Recovery in a mental health context, like rehabilitation in a more purely medical context, must
be included as a central feature of covered services.

The MHPAEA and IFR requires that the scope of such services are subject to the “comparable
and no more stringent” test as well as the “predominant and substantially all” standard. Section
5600 et seq sets out minimum standards for California public mental health services. Some
clearly may have no counterpart in private health services and this is admittedly a very broad
scope of services, yet this elucidation serves as a useful sort of check list to evaluate comparable
private sector health services to determine the applicability to and appropriate range of mental
health services in the private sector.

Access denied is parity defeated

A recent journal article which surveys the process of implementation of California’s mental
health insurance statute (AB 88, Thomson, 2000) concludes:

“[California] state regulators recognized that compliance with the benefit requirements
[within the California Mental Health Insurance Statute] was but one step to achieving the
objectives of the parity law. More regulatory oversight was instituted about five years
after the initial implementation . . . The 2008 federal parity law mandates assessments of
compliance, coverage, and costs; however, experiences in California .... suggest that
monitoring of health plan performance should include monitoring health plan
performance related to access and quality, in addition to monitoring coverage and
costs...”! (emphasis added)

Mathematica in 2002 issued a report” on the implementation of AB 88. The overarching intent of
AB 88 was to improve access to mental health treatment for those adults and children diagnosed
with the most severe, biologically-based mental disorders.

However, Mathematica reported that as early as 2000 there were widespread stakeholder
community concerns (including from employers) about the adequacy of provider panels,
particularly about the numbers of psychiatrists (especially child psychiatrists) available for the
expanded mental health benefits mandated by AB 88. In particular Mathematica found
widespread concurrence that the reported size of mental health provider networks was
misleading because of the number of providers not taking new patients or only available to a
very few-new managed care patients. This phenomenon of large lists of providers with at best
limited availability to new patients came to be called “phantom panels.”

The existence of phantom panels ultimately constrains the ability of the law to overcome the
stigma and discrimination associated with mental illness and substance abuse, and to improve
access to mental health services. Mathematica went on to report that payment issues, i.e., low
rates of reimbursement, figured significantly in reducing access to mental health services.

In concluding, Mathematica recommended further strategies to address provider unavailability
and increase access to mental health services. Among those strategies were expanded efforts to

t Psychiatric Services 60:1589-1594, December, 2009.
? A Snapshot of the Implementation of California's Mental Health Parity Law, March 2002, Prepared for the
California HealthCare Foundation, by Mathematica Policy Research, Inc., Princeton, NJ.



“The experience in California suggests that a limited list of diagnoses may be
unnecessary for cost-containment purposes, and such a list may produce unintended
consequences, such as delays in seeking treatment, incentives for “upcoding” from less
severe to more severe diagnoses, and a reversal of previous practice to assign the least
severe diagnosis to avoid labeling and stigma. Health plan executives indicated that
managed care arrangements and medical necessity determinations allowed for adequate
cost containment under parity.”°

The Departments have wisely introduced the concept of non-quantitative treatment limitations in
the IFR, and the intent of related language from the IFR seems clearly to dig deep into managed
care practices to excise the effects of non-equal treatment of mental and substance use disorders
relative to treatments for other health disorders. At the end of the day there should be neither
distinction nor arbitrary dividing line between the body and the brain and the treatments thereof.

(dat Hp —

Randall Hagar, President

2, Psychiatric Services 60:1589-1594, December, 2009


e Psychiatrist Services

e Licensed Mental Health Professional Services
Inpatient Psychiatric Services

Day Treatment Intensive Services

Day Rehabilitation

Crisis Intervention

Crisis Stabilization

Adult Residential Treatment Services

Crisis Residential Treatment Services
Psychiatric Health Facility Services

Case Management

Medication and Medication Support Services
Psychiatric Nursing Facility Services

e Electroconvulsive Therapy (ECT)

This scope of services (with the exception of ECT) is provided in CCR, Title 9 Regulations
which govern California’s Specialty Mental Health Medicaid Program (Medi-Cal). Not
surprisingly there has been strong sentiment amongst mental health advocates supporting, and
equally strong insurer and plan resistance to, this scope of services being applied to private
insurance and plans. Again, although California’s parity statute does not support this range of
benefits, MHPAEA and IFR would require this scope of services to achieve parity.

California Health and Safety Code Section 5600 et seq provides another kind of definition of
mental health services:

Any service directed toward early intervention in, or alleviation or prevention of, mental disorder
including, but not limited to:

¢ Diagnosis, evaluation, treatment, personal care, day care, respite care, special living
arrangements, community skill training, sheltered employment, socialization, case
management, transportation, information, referral, consultation, and community services.

e Rehabilitation and Support Services—treatment and rehabilitation services designed to
stabilize symptoms, and to develop, improve, and maintain the skills and supports
necessary to live in the community. . :

e Services and programs designed for persons with mental disabilities should be client
centered, in recognition of varying individual goals, diverse needs, concerns, strengths,
motivations, and disabilities.

Treatment and rehabilitation in the most appropriate and least restrictive setting.
Services to meet the special needs of children and youth, adults, and older adults as well
as those with dual and multiple co-occuring health, substance use, and/or health
disorders.

e All services should be provided in a manner to be sensitive to cultural diversity.

Regardless of whether publicly or privately covered mental health and substance use disorders
are diagnosable and respond well to treatment. However, many of the more severe disorders are
chronic and appropriately addressing the various dimensions of these disorders requires a
nuanced understanding and a broad range of medical, clinical and educational services.


recruit and re-credential psychiatrists, as well as a reduction of administrative burden on mental
health providers.

