29 U.S.C. § 1185a — Parity in mental health and substance

Page 581 TITLE 29—LABOR § 1185a ance issuer offering group health insurance cov- erage from negotiating the level and type of re- imbursement with a provider for care provided in accordance with this section. (f) Preemption; exception for health insurance coverage in certain States (1) In general The requirements of this section shall not apply with respect to health insurance cov- erage if there is a State law (as defined in sec- tion 1191(d)(1) of this title) for a State that regulates such coverage that is described in any of the following subparagraphs: (A) Such State law requires such coverage to provide for at least a 48-hour hospital length of stay following a normal vaginal de- livery and at least a 96-hour hospital length of stay following a cesarean section. (B) Such State law requires such coverage to provide for maternity and pediatric care in accordance with guidelines established by the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, or other established professional medical associations. (C) Such State law requires, in connection with such coverage for maternity care, that the hospital length of stay for such care is left to the decision of (or required to be made by) the attending provider in consulta- tion with the mother. (2) Construction Section 1191(a)(1) of this title shall not be construed as superseding a State law described in paragraph (1). (Pub. L. 93–406, title I, § 711, as added Pub. L. 104–204, title VI, § 603(a)(5), Sept. 26, 1996, 110 Stat. 2935.) Editorial Notes REFERENCES IN TEXT Section 1022(a)(1) of this title, referred to in subsec. (d), was redesignated section 1022(a) of this title by Pub. L. 105–34, title XV, § 1503(b)(1)(B), Aug. 5, 1997, 111 Stat. 1061. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable with respect to group health plans for plan years beginning on and after Jan. 1, 1998, see section 603(c) of Pub. L. 104–204, set out as an Effective Date of 1996 Amendment note under section 1003 of this title. § 1185a. Parity in mental health and substance use disorder benefits (a) In general (1) Aggregate lifetime limits 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 sub- stance use disorder benefits— (A) No lifetime limit If the plan or coverage does not include an aggregate lifetime limit on substantially all medical and surgical benefits, the plan or coverage may not impose any aggregate life- time limit on mental health or substance use disorder benefits. (B) Lifetime limit If the plan or coverage includes an aggre- gate lifetime limit on substantially all med- ical and surgical benefits (in this paragraph referred to as the ‘‘applicable lifetime limit’’), the plan or coverage shall either— (i) apply the applicable lifetime limit both to the medical and surgical benefits to which it otherwise would apply and to mental health and substance use disorder benefits and not distinguish in the applica- tion of such limit between such medical and surgical benefits and mental health and substance use disorder benefits; or (ii) not include any aggregate lifetime limit on mental health or substance use disorder benefits that is less than the ap- plicable lifetime limit. (C) Rule in case of different limits In the case of a plan or coverage that is not described in subparagraph (A) or (B) and that includes no or different aggregate life- time limits on different categories of med- ical and surgical benefits, the Secretary shall establish rules under which subpara- graph (B) is applied to such plan or coverage with respect to mental health and substance use disorder benefits by substituting for the applicable lifetime limit an average aggre- gate lifetime limit that is computed taking into account the weighted average of the ag- gregate lifetime limits applicable to such categories. (2) Annual limits 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 sub- stance use disorder benefits— (A) No annual limit If the plan or coverage does not include an annual limit on substantially all medical and surgical benefits, the plan or coverage may not impose any annual limit on mental health or substance use disorder benefits. (B) Annual limit If the plan or coverage includes an annual limit on substantially all medical and sur- gical benefits (in this paragraph referred to as the ‘‘applicable annual limit’’), the plan or coverage shall either— (i) apply the applicable annual limit both to medical and surgical benefits to which it otherwise would apply and to mental health and substance use disorder benefits and not distinguish in the applica- tion of such limit between such medical and surgical benefits and mental health and substance use disorder benefits; or (ii) not include any annual limit on men- tal health or substance use disorder bene- fits that is less than the applicable annual limit. Page 582 TITLE 29—LABOR § 1185a 1 So in original. The comma probably should be a period. (C) Rule in case of different limits In the case of a plan or coverage that is not described in subparagraph (A) or (B) and that includes no or different annual limits on different categories of medical and sur- gical benefits, the Secretary shall establish rules under which subparagraph (B) is ap- plied to such plan or coverage with respect to mental health and substance