II 115th CONGRESS 2d Session S. 2301 IN THE SENATE OF THE UNITED STATES January 11, 2018 Ms. Warren (for herself, Mr. Brown , Mr. Blumenthal , Ms. Baldwin , Ms. Smith , Mr. Markey , Mr. Booker , Mr. Murphy , Mr. Sanders , Ms. Stabenow , Mr. Kaine , Ms. Harris , and Ms. Hassan ) 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.

1. Short title This Act may be cited as the Behavioral Health Coverage Transparency Act of 2018 . 2. Strengthening parity in mental health and substance use disorder benefits (a) Public Health Service Act Section 2726(a) of the Public Health Service Act ( 42 U.S.C. 300gg–26(a) ) is amended by adding at the end the following new paragraph: (8) Disclosure and enforcement requirements (A) Disclosure requirements (i) Regulations Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Labor and the Treasury, shall issue regulations for carrying out this section, including an explanation of documents that group health plans and health insurance issuers offering group or individual health insurance coverage shall disclose in accordance with clause (ii), the process governing the disclosure of such documents, and analyses that such plans and issuers shall conduct in order to demonstrate compliance with this section. (ii) Disclosure requirements The documents required to be disclosed by a group health plan or a health insurance issuer offering group or individual health insurance under clause (i) shall include an annual report that details the specific analyses performed to ensure compliance of such plan or issuer with this section, including any regulation promulgated pursuant to this section. At a minimum, with respect to the application of nonquantitative treatment limitations (in this paragraph referred to as NQTLs ) to benefits under the plan or coverage, such report shall— (I) identify the specific factors the plan or issuer used in performing its NQTLs analysis; (II) identify and define the specific evidentiary standards relied on to evaluate such factors; (III) describe how the evidentiary standards are applied to each service category for mental health benefits, substance use disorder benefits, medical benefits, and surgical benefits; (IV) disclose the results of the analyses of the specific evidentiary standards in each service category; and (V) disclose the specific findings of the plan or issuer in each service category and the conclusions reached with respect to whether the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to mental health or substance use disorder benefits are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to medical and surgical benefits in the same classification. (iii) Guidance Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Labor and the Treasury, shall issue guidance to group health plans and health insurance issuers offering group or individual health insurance coverage on how to satisfy the requirements of this section, with respect to making information available to current and potential participants and beneficiaries. Such information shall include— (I) certificate of coverage documents and instruments under which the plan or coverage involved is administered and operated that specify, include, or refer to procedures, formulas, and methodologies applied to determine a participant's or beneficiary’s benefit under the plan or coverage, regardless of whether such information is contained in a document designated as the plan document ; and (II) a disclosure of how the plan or issuer involved has provided that processes, strategies, evidentiary standards, and other factors used in applying the NQTLs to mental health or substance use disorder benefits are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to medical and surgical benefits in the same classification. (iv) Definitions In this paragraph and paragraph (7), the terms nonquantitative treatment limitations , comparable to , and applied no more stringently than have the meanings given such terms in sections 146.136 and 147.160 of title 45, Code of Federal Regulations (or any successor regulation). (B) Enforcement (i) Process for complaints Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Labor and the Treasury, shall, with respect to group health plans and health insurance issuers offering group or individual health insurance coverage, issue guidance to clarify the process and timeline for current and potential participants and beneficiaries (and authorized representatives and health care providers of such participants and beneficiaries) with respect to such plans and coverage to file formal complaints of such plans or issuers being in violation of this section, including guidance, by plan type, on the relevant State, regional, and national offices with which such complaints should be filed. (ii) Audits (I) Randomized audits Beginning 1 year after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Labor and the Treasury, as applicable, shall conduct randomized audits of group health plans and health insurance issuers offering group or individual health insurance coverage to determine compliance with this section. Such audits shall be conducted on no fewer than 12 plans or coverages per plan year. (II) Additional audits Beginning 1 year after the date of enactment of this paragraph, in the case of a group health plan or health insurance issuer offering group or individual health insurance coverage with respect to which any claim has been filed during a plan year, the Secretary, in cooperation with the Secretaries of Labor and the Treasury, as applicable, may audit the books and records of such plan or issuer to determine