Say My Name: The Department of Labor & Destiny's Child Have In Common--CHEATERS WILL BE CALLED OUT!

Part one, of many, till the end of this open comment period.

Readers of this newsletter know I have one true love: Open Comment Periods on Regulations.gov. Additionally, I enjoy using R+B to make points about regulatory matters. We need to act.¹ Please subscribe and share while we are at it….

The proposed rules would, if finalized, establish new requirements for group health plans and health insurance issuers offering group or individual health insurance coverage to collect and evaluate relevant data in a manner reasonably designed to assess the impact of a nonquantitative treatment limitation (NQTL) on access to mental health and substance use disorder (MH/SUD) benefits and medical/surgical (M/S) benefits, and consider the impact as part of the plan's or issuer's analysis of whether the NQTL, in operation, complies with the relevant provisions of the proposed rules.

—DOL Technical Guidance.

I even purchased a domain name recently… for this newsletter…

Welcome to opencommentoutsider.com.

Yes, it’s just a link to this newsletter. The Department of Labor released new Mental Health Parity law guidance yesterday, along with technical rules, and people keep asking me for a “TD; DR”…They are proposed rules. We need to comment in support of them.

I am here to tell you…it is too long. But YOU SHOULD READ IT.

I know you will not read any such thing. That is why you read this newsletter. Because you are sure I will read it and explain it to you, you will both get to “understand” and “be amused,” who can blame you? This will likely be a many-part series because it’s long. And with an introduction that reads:

This Technical Release sets out principles regarding the relevant data that group health plans and health insurance issuers would be required to collect and evaluate for NQTLs related to network composition to demonstrate compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA) and seeks public comments to inform guidance under the notice of proposed rulemaking (NPRM) released by the Departments of the Treasury (Treasury Department), Labor (DOL), and Health and Human Services (HHS) (collectively, the Departments), entitled Requirements Related to the Mental Health Parity and Addiction Equity Act.

You are probably ready to fall asleep. MHPAEA NPRM DOL HHS DOL NQTL might as well be the activation key to your most exciting software license circa 2004.

I will walk my readers through this document in a series of articles—which I promise is remarkable. And provide guidance on what open comments you could leave with the Feds supporting your point of view. I will include guidance on what you could say on behalf of major payers, if you work there, and from other perspectives².

The first and most important thing to understand is that humans wrote this document. Those humans have feelings. I suspect we can intuit their feelings. I will attempt to take a curious and mentalized stance towards the document's authors, so we can understand to whom we are appealing in our endless open comments.

This is poised to be a big deal. Entertainingly, one of the things the Department of Labor is responsible for is labor statistics themselves…It currently has 16,855 employees (as of 2022). They work for the government. Their home office is in Washington D.C.:

Frances Perkins Building 200 Constitution Avenue NW Washington, D.C., U.S. 38°53′33.13″N 77°0′51.94″W

Most crucially, and also speculatively, they have FEELINGS. I understand this may come as a shock. I am asking the readers of this newsletter to imagine, with me, the internal thoughts and feelings behind the authorship of the sections I will share with you!

It’s like, “What were they thinking” but for federal employees working at regulatory agencies. First, we can assume some people are watching the world around us. None of them took a job at a startup. None of them chose to make a ton of money using their eye for detail to do some PE play. These public servants like rules so much that they go to work WRITING those rules. I imagine writing rules and watching them not be enforced is frustrating. It is hard to argue that “updated rules clarifying prior rules” are not something one would do if those initial rules were followed faithfully. You don’t update rules if there is no problem with those rules and their compliance standards. You edit them for cheaters.

The Rules About Mental Health Parity Have Not Been Followed.

This is upsetting if you write rules or write guidance to allow for the enforcement of rules written by lawmakers. But they are not doctors; they are not newsletter shitposters; they are limited in what they can say and how they can say it. We will infer feelings…

Let’s start with a super-duper simple assumption test:

Nonquantitive Treatment Limitations (NQTLs) are the Cheating Boyfriends of Labor and Tax Law

I could get into the weeds on those words, but I won’t. NQTLs are breaking the rules. That is all you need to know. There are rules. There are rules broken. When you see “NQTL,” I want your brain to find-replace and scream: “CHEATERS!” like an enraged 5-year-old on a Monopoly Junior game they lost.