use disorder benefits by substituting for the applicable annual limit an average annual limit that is computed taking into account the weighted average of the annual limits applicable to such categories. (3) Financial requirements and treatment limi- tations (A) In general In the case of a group health plan (or health insurance coverage offered in connec- tion with such a plan) that provides both medical and surgical benefits and mental health or substance use disorder benefits, such plan or coverage shall ensure that— (i) the financial requirements applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant financial require- ments applied to substantially all medical and surgical benefits covered by the plan (or coverage), and there are no separate cost sharing requirements that are appli- cable only with respect to mental health or substance use disorder benefits; and (ii) the treatment limitations applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant treatment limita- tions applied to substantially all medical and surgical benefits covered by the plan (or coverage) and there are no separate treatment limitations that are applicable only with respect to mental health or sub- stance use disorder benefits. (B) Definitions In this paragraph: (i) Financial requirement The term ‘‘financial requirement’’ in- cludes deductibles, copayments, coinsur- ance, and out-of-pocket expenses, but ex- cludes an aggregate lifetime limit and an annual limit subject to paragraphs (1) and (2),1 (ii) Predominant A financial requirement or treatment limit is considered to be predominant if it is the most common or frequent of such type of limit or requirement. (iii) Treatment limitation The term ‘‘treatment limitation’’ in- cludes limits on the frequency of treat- ment, number of visits, days of coverage, or other similar limits on the scope or du- ration of treatment. (4) Availability of plan information The criteria for medical necessity deter- minations made under the plan with respect to mental health or substance use disorder bene- fits (or the health insurance coverage offered in connection with the plan with respect to such benefits) shall be made available by the plan administrator (or the health insurance issuer offering such coverage) in accordance with regulations to any current or potential participant, beneficiary, or contracting pro- vider upon request. The reason for any denial under the plan (or coverage) of reimbursement or payment for services with respect to mental health or substance use disorder benefits in the case of any participant or beneficiary shall, on request or as otherwise required, be made available by the plan administrator (or the health insurance issuer offering such cov- erage) to the participant or beneficiary in ac- cordance with regulations. (5) Out-of-network providers In the case of a plan or coverage that pro- vides both medical and surgical benefits and mental health or substance use disorder bene- fits, if the plan or coverage provides coverage for medical or surgical benefits provided by out-of-network providers, the plan or coverage shall provide coverage for mental health or substance use disorder benefits provided by out-of-network providers in a manner that is consistent with the requirements of this sec- tion. (6) Compliance program guidance document (A) In general The Secretary, the Secretary of Health and Human Services, and the Secretary of the Treasury, in consultation with the In- spector General of the Department of Health and Human Services, the Inspector General of the Department of Labor, and the Inspec- tor General of the Department of the Treas- ury, shall issue a compliance program guid- ance document to help improve compliance with this section, section 300gg–26 of title 42, and section 9812 of title 26, as applicable. In carrying out this paragraph, the Secretaries may take into consideration the 2016 publi- cation of the Department of Health and Human Services and the Department of Labor, entitled ‘‘Warning Signs - Plan or Policy Non-Quantitative Treatment Limita- tions (NQTLs) that Require Additional Anal- ysis to Determine Mental Health Parity Compliance’’. (B) Examples illustrating compliance and noncompliance (i) In general The compliance program guidance docu- ment required under this paragraph shall provide illustrative, de-identified examples (that do not disclose any protected health information or individually identifiable in- formation) of previous findings of compli- ance and noncompliance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable, based on inves- tigations of violations of such sections, in- cluding— (I) examples illustrating requirements for information disclosures and non- quantitative treatment limitations; and Page 583 TITLE 29—LABOR § 1185a (II) descriptions of the violations un- covered during the course of such inves- tigations. (ii) Nonquantitative treatment limitations To the extent that any example de- scribed in clause (i) involves a finding of compliance or noncompliance with regard to any requirement for nonquantitative treatment limitations, the example shall provide sufficient detail to fully explain such finding, including a full description of the criteria involved for approving medical and surgical benefits and the criteria in- volved for approving mental health