compliance with this section. (iii) Denial rates The Secretary, in cooperation with the Secretaries of Labor and the Treasury, shall collect information on the rates of and reasons for denial by group health plans and health insurance issuers offering group or individual health insurance coverage of claims for outpatient and inpatient mental health and substance use disorder benefits compared to the rates of and reasons for denial of claims for medical and surgical benefits. For the first plan year that begins on or after the date that is 2 years after the date of enactment of this paragraph, and each subsequent plan year, the Secretary, in such cooperation, shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate the information collected under the previous sentence with respect to the previous plan year. (C) Effective date Any requirements of group health plans and health insurance issuers offering group or individual health insurance coverage that are included in the regulations issued under subparagraph (A)(i), including the requirement described in subparagraph (A)(ii) to disclose documents, shall have an effective date of 1 year after the date of enactment of this paragraph. . (b) Employee Retirement Income Security Act of 1974 Section 712(a) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1185a(a) ) is amended by adding at the end the following new paragraph: (6) Disclosure and enforcement requirements (A) Disclosure requirements (i) Regulations Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and the Treasury, shall issue regulations for carrying out this section, including an explanation of documents that a group health plan (or health insurance issuer offering health insurance coverage in connection with such a plan) shall disclose in accordance with clause (ii), the process governing the disclosure of such documents, and analyses that such plans and issuers shall conduct in order to demonstrate compliance with this section. (ii) Disclosure requirements The documents required to be disclosed by a group health plan (or a health insurance issuer offering health insurance coverage in connection with such a plan) under clause (i) shall include an annual report that details the specific analyses performed to ensure compliance of such plan or issuer with this section, including any regulation promulgated pursuant to this section. At a minimum, with respect to the application of nonquantitative treatment limitations (in this paragraph referred to as NQTLs ) to benefits under the plan or coverage, such report shall— (I) identify the specific factors the plan or issuer used in performing its NQTLs analysis; (II) identify and define the specific evidentiary standards relied on to evaluate such factors; (III) describe how the evidentiary standards are applied to each service category for mental health benefits, substance use disorder benefits, medical benefits, and surgical benefits; (IV) disclose the results of the analyses of the specific evidentiary standards in each service category; and (V) disclose the specific findings of the plan or issuer in each service category and the conclusions reached with respect to whether the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to mental health or substance use disorder benefits are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to medical and surgical benefits in the same classification. (iii) Guidance Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and the Treasury, shall issue guidance to group health plans (and health insurance issuers offering health insurance coverage in connection with such plans) on how to satisfy the requirements of this section, with respect to making information available to current and potential participants and beneficiaries. Such information shall include— (I) certificate of coverage documents and instruments under which the plan or coverage involved is administered and operated that specify, include, or refer to procedures, formulas, and methodologies applied to determine a participant's or beneficiary’s benefit under the plan or coverage, regardless of whether such information is contained in a document designated as the plan document ; and (II) a disclosure of how the plan or issuer involved has provided that processes, strategies, evidentiary standards, and other factors used in applying the NQTLs to mental health or substance use disorder benefits are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to medical and surgical benefits in the same classification. (iv) Definitions In this paragraph, the terms nonquantitative treatment limitations , comparable to , and applied no more stringently than have the meanings given such terms in sections 146.136 and 147.160 of title 45, Code of Federal Regulations (or any successor regulation). (B) Enforcement (i) Process for complaints Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and the Treasury, shall, with respect to group health plans (and health insurance issuers offering health insurance coverage in connection with such plans), issue guidance to clarify the process and timeline for current and potential participants and beneficiaries (and authorized representatives and health care providers of such participants and beneficiaries) with respect to such plans and coverage to file formal complaints of such plans or issuers being in violation of this section, including guidance, by plan type, on the relevant State, regional, and national offices with which such complaints should be filed. (ii) Audits (I) Randomized audits Beginning 1 year after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and