California’s Department of Managed Health Care (DMHC) itself has reported ° a significant
volume of complaints about phantom panels for patients seeking mental health treatment. Not
surprisingly it also found that an increase in reimbursement rates to mental health professionals
by itself is not enough to remedy the situation because, among other things, widely perceived
administrative complexity and burdens on clinician practices as a direct result of managed care
has resulted in many mental health clinicians refusing to accept or limited the number of
managed care patients in their practice.

A number of conditions’ are necessary to prevent and reverse ‘flight’ from managed care
behavioral organizations by mental health professionals.

One, contracts must be understandable and fair. > Two, reimbursement rates must be fair and
equitable, and meet “community standards”. Three, reimbursement must be reliable and timely.
Four, utilization review must be rational, evidence based, and serve the mental health needs of
the patient. Five, psychiatrist and primary care physicians, and other mental health professional
relationships must work in an integrated fashion that facilitates communication and coordinated
care for common patients.

And six, mental health clinicians want to practice clinical disciplines not be “paper pushers”
spending long periods of unpaid administrative time justifying and obtaining authorizations and
processing claims. The so-called “hassle factor” causes many psychiatrists to “vote with their
feet” leaving patients who believed they were insured

with the frustration of dealing with a managed care organization which has inadequate mental
health resources.°

A pair of surveys of the San Francisco Medical Society further underscores this point with a
dismal 25% - 33% rate of managed care participation among psychiatrist members of the
Society.

CCMH believes that resolving the issue of mental health network adequacy is of paramount
importance in any attempt to increase access to care. Further, the Departments must insure that
plans also demonstrate provider network sufficiency with regard to the subspecialties recognized
in the mental health disciplines. - .

CCMH believes that this experience in California strongly supports the idea that the Departments
must develop regulations addressing timely access to care. Whether or not the California model,

* Department of Managed Health Care, Mental Health Parity in California Mental: Health Parity Focused Survey
Project: A Summary of Survey Findings and Observations, 2006.

* Testimony of Lawrence Lurie, MD, Chair, American Psychiatric Association Managed Care Committee, to
DMHC CAP, January 5, 2005.

5 Managed Care Survey of members by the California Psychiatric Association, 2005.

° Written testimony of the California Psychiatric Association to DMHC, September 21, 2007: 2007 DMHC draft of
access regulations.

7 Access to Psychiatric Care Survey for San Francisco. Larry Lurie, MD. and Richard Shadoan, MD, San Francisco
Medical Society, 2003/2005.



CALIFORNIA COALITION FOR MENTAL HEALTH

American Association for Marriage and
Family Therapy California Division

California Alliance of Child and Family
Services

California Association of Health
Facilities

California Association of Marriage and
Family Therapists

California Association of Mental Health
Patients Rights Advocates

California Association of Social
Rehabilitation Agencies

California Council of Community
Mental Health Agencies

California Hospital Association

California Institute for Mental Health

California Mental Health Advocates for
Children and Youth

California Mental Health Directors
Association

California Mental Health Planning
Council

California Network of Mental Health
Clients

California Primary Care Association

California Psychiatric Association

California Psychological Association

California Society for Clinical Social
Work

California Women’s Mental Health
Policy Council

Disability Rights California
Mental Health Association in California

Mental Health Association of Santa
Barbara

NAMI California

National Association of Social Workers,
California Chapter

Occupational Therapy Association of
California, Ine.

Orange County Coalition for Mental
Health

San Diego Coalition for Mental Health

Service Employees International Union,
Local 1021

Suicide Prevention Advocacy Network,
California

United Advocates for Children and
Families

Submitted by email to: F-OHPSCA.EBSA@dol.gov

May 3, 2010

Office of Health Plan Standards and Compliance Assistance
Employee Benefits, Security Administration

Department of Labor

200 Constitution Avenue, NW

Washington, DC 20210

Attention: RIN 1210-AB30

Centers for Medicare and Medicaid Services
Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201

Attention: CMS--4140—IFC

Internal Revenue Service
Department of the Treasury
1111 Constitution Avenue, NW
Washington, DC 20224
Attention: REG-120692-09

RE: RIN 1210-AB30: Interim Final Rules, Paul Wellstone and Pete
Domenici Mental Health Parity and Addiction Equity Act of 2008
(@ocument ID EBSA-2009-0010-0409)

To The Departments:

The California Coalition for Mental Health (CCMH), which is
comprised of 29 California associations and organizations that represent
providers, families and consumer of mental health services - roughly 16
million beneficiaries and insureds - would like to commend the
Departments for the thorough and comprehensive interim regulations
which adequately and appropriately interpret and seek and in large part
succeed in implementing both the letter and the spirit of the Mental
Health Parity and Addiction Equity Act of 2008 (MHPAEA). We
believe that the interim final rules (IFR) represent the beginning of a
framework to make the implementation of the MHPAEA a success that
will meet the aims and goals of the authors, sponsors and supporters of
this seminal Federal legislation.

1127 - 11" Street, Suite 925, Sacramento, CA 95814

(916) 537-1 167 TEL (916) 447-2350 FAX mail@mhac.org EMAIL www.mhac.org WEBSITE


as represented by the Access Regulations of the DMHC%, is appropriate on a national scale is not
an issue that CCMH addresses here.

Out of Network Care

The CCMH would urge the Departments to develop further guidance relative to the issue of
non-contracted providers or out of network care. A high degree of utilization of out of network
care is often a function of the inadequacy of plan provider networks.

Inadequate networks can lead to delays in access to critical mental health services. Inadequate
networks can also result in complete inability to obtain services on the part of beneficiaries or
insureds. A factor which serves as perverse disincentives for plans to provide adequate networks
is that many patients