and substance use disorder benefits. (iii) Access to additional information re- garding compliance In developing and issuing the compliance program guidance document required under this paragraph, the Secretaries spec- ified in subparagraph (A)— (I) shall enter into interagency agree- ments with the Inspector General of the Department of Health and Human Serv- ices, the Inspector General of the De- partment of Labor, and the Inspector General of the Department of the Treas- ury to share findings of compliance and noncompliance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable; and (II) shall seek to enter into an agree- ment with a State to share information on findings of compliance and non- compliance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable. (C) Recommendations The compliance program guidance docu- ment shall include recommendations to ad- vance compliance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable, and encourage the develop- ment and use of internal controls to monitor adherence to applicable statutes, regula- tions, and program requirements. Such in- ternal controls may include illustrative ex- amples of nonquantitative treatment limita- tions on mental health and substance use disorder benefits, which may fail to comply with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable, in relation to nonquantitative treatment limi- tations on medical and surgical benefits. (D) Updating the compliance program guid- ance document The Secretary, the Secretary of Health and Human Services, and the Secretary of the Treasury, in consultation with the In- spector General of the Department of Health and Human Services, the Inspector General of the Department of Labor, and the Inspec- tor General of the Department of the Treas- ury, shall update the compliance program guidance document every 2 years to include illustrative, de-identified examples (that do not disclose any protected health informa- tion or individually identifiable informa- tion) of previous findings of compliance and noncompliance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable. (7) Additional guidance (A) In general The Secretary, the Secretary of Health and Human Services, and the Secretary of the Treasury shall issue guidance to group health plans and health insurance issuers of- fering group health insurance coverage to assist such plans and issuers in satisfying the requirements of this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable. (B) Disclosure (i) Guidance for plans and issuers The guidance issued under this para- graph shall include clarifying information and illustrative examples of methods that group health plans and health insurance issuers offering group or individual health insurance coverage may use for disclosing information to ensure compliance with the requirements under this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable, (and any regulations pro- mulgated pursuant to such sections, as ap- plicable). (ii) Documents for participants, bene- ficiaries, contracting providers, or au- thorized representatives The guidance issued under this para- graph shall include clarifying information and illustrative examples of methods that group health plans and health insurance issuers offering group health insurance coverage may use to provide any partici- pant, beneficiary, contracting provider, or authorized representative, as applicable, with documents containing information that the health plans or issuers are re- quired to disclose to participants, bene- ficiaries, contracting providers, or author- ized representatives to ensure compliance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable, compliance with any regulation issued pursuant to such respective section, or compliance with any other applicable law or regulation. Such guidance shall include information that is comparative in nature with respect to— (I) nonquantitative treatment limita- tions for both medical and surgical bene- fits and mental health and substance use disorder benefits; (II) the processes, strategies, evi- dentiary standards, and other factors used to apply the limitations described in subclause (I); and (III) the application of the limitations described in subclause (I) to ensure that such limitations are applied in parity with respect to both medical and sur- gical benefits and mental health and substance use disorder benefits. (C) Nonquantitative treatment limitations The guidance issued under this paragraph shall include clarifying information and il- Page 584 TITLE 29—LABOR § 1185a lustrative examples of methods, processes, strategies, evidentiary standards, and other factors that group health plans and health insurance issuers offering group health in- surance coverage may use regarding the de- velopment and application of nonquantita- tive treatment limitations to ensure compli- ance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applica- ble, (and any regulations promulgated pur- suant to such respective section), includ- ing— (i) examples of methods of determining appropriate types of nonquantitative treatment limitations with respect to both medical and surgical benefits and mental health and substance use disorder benefits, including nonquantitative treatment limi- tations pertaining to— (I) medical management standards