the Treasury, as applicable, shall conduct randomized audits of group health plans (and health insurance issuers offering health insurance coverage in connection with such plans) to determine compliance with this section. Such audits shall be conducted on no fewer than 12 plans or coverages per plan year. (II) Additional audits Beginning 1 year after the date of enactment of this paragraph, in the case of a group health plan (or health insurance issuer offering health insurance coverage in connection with such a plan) with respect to which any claim has been filed during a plan year, the Secretary, in cooperation with the Secretaries of Health and Human Services and the Treasury, as applicable, may audit the books and records of such plan or issuer to determine compliance with this section. (iii) Denial rates The Secretary, in cooperation with the Secretaries of Health and Human Services and the Treasury, shall collect information on the rates of and reasons for denial by group health plans (and health insurance issuers offering health insurance coverage in connection with such plans) of claims for outpatient and inpatient mental health and substance use disorder benefits compared to the rates of and reasons for denial of claims for medical and surgical benefits. For the first plan year that begins on or after the date that is 2 years after the date of enactment of this paragraph, and each subsequent plan year, the Secretary, in such cooperation, shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate the information collected under the previous sentence with respect to the previous plan year. (C) Effective date Any requirements of group health plans (or health insurance issuers offering health insurance coverage in connection with such plans) that are included in the regulations issued under subparagraph (A)(i), including the requirement described in subparagraph (A)(ii) to disclose documents, shall have an effective date of 1 year after the date of enactment of this paragraph. . (c) Internal Revenue Code of 1986 Section 9812(a) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph: (6) Disclosure and enforcement requirements (A) Disclosure requirements (i) Regulations Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and Labor, shall issue regulations for carrying out this section, including an explanation of documents that group health plans shall disclose in accordance with clause (ii), the process governing the disclosure of such documents, and analyses that such plans shall conduct in order to demonstrate compliance with this section. (ii) Disclosure requirements The documents required to be disclosed by a group health plan under clause (i) shall include an annual report that details the specific analyses performed to ensure compliance of such plan with this section, including any regulation promulgated pursuant to such section. At a minimum, with respect to the application of nonquantitative treatment limitations (in this paragraph referred to as NQTLs ) to benefits under the plan, such report shall— (I) identify the specific factors the plan used in performing its NQTLs analysis; (II) identify and define the specific evidentiary standards relied on to evaluate such factors; (III) describe how the evidentiary standards are applied to each service category for mental health benefits, substance use disorder benefits, medical benefits, and surgical benefits; (IV) disclose the results of the analyses of the specific evidentiary standards in each service category; and (V) disclose the specific findings of the plan in each service category and the conclusions reached with respect to whether the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to mental health or substance use disorder benefits are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to medical and surgical benefits in the same classification. (iii) Guidance Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and Labor, shall issue guidance to group health plans on how to satisfy the requirements of this section, with respect to making information available to current and potential participants and beneficiaries. Such information shall include— (I) certificate of coverage documents and instruments under which the plan involved is administered and operated that specify, include, or refer to procedures, formulas, and methodologies applied to determine a participant's or beneficiary’s benefit under the plan, regardless of whether such information is contained in a document designated as the plan document ; and (II) a disclosure of how the plan involved has provided that processes, strategies, evidentiary standards, and other factors used in applying the NQTLs to mental health or substance use disorder benefits are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the NQTLs to medical and surgical benefits in the same classification. (iv) Definitions In this paragraph, the terms nonquantitative treatment limitations , comparable to , and applied no more stringently than have the meanings given such terms in sections 146.136 and 147.160 of title 45, Code of Federal Regulations (or any successor regulation). (B) Enforcement (i) Process for complaints Not later than 6 months after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and Labor, shall, with respect to group health plans, issue guidance to clarify the process and timeline for current and potential participants and beneficiaries (and authorized representatives and health care providers of such participants and beneficiaries) with respect to such plans to file formal complaints of such plans being in