Every time you see “NQTL,”—think of circumventing your life’s work. Think of Beyonce catching her boyfriend cheating. This very DOL update? It’s the song Say My Name by Destiny’s Child:

I’ll reference the lyrics for people who can’t dance right now:

Any other day
I would call and you would say
Baby how's your day
But today, it ain't the same
Every other word
Is "uh-huh" yeah "okay"
Could it be that you
Are at the crib with another lady

This is how you catch a cheater if you are Beyonce. You set a trap. You collect evidence…demand evidence. Evidence that will CATCH THAT CHEATER. This is how Beyonce handles it:

Say my name, say my name
If no one is around you
Say baby I love you
If you ain't runnin' game
Say my name, say my name
You actin' kinda shady
Ain't callin' me baby
Why the sudden change

Do any of us think Beyonce is sincere in her request? No. She thinks—she is SURE—her man is running game. She has been cheated on. Now she just has to catch this cheating fool in the act. Come on…if no one else is there…why don’t you say my name? Beyonce and the rest of R+B are savvy actors when it comes to cheaters. They use COMPLIANCE STANDARDS and REPORTING REQUIREMENTS.

Beyonce went to work in the music business. DOL employees went to work in government. They are both writing the same song, with the same goal, just in different genres.

It is a compliance standard and a reporting requirement. The DOL’s version of this sounds like they have been dating a real dog:

the guidance would define standards for the data elements specified by the Departments and set forth a potential enforcement safe harbor for plans and issuers that include data in their comparative analyses that demonstrate they meet or exceed all the standards with respect to NQTLs related to network composition, for a specified period.

In R+B Speak,

“So look, just tell me. Just tell me you’ve been cheating. The truth shall set you free. Nothing bad will happen if you tell me everything.”

I want to let people understand…the Department of Labor… has been a good woman dating terrible men who have been cheating. They have to say it differently. Big Health? …they have been lying cheaters on the order of convicted rapist R. Kelly:

R.’s example of “how real shit gets when you are talking to your girl” is deeply disingenuous. Even calling the song “Real Talk” is an utter and total lie:

Girl, I'm not about to sit up here and argue with you about who's to blame
I call no names, real talk
See, girl, the only thing I'm trying to establish with you is not
Who's right or who's wrong, but what's right and what's wrong
Real talk
Just because your friend says she saw me at a club with some other bitches
Sitting in VIP, smoking, and drinking and kicking it…

The gaslighting and lies are bold-faced—he’s interested in compliance with the letter, not the spirit of the law. He’s a convicted criminal now, and we all know it, but his songs, it’s flim-flam. He’s a liar and a convicted criminal for grave crimes:

“This indictment demonstrates our office’s commitment to holding individuals such as Kelly accountable for criminal sexual abuse of minors, protecting the victims of such crimes, and punishing those who obstruct law enforcement investigations,” said U.S. Attorney Lausch.  “I thank the courageous individuals who provided law enforcement with important information related to these allegations, and I encourage others with helpful information to do the same.  Together with our law enforcement partners and with the help of victims and other witnesses, we will continue to investigate and prosecute individuals who sexually exploit children vigorously.”

But someone had to call him out before he could go to jail for the rest of his life. They had to catch him cheating on the rules of a decent society and its laws, record them, build a case, arrest him, and put him on trial.

And he went to jail. The DOL might feel the same about its rules being circumvented…

Under the special rule in the NPRM, if finalized, material differences in access would indicate that one or more of a plan's or issuer's NQTLs related to network composition fails to comply with MHPAEA.

Say My Name…which in this context will document an NQTL.

Stay tuned for the next hit track.

1. NOW.

2. I am doing this part as both actual advice and with deeply satirical intent.