based on medical necessity or appro- priateness, or whether a treatment is ex- perimental or investigative; (II) limitations with respect to pre- scription drug formulary design; and (III) use of fail-first or step therapy protocols; (ii) examples of methods of deter- mining— (I) network admission standards (such as credentialing); and (II) factors used in provider reimburse- ment methodologies (such as service type, geographic market, demand for services, and provider supply, practice size, training, experience, and licensure) as such factors apply to network ade- quacy; (iii) examples of sources of information that may serve as evidentiary standards for the purposes of making determinations regarding the development and application of nonquantitative treatment limitations; (iv) examples of specific factors, and the evidentiary standards used to evaluate such factors, used by such plans or issuers in performing a nonquantitative treat- ment limitation analysis; (v) examples of how specific evidentiary standards may be used to determine whether treatments are considered experi- mental or investigative; (vi) examples of how specific evidentiary standards may be applied to each service category or classification of benefits; (vii) examples of methods of reaching ap- propriate coverage determinations for new mental health or substance use disorder treatments, such as evidence-based early intervention programs for individuals with a serious mental illness and types of med- ical management techniques; (viii) examples of methods of reaching appropriate coverage determinations for which there is an indirect relationship be- tween the covered mental health or sub- stance use disorder benefit and a tradi- tional covered medical and surgical ben- efit, such as residential treatment or hos- pitalizations involving voluntary or invol- untary commitment; and (ix) additional illustrative examples of methods, processes, strategies, evidentiary standards, and other factors for which the Secretary determines that additional guid- ance is necessary to improve compliance with this section, section 300gg–26 of title 42, or section 9812 of title 26, as applicable. (D) Public comment Prior to issuing any final guidance under this paragraph, the Secretary shall provide a public comment period of not less than 60 days during which any member of the public may provide comments on a draft of the guidance. (8) Compliance requirements (A) Nonquantitative treatment limitation (NQTL) requirements In the case of a group health plan or a health insurance issuer offering group health insurance coverage that provides both medical and surgical benefits and men- tal health or substance use disorder benefits and that imposes nonquantitative treatment limitations (referred to in this section as ‘‘NQTLs’’) on mental health or substance use disorder benefits, such plan or issuer shall perform and document comparative analyses of the design and application of NQTLs and, beginning 45 days after December 27, 2020, make available to the Secretary, upon re- quest, the comparative analyses and the fol- lowing information: (i) The specific plan or coverage terms or other relevant terms regarding the NQTLs, that applies to such plan or coverage, and a description of all mental health or sub- stance use disorder and medical or surgical benefits to which each such term applies in each respective benefits classification. (ii) The factors used to determine that the NQTLs will apply to mental health or substance use disorder benefits and med- ical or surgical benefits. (iii) The evidentiary standards used for the factors identified in clause (ii), when applicable, provided that every factor shall be defined, and any other source or evi- dence relied upon to design and apply the NQTLs to mental health or substance use disorder benefits and medical or surgical benefits. (iv) The comparative analyses dem- onstrating that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to mental health or substance use disorder benefits, as writ- ten and in operation, are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to medical or surgical benefits in the benefits classification. (v) The specific findings and conclusions reached by the group health plan or health insurance issuer with respect to the health insurance coverage, including any results of the analyses described in this subpara- graph that indicate that the plan or cov- erage is or is not in compliance with this section. Page 585 TITLE 29—LABOR § 1185a (B) Secretary request process (i) Submission upon request The Secretary shall request that a group health plan or a health insurance issuer of- fering group health insurance coverage submit the comparative analyses described in subparagraph (A) for plans that involve potential violations of this section or com- plaints regarding noncompliance with this section that concern NQTLs and any other instances in which the Secretary deter- mines appropriate. The Secretary shall re- quest not fewer than 20 such analyses per year. (ii) Additional information In instances in which the Secretary has concluded that the group health plan or health insurance issuer with respect to group health insurance coverage has not submitted sufficient information for the Secretary to review the comparative anal- yses described in