violation of this section, including guidance, by plan type, on the relevant State, regional, and national offices with which such complaints should be filed. (ii) Audits (I) Randomized audits Beginning 1 year after the date of enactment of this paragraph, the Secretary, in cooperation with the Secretaries of Health and Human Services and Labor, as applicable, shall conduct randomized audits of group health plans to determine compliance with this section. Such audits shall be conducted on no fewer than 12 plans per plan year. (II) Additional audits Beginning 1 year after the date of enactment of this paragraph, in the case of a group health plan with respect to which any claim has been filed during a plan year, the Secretary, in cooperation with the Secretaries of Health and Human Services and Labor, as applicable, may audit the books and records of such plan to determine compliance with this section. (iii) Denial rates The Secretary, in cooperation with the Secretaries of Health and Human Services and Labor, shall collect information on the rates of and reasons for denial by group health plans of claims for outpatient and inpatient mental health and substance use disorder benefits compared to the rates of and reasons for denial of claims for medical and surgical benefits. For the first plan year that begins on or after the date that is 2 years after the date of enactment of this paragraph, and each subsequent plan year, the Secretary, in such cooperation, shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate the information collected under the previous sentence with respect to the previous plan year. (C) Effective date Any requirements of group health plans that are included in the regulations issued under subparagraph (A)(i), including the requirement described in subparagraph (A)(ii) to disclose documents, shall have an effective date of 1 year after the date of enactment of this paragraph. . 3. Consumer parity unit for mental health and substance use disorder parity violations (a) Definitions In this section: (1) Applicable State authority The term applicable State authority has the meaning given the term in section 2791 of the Public Health Service Act ( 42 U.S.C. 300gg–91 ). (2) Covered plan The term covered plan means any creditable coverage that is subject to any of the mental health parity laws. (3) Creditable coverage The term creditable coverage has the meaning given the term in section 2704(c) of the Public Health Service Act ( 42 U.S.C. 300gg–3(c) ). (4) Mental health parity laws The term mental health parity laws means— (A) section 2726 of the Public Health Service Act ( 42 U.S.C. 300gg–26 ); (B) section 712 of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1185a ); (C) section 9812 of the Internal Revenue Code of 1986; or (D) any other law that applies the requirements under any of the sections described in subparagraph (A), (B), or (C), or requirements that are substantially similar to those provided under any such section, as determined by the Secretary, to creditable coverage. (5) Secretary The term Secretary means the Secretary of Health and Human Services. (b) Establishment Not later than 6 months after the date of enactment of this Act, the Secretary, in consultation with the Secretary of Labor, the Secretary of the Treasury, and the head of any other applicable agency, shall establish a consumer parity unit with functions that include— (1) facilitating the centralized collection of, monitoring of, and response to consumer complaints regarding violations of mental health parity laws through developing and administering, in accordance with subsection (d)— (A) a single, toll-free telephone number; and (B) a public website portal, which may include enhancing a website portal in existence on the date of enactment of this Act; and (2) providing information to health care consumers regarding the disclosure requirements and enforcement under section 2726(a)(8) of the Public Health Service Act, section 712(a)(6) of the Employee Retirement Income Security Act of 1974, and section 9812(a)(6) of the Internal Revenue Code of 1986, as added by section 2. (c) Website portal The Secretary, in consultation with the Secretary of Labor, the Secretary of the Treasury, and the head of any other applicable agency, shall make available on the website portal established under subsection (b)(1)(B)— (1) any guidance and any reports issued by the Secretary, the Secretary of Labor, or the Secretary of the Treasury, under section 2726 of the Public Health Service Act, section 712 of the Employee Retirement Income Security Act of 1974, or section 9812 of the Internal Revenue Code of 1986, respectively, including the amendments to such sections made by section 2; (2) de-identified information on the results of, or progress on, any concluded or ongoing audits or investigations of the Secretary, the Secretary of Labor, or the Secretary of the Treasury, as applicable, under such section 2726, 712, or 9812, respectively; and (3) any information on rates of or reasons for denial collected by the Secretary, the Secretary of Labor, or the Secretary of the Treasury, pursuant to subsection (a)(8)(B)(iii) of such section 2726, subsection (a)(6)(B)(iii) of such section 712, or subsection (a)(6)(B)(iii) of such section 9812, respectively. (d) Response to consumer complaints and inquiries (1) Timely response to consumers The Secretary, in consultation with the Secretary of Labor, the Secretary of the Treasury, and the head of any other applicable agency, shall establish reasonable procedures for the consumer parity unit established under this section to