II 116th CONGRESS 1st Session S. 1737 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.

1. Short title This Act may be cited as the Mental Health Parity Compliance Act . 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). .