subparagraph (A), as re- quested under clause (i), the Secretary shall specify to the plan or issuer the in- formation the plan or issuer must submit to be responsive to the request under clause (i) for the Secretary to review the comparative analyses described in sub- paragraph (A) for compliance with this section. Nothing in this paragraph shall require the Secretary to conclude that a group health plan or health insurance issuer is in compliance with this section solely based upon the inspection of the comparative analyses described in sub- paragraph (A), as requested under clause (i). (iii) Required action (I) In general In instances in which the Secretary has reviewed the comparative analyses described in subparagraph (A), as re- quested under clause (i), and determined that the group health plan or health in- surance issuer is not in compliance with this section, the plan or issuer— (aa) shall specify to the Secretary the actions the plan or issuer will take to be in compliance with this section and provide to the Secretary addi- tional comparative analyses described in subparagraph (A) that demonstrate compliance with this section not later than 45 days after the initial deter- mination by the Secretary that the plan or issuer is not in compliance; and (bb) following the 45-day corrective action period under item (aa), if the Secretary makes a final determination that the plan or issuer still is not in compliance with this section, not later than 7 days after such determination, shall notify all individuals enrolled in the plan or applicable health insurance coverage offered by the issuer that the plan or issuer, with respect to such coverage, has been determined to be not in compliance with this section. (II) Exemption from disclosure Documents or communications pro- duced in connection with the Secretary’s recommendations to a group health plan or health insurance issuer shall not be subject to disclosure pursuant to section 552 of title 5. (iv) Report Not later than 1 year after December 27, 2020, and not later than October 1 of each year thereafter, the Secretary shall sub- mit to Congress, and make publicly avail- able, a report that contains— (I) a summary of the comparative anal- yses requested under clause (i), including the identity of each group health plan or health insurance issuer, with respect to certain health insurance coverage that is determined to be not in compliance after the final determination by the Secretary described in clause (iii)(I)(bb); (II) the Secretary’s conclusions as to whether each group health plan or health insurance issuer submitted suffi- cient information for the Secretary to review the comparative analyses re- quested under clause (i) for compliance with this section; (III) for each group health plan or health insurance issuer that did submit sufficient information for the Secretary to review the comparative analyses re- quested under clause (i), the Secretary’s conclusions as to whether and why the plan or issuer is in compliance with the disclosure requirements under this sec- tion; (IV) the Secretary’s specifications de- scribed in clause (ii) for each group health plan or health insurance issuer that the Secretary determined did not submit sufficient information for the Secretary to review the comparative analyses requested under clause (i) for compliance with this section; and (V) the Secretary’s specifications de- scribed in clause (iii) of the actions each group health plan or health insurance issuer that the Secretary determined is not in compliance with this section must take to be in compliance with this sec- tion, including the reason why the Sec- retary determined the plan or issuer is not in compliance. (C) Compliance program guidance document update process (i) In general The Secretary shall include instances of noncompliance that the Secretary dis- covers upon reviewing the comparative analyses requested under subparagraph (B)(i) in the compliance program guidance document described in paragraph (6), as it is updated every 2 years, except that such instances shall not disclose any protected health information or individually identi- fiable information. (ii) Guidance and regulations Not later than 18 months after December 27, 2020, the Secretary shall finalize any Page 586 TITLE 29—LABOR § 1185a draft or interim guidance and regulations relating to mental health parity under this section. Such draft guidance shall include guidance to clarify the process and timeline for current and potential partici- pants and beneficiaries (and authorized representatives and health care providers of such participants and beneficiaries) with respect to plans to file complaints of such plans or issuers being in violation of this section, including guidance, by plan type, on the relevant State, regional, or national office with which such complaints should be filed. (iii) State The Secretary shall share information on findings of compliance and noncompli- ance discovered upon reviewing the com- parative analyses requested under sub- paragraph (B)(i) shall be shared with the State where the group health plan is lo- cated or the State where the health insur- ance issuer is licensed to do business for coverage offered by a health insurance issuer in the group market, in accordance with paragraph (6)(B)(iii)(II). (b) Construction