provide a timely response (in writing if appropriate) to consumers regarding complaints received by the unit against, or inquiries concerning, a covered plan, including— (A) steps that have been taken by the appropriate State or Federal enforcement agency in response to the complaint or inquiry of the consumer; (B) any responses received by the appropriate State or Federal enforcement agency from the covered plan; (C) any follow-up actions or planned follow-up actions by the appropriate State or Federal enforcement agency in response to the complaint or inquiry of the consumer; and (D) contact information of the appropriate enforcement agency for the consumer to follow up on the complaint or inquiry. (2) Timely response to regulators A covered plan shall provide a timely response (in writing if appropriate) to the appropriate State or Federal enforcement agency having jurisdiction over such plan concerning a consumer complaint or inquiry submitted to the consumer parity unit established under this section including— (A) steps that have been taken by the plan to respond to the complaint or inquiry of the consumer; (B) any responses received by the plan from the consumer; and (C) follow-up actions or planned follow-up actions by the plan in response to the complaint or inquiry of the consumer. (3) Provision of information to consumers (A) In general A covered plan shall, in a timely manner, comply with a consumer request for information in the control or possession of such covered plan concerning the coverage the consumer obtained from such covered plan. (B) Exceptions Notwithstanding subparagraph (A), a covered plan, and any agency or entity having jurisdiction over a covered plan, may not be required by this paragraph to make available to the consumer any information required to be kept confidential by any other provision of law. (e) Reports (1) In general Not later than March 31 of each year, the Secretary, in consultation with the Secretary of Labor, the Secretary of the Treasury, and the head of any other applicable agency, shall submit a report to Congress on the complaints received by the consumer parity unit established under this section in the prior year regarding covered plans. (2) Contents Each such report shall include information and analysis about complaint numbers, complaint types, and, where applicable, information about the resolution of complaints. (3) Consumer parity unit posting The Secretary shall submit such reports to the consumer parity unit established under this section, and such unit shall post the reports on the website portal established under subsection (b)(1)(B). (f) Data sharing Subject to any applicable standards for Federal or State agencies with respect to protecting personally identifiable information and data security and integrity— (1) the consumer parity unit established under this section shall share consumer complaint information with the Secretary, and the head of any other applicable Federal or State agency; and (2) the Secretary, and the head of any other applicable Federal or State agency, shall share data relating to consumer complaints regarding covered plans with such unit. (g) Privacy considerations (1) In general In carrying out this section, the consumer parity unit established under this section and the Secretary, in consultation with the Secretary of Labor, the Secretary of the Treasury, and the head of any other applicable agency, shall take measures to ensure that proprietary, personal, or confidential consumer information that is protected from public disclosure under section 552(b) or 552a of title 5, United States Code, or any other provision of law, is not made public under this section. (2) Exceptions The consumer parity unit established under this section may not obtain from a covered plan any personally identifiable information about a consumer from the records of the covered plan, except— (A) if the records are reasonably described in a request by the consumer parity unit established under this section, and the consumer provides appropriate permission for the disclosure of such information by the covered plan to such unit; or (B) as may be specifically permitted or required under other applicable provisions of law, including HIPAA privacy and security law as defined in section 3009(a) of the Public Health Service Act ( 42 U.S.C. 300jj–19(a) ). (h) Collaboration (1) Agreements with other agencies The Secretary, the Secretary of Labor, the Secretary of the Treasury, and the head of any other applicable agency, shall enter into a memorandum of understanding with any affected Federal regulatory agency regarding procedures by which any covered plan, and any other agency having jurisdiction over a covered plan, shall comply with this section. (2) Agreements with States To the extent practicable, an applicable State authority may receive appropriate complaints from the consumer parity unit established under this section, if— (A) the applicable State authority has the functional capacity to receive calls or electronic reports routed by the unit; (B) the applicable State authority has satisfied any conditions of participation that the unit may establish, including treatment of personally identifiable information and sharing of information on complaint resolution or related compliance procedures and resources; and (C) participation by the applicable State authority includes measures necessary to protect personally identifiable information in accordance with standards that apply to Federal agencies with respect to protecting personally identifiable information and data security and integrity.