        and the Inspector General of the Department of 
                        the Treasury, in accordance with section 
                        2726(a)(6)(B)(iii)(I) of the Public Health 
                        Service Act.
                            ``(iii) State.--Any instances of 
                        noncompliance the Secretary discovers upon 
                        reviewing the comparative analyses requested 
                        under clauses (i) and (ii) of subparagraph (B) 
                        shall be shared with a State, in accordance 
                        with section 2726(a)(6)(B)(iii)(II) of the 
                        Public Health Service Act.''.
    (c) 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:
            ``(8) Compliance requirements.--
                    ``(A) Nonquantitative treatment limitation (nqtl) 
                requirements.--In the case of a group health plan or a 
                health insurance issuer offering group or individual 
                health insurance coverage that provides both medical 
                and surgical benefits and mental health or substance 
                use disorder benefits, the plan or issuer offering 
                group or individual health insurance coverage shall 
                perform comparative analyses about the design and 
                application of nonquantitative treatment limitations 
                (referred to in this paragraph as the `NQTL') in 
                accordance with the following process, and make 
                available to State, or to the Secretary as permitted 
                under subsections (a)(2) and (b)(1) of section 2723, 
                upon request within 60 days beginning January 1, 2020, 
                and immediately upon request beginning January 1, 2021, 
                the following information:
                            ``(i) The specific plan or coverage 
                        language regarding the NQTL and a description 
                        of all mental health or substance use disorder 
                        and medical/surgical services to which it 
                        applies in each respective benefits 
                        classification.
                            ``(ii) The factors used to determine that 
                        an NQTL will apply to mental health or 
                        substance use disorder benefits and medical/
                        surgical benefits, including factors that were 
                        considered but rejected.
                            ``(iii) The evidentiary standard (both 
                        identified and deidentified) for each of the 
                        factors identified in clause (ii) and any other 
                        evidence relied upon to design and apply the 
                        NQTL to mental health or substance use disorder 
                        benefits and medical/surgical benefits.
                            ``(iv) The comparative analyses 
                        demonstrating that the processes and strategies 
                        used to design the NQTL, as written, and the as 
                        written processes and strategies used to apply 
                        the NQTL for mental health or substance use 
                        disorder benefits are comparable to, and are 
                        applied no more stringently than, the processes 
                        and strategies used to design the NQTL, as 
                        written, and the as written processes and 
                        strategies used to apply the NQTL to medical/
                        surgical benefits.
                            ``(v) The comparative analyses 
                        demonstrating that the processes and strategies 
                        used to apply the NQTL, in operation, for 
                        mental health and substance use disorder 
                        benefits are comparable to, and are applied no 
                        more stringently than, the processes and 
                        strategies used to apply each NQTL, in 
                        operation, for medical and surgical benefits.
                            ``(vi) A disclosure of the specific 
                        findings and conclusions reached by the plan or 
                        health insurance issuer offering group or 
                        individual health insurance coverage that the 
                        results of the analyses described in this 
                        subparagraph indicate that the plan or coverage 
                        is in compliance with this section.
                    ``(B) Secretary request process.--
                            ``(i) Submission upon complaint.--As 
                        permitted under subsections (a)(2) and (b)(1) 
                        of section 2723, the Secretary shall request 
                        that a group health plan or a health insurance 
                        issuer offering group or individual health 
                        insurance coverage submit the comparative 
                        analyses described in subparagraph (A) if the 
                        Secretary has received any complaints about 
                        such a plan or issuer that involve mental 
                        health or substance use disorder benefits.
                            ``(ii) Random submissions.--As permitted 
                        under subsections (a)(2) and (b)(1) of section 
                        2723, the Secretary shall request the 
                        comparative analyses described in subparagraph 
                        (A) from no fewer than 50 plans or issuers 
                        selected at random, annually, and such plans or 
                        issuers shall not be the same plans or issuers 
                        for which the comparative analyses are 
                        requested under clause (i).
                            ``(iii) Additional information.--In 
                        instances in which the Secretary has concluded 
                        that the plan or issuer has not submitted 
                        sufficient information for the Secretary to 
                        review the comparative analyses described in 
                        subparagraph (A), as requested under clauses 
                        (i) and (ii), the Secretary shall specify to 
                        the plan or issuer the additional information 
                        the plan or issuer must submit for the 
                        Secretary to review the comparative analyses 
                        described in subparagraph (A) for compliance 
                        with this section.
                            ``(iv) Required action.--In instances in 
                        which the Secretary has reviewed the 
                        comparative analyses described in subparagraph 
                        (A), as requested under clauses (i) and (ii), 
                        and determined that the plan or issuer is not 
                        in compliance with this section, the Secretary 
                        shall specify to the plan or issuer the actions 
                        the plan or issuer must take to be in 
                        compliance with this section.
                            ``(v) Report.--Not later than 1 year after 
                        the date of enactment of this paragraph, and 
                        annually thereafter, the Secretary shall submit 
                        to the Committee on Education and Labor of the 
                        House of Representatives and the Committee on 
                        Health, Education, Labor, and Pensions of the 
                        Senate a report that contains--
                                    ``(I) each of the comparative 
                                analyses requested under clauses (i) 
                                and (ii), except that the identity of 
                                each plan or issuer and any contracted 
                                entity of a plan or issuer shall be 
                                redacted;
                                    ``(II) the Secretary's conclusions 
                                as to whether each plan or issuer 
                                submitted sufficient information for 
                                the Secretary to review the comparative 
                                analyses requested under clauses (i) 
                                and (ii) for compliance with this 
                                section;
                                    ``(III) for each plan or issuer 
                                that did submit sufficient information 
                                for the Secretary to review the 
                                comparative analyses requested under 
                                clause (i), the Secretary's conclusions 
                                as to whether the plan or issuer is in 
                                compliance with this section;
                                    ``(IV) the Secretary's 
                                specifications described in clause 
                                (iii) for each plan or issuer that the 
                                Secretary determined did not submit 
                                sufficient information for the 
                                Secretary to review the comparative 
                                analyses requested under clauses (i) 
                                and (ii) for compliance with this 
                                section; and
                                    ``(V) the Secretary's 
                                specifications described in clause (iv) 
                                of the actions each plan or issuer that 
                                the Secretary determined is not in 
                                compliance with this section must take 
                                to be in compliance with this section.
                    ``(C) Compliance program guidance document update 
                process.--
                            ``(i) In general.--The Secretary shall 
                        include select instances of noncompliance that 
                        the Secretary discovers upon reviewing the 
                        comparative analyses requested under clauses 
                        (i) and (ii) of subparagraph (B) in the 
                        compliance program guidance document described 
                        in subsection (a)(6), as it is updated every 2 
                        years, except that all instances shall be 
                        deidentified and such instances shall not 
                        disclose any protected health information or 
                        individually identifiable information.
                            ``(ii) Inspector general.--Any instances of 
                        noncompliance the Secretary discovers upon 
                        reviewing the comparative analyses requested 
                        under clauses (i) and (ii) of subparagraph (B) 
                        shall be shared with Inspector General of the 
                        Department of Health and Human Services, the 
                        Inspector General of the Department of Labor, 
                        and the Inspector General of the Department of 
                        the Treasury, in accordance with subsection 
                        (a)(6)(B)(iii)(I).
                            ``(iii) State.--Any instances of 
                        noncompliance the Secretary discovers upon 
                        reviewing the comparative analyses requested 
                        under clauses (i) and (ii) of subparagraph (B) 
                        shall be shared with a State, in accordance 
                        with subsection (a)(6)(B)(iii)(II).''.
                                 <all>
```