Nothing in this section shall be construed— (1) as requiring a group health plan (or health insurance coverage offered in connec- tion with such a plan) to provide any mental health or substance use disorder benefits; or (2) in the case of a group health plan (or health insurance coverage offered in connec- tion with such a plan) that provides mental health or substance use disorder benefits, as affecting the terms and conditions of the plan or coverage relating to such benefits under the plan or coverage, except as provided in sub- section (a). (c) Exemptions (1) Small employer exemption (A) In general This section shall not apply to any group health plan (and group health insurance cov- erage offered in connection with a group health plan) for any plan year of a small em- ployer. (B) Small employer For purposes of subparagraph (A), the term ‘‘small employer’’ means, in connection with a group health plan with respect to a cal- endar year and a plan year, an employer who employed an average of at least 2 (or 1 in the case of an employer residing in a State that permits small groups to include a single in- dividual) but not more than 50 employees on business days during the preceding calendar year. (C) Application of certain rules in determina- tion of employer size For purposes of this paragraph— (i) Application of aggregation rule for em- ployers Rules similar to the rules under sub- sections (b), (c), (m), and (o) of section 414 of title 26 shall apply for purposes of treat- ing persons as a single employer. (ii) Employers not in existence in pre- ceding year In the case of an employer which was not in existence throughout the preceding cal- endar year, the determination of whether such employer is a small employer shall be based on the average number of employees that it is reasonably expected such em- ployer will employ on business days in the current calendar year. (iii) Predecessors Any reference in this paragraph to an employer shall include a reference to any predecessor of such employer. (2) Cost exemption (A) In general With respect to a group health plan (or health insurance coverage offered in connec- tion with such a plan), if the application of this section to such plan (or coverage) re- sults in an increase for the plan year in- volved of the actual total costs of coverage with respect to medical and surgical benefits and mental health and substance use dis- order benefits under the plan (as determined and certified under subparagraph (C)) by an amount that exceeds the applicable percent- age described in subparagraph (B) of the ac- tual total plan costs, the provisions of this section shall not apply to such plan (or cov- erage) during the following plan year, and such exemption shall apply to the plan (or coverage) for 1 plan year. An employer may elect to continue to apply mental health and substance use disorder parity pursuant to this section with respect to the group health plan (or coverage) involved regardless of any increase in total costs. (B) Applicable percentage With respect to a plan (or coverage), the applicable percentage described in this sub- paragraph shall be— (i) 2 percent in the case of the first plan year in which this section is applied; and (ii) 1 percent in the case of each subse- quent plan year. (C) Determinations by actuaries Determinations as to increases in actual costs under a plan (or coverage) for purposes of this section shall be made and certified by a qualified and licensed actuary who is a member in good standing of the American Academy of Actuaries. All such determina- tions shall be in a written report prepared by the actuary. The report, and all underlying documentation relied upon by the actuary, shall be maintained by the group health plan or health insurance issuer for a period of 6 years following the notification made under subparagraph (E). (D) 6-month determinations If a group health plan (or a health insur- ance issuer offering coverage in connection with a group health plan) seeks an exemp- tion under this paragraph, determinations Page 587 TITLE 29—LABOR § 1185a under subparagraph (A) shall be made after such plan (or coverage) has complied with this section for the first 6 months of the plan year involved. (E) Notification (i) In general A group health plan (or a health insur- ance issuer offering coverage in connection with a group health plan) that, based upon a certification described under subpara- graph (C), qualifies for an exemption under this paragraph, and elects to implement the exemption, shall promptly notify the Secretary, the appropriate State agencies, and participants and beneficiaries in the plan of such election. (ii) Requirement A notification to the Secretary under clause (i) shall include— (I) a description of the number of cov- ered lives under the plan (or coverage) involved at the time of the notification, and as applicable, at the time of any prior election of the cost-exemption under this paragraph by such plan (or coverage); (II) for both the plan year upon which a cost exemption is sought and the year prior, a description of the actual total costs of coverage with respect to medical and surgical benefits and mental health and substance use disorder benefits under the plan; and (III) for both the plan year upon which a cost exemption is sought and the year prior, the actual total costs of coverage with respect to mental health and sub- stance use disorder benefits under the plan. (iii) Confidentiality A notification to the Secretary under clause (i) shall be confidential. The Sec- retary shall make available, upon request and on not more than an annual basis, an anonymous itemization of such notifica- tions, that includes— (I) a breakdown of States by the size and type of employers submitting such notification; and (II) a summary of the data received under clause (ii). (F) Audits by appropriate agencies To determine compliance with this para- graph, the Secretary may audit the books and records of a group health plan or health insurance issuer relating to an exemption, including any actuarial reports prepared pursuant to subparagraph (C), during the 6 year period following the notification of such exemption under subparagraph (E). A State agency receiving a notification under subparagraph (E) may also conduct such an audit with respect to an exemption covered by such notification. (d) Separate application to each option offered In the case of a group health plan that offers a participant or beneficiary two or more benefit package options under the plan, the require- ments of this section shall be applied separately with respect to each such option. (e) Definitions For purposes of this section— (1) Aggregate lifetime limit The term ‘‘aggregate lifetime limit’’ means, with respect to benefits under a group health plan or health insurance coverage, a dollar limitation on the total amount that may be paid with respect to such benefits under the plan or health insurance coverage with respect to an individual or other coverage unit. (2) Annual limit The term ‘‘annual limit’’ means, with re- spect to benefits under a group health plan or health insurance coverage, a dollar limitation on the total amount of benefits that may be paid with respect to such benefits in a 12- month period under the plan or health insur- ance coverage with respect to an individual or other coverage unit. (3) Medical or surgical benefits The term ‘‘medical or surgical benefits’’ means benefits with respect to medical or sur- gical services, as defined under the terms of the plan or coverage (as the case may be), but does not include mental health or substance use disorder benefits. (4) Mental health benefits The term ‘‘mental health benefits’’ means benefits with respect to services for mental health conditions, as defined under the terms of the plan and in accordance with applicable Federal and State law. (5) Substance use disorder benefits The term ‘‘substance use disorder benefits’’ means benefits with respect to services for substance use disorders, as defined under the terms of the plan and in accordance with ap- plicable Federal and State law. (f) Secretary report The Secretary shall, by January 1, 2012, and every two years thereafter, submit to the appro- priate committees of Congress a report on com- pliance of group health plans (and health insur- ance coverage offered in connection with such plans) with the requirements of this section. Such report shall include the results of any sur- veys or audits on compliance of group health plans (and health insurance coverage offered in connection with such plans) with such require- ments and an analysis of the reasons for any failures to comply. (g) Notice and assistance The Secretary, in cooperation with the Secre- taries of Health and Human Services and Treas- ury, as appropriate, shall publish and widely dis- seminate guidance and information for group health plans, participants and beneficiaries, ap- plicable State and local regulatory bodies, and the National Association of Insurance Commis- sioners concerning the requirements of this sec- tion and shall provide assistance concerning such requirements and the continued operation of applicable State law. Such guidance and in- Page 588 TITLE 29—LABOR § 1185b formation shall inform participants and bene- ficiaries of how they may obtain assistance under this section, including, where appropriate, assistance from State consumer and insurance agencies. (Pub. L. 93–406, title I, § 712, as added Pub. L. 104–204, title VII, § 702(a), Sept. 26, 1996, 110 Stat. 2944; amended Pub. L. 107–116, title VII, § 701(a), Jan. 10, 2002, 115 Stat. 2228; Pub. L. 107–313, § 2(a), Dec. 2, 2002, 116 Stat. 2457; Pub. L. 108–197, § 2(a), Dec. 19, 2003, 117 Stat. 2898; Pub. L. 108–311, title III, § 302(b), Oct. 4, 2004, 118 Stat. 1178; Pub. L. 109–151, § 1(a), Dec. 30, 2005, 119 Stat. 2886; Pub. L. 109–432, div. A, title I, § 115(b), Dec. 20, 2006, 120 Stat. 2941; Pub. L. 110–245, title IV, § 401(b), June 17, 2008, 122 Stat. 1649; Pub. L. 110–343, div. C, title V, § 512(a), (g)(1)(A), Oct. 3, 2008, 122 Stat. 3881, 3892; Pub. L. 116–260, div. BB, title II, § 203(a)(2), Dec. 27, 2020, 134 Stat. 2903.) Editorial Notes AMENDMENTS 2020—Subsec. (a)(6) to (8). Pub. L. 116–260 added pars. (6) to (8). 2008—Pub. L. 110–343, § 512(g)(1)(A), amended section catchline generally. Prior to amendment, catchline read as follows: ‘‘Parity in application of certain limits to mental health benefits’’. Subsec. (a)(1), (2). Pub. L. 110–343, § 512(a)(8), sub- stituted ‘‘mental health or substance use disorder bene- fits’’ for ‘‘mental health benefits’’ wherever appearing in pars. (1)(introductory provisions), (A), and (B)(ii) and (2)(introductory provisions), (A), and (B)(ii). Pub. L. 110–343, § 512(a)(7), substituted ‘‘mental health and substance use disorder benefits’’ for ‘‘mental health benefits’’ wherever appearing in pars. (1)(B)(i) and (C) and (2)(B)(i) and (C). Subsec. (a)(3) to (5). Pub. L. 110–343, § 512(a)(1), added pars. (3) to (5). Subsec. (b)(1). Pub. L. 110–343, § 512(a)(8), substituted ‘‘mental health or substance use disorder benefits’’ for ‘‘mental health benefits’’. Subsec. (b)(2). Pub. L. 110–343, § 512(a)(2), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘in the case of a group health plan (or health in- surance coverage offered in connection with such a plan) that provides mental health benefits, as affecting the terms and conditions (including cost sharing, limits on numbers of visits or days of coverage, and require- ments relating to medical necessity) relating to the amount, duration, or scope of mental health benefits under the plan or coverage, except as specifically pro- vided in subsection (a) (in regard to parity in the impo- sition of aggregate lifetime limits and annual limits for mental health benefits).’’ Subsec. (c)(1)(B). Pub. L. 110–343, § 512(a)(3)(A), in- serted ‘‘(or 1 in the case of an employer residing in a State that permits small groups to include a single in- dividual)’’ after ‘‘of at least 2’’ and struck out ‘‘and who employs at least 2 employees on the first day of the plan year’’ after ‘‘preceding calendar year’’. Subsec. (c)(2). Pub. L. 110–343, § 512(a)(3)(B), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: ‘‘This section shall not apply with respect to a group health plan (or health insurance cov- erage offered in connection with a group health plan) if the application of this section to such plan (or to such coverage) results in an increase in the cost under the plan (or for such coverage) of at least 1 percent.’’ Subsec. (e)(3). Pub. L. 110–343, § 512(a)(8), substituted ‘‘mental health or substance use disorder benefits’’ for ‘‘mental health benefits’’. Subsec. (e)(4). Pub. L. 110–343, § 512(a)(8), which di- rected amendment of this section by substituting ‘‘mental health or substance use disorder benefits’’ for ‘‘mental health benefits’’ wherever appearing (except in provisions amended by Pub. L. 110–343, § 512(a)(7)), was not executed to par. (4) as added by Pub. L. 110–343, § 512(a)(4), to reflect the probable intent of Congress. See below. Pub. L. 110–343, § 512(a)(4), added par. (4) and struck out former par. (4). Text read as follows: ‘‘The term ‘mental health benefits’ means benefits with respect to mental health services, as defined under the terms of the plan or coverage (as the case may be), but does not include benefits with respect to treatment of substance abuse or chemical dependency.’’ Subsec. (e)(5). Pub. L. 110–343, § 512(a)(4), added par. (5). Subsec. (f). Pub. L. 110–343, § 512(a)(6), added subsec. (f). Pub. L. 110–343, § 512(a)(5), struck out subsec. (f). Text read as follows: ‘‘This section shall not apply to bene- fits for services furnished— ‘‘(1) on or after January 1, 2008, and before June 17, 2008, and ‘‘(2) after December 31, 2008..’’ Pub. L. 110–245 substituted ‘‘services furnished—’’ for ‘‘services furnished after December 31, 2007’’ and added pars. (1) and (2). Subsec. (g). Pub. L. 110–343, § 512(a)(6), added subsec. (g). 2006—Subsec. (f). Pub. L. 109–432 substituted ‘‘2007’’ for ‘‘2006’’. 2005—Subsec. (f). Pub. L. 109–151 substituted ‘‘Decem- ber 31, 2006’’ for ‘‘December 31, 2005’’. 2004—Subsec. (f). Pub. L. 108–311 substituted ‘‘after December 31, 2005’’ for ‘‘on or after December 31, 2004’’. 2003—Subsec. (f). Pub. L. 108–197 substituted ‘‘Decem- ber 31, 2004’’ for ‘‘December 31, 2003’’. 2002—Subsec. (f). Pub. L. 107–313 substituted ‘‘Decem- ber 31, 2003’’ for ‘‘December 31, 2002’’. Pub. L. 107–116 substituted ‘‘December 31, 2002’’ for ‘‘September 30, 2001’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–343 applicable with re- spect to group health plans for plan years beginning after the date that is 1 year after Oct. 3, 2008, except that amendment by section 512(a)(5) of Pub. L. 110–343 effective Jan. 1, 2009, with special rule for collective bargaining agreements, see section 512(e) of Pub. L. 110–343, set out as a note under section 300gg–26 of Title 42, The Public Health and Welfare. EFFECTIVE DATE Pub. L. 104–204, title VII, § 702(c), Sept. 26, 1996, 110 Stat. 2946, provided that: ‘‘The amendments made by this section [enacting this section] shall apply with re- spect to group health plans for plan years beginning on or after January 1, 1998.’’ § 1185b. Required coverage for reconstructive surgery following mastectomies (a) In general A group health plan, and a health insurance issuer providing health insurance coverage in connection with a group health plan, that pro- vides medical and surgical benefits with respect to a mastectomy shall provide, in a case of a participant or beneficiary who is receiving bene- fits in connection with a mastectomy and who elects breast reconstruction in connection with such mastectomy, coverage for— (1) all stages of reconstruction of the breast on which the mastectomy has been performed; (2) surgery and reconstruction of the other breast to produce a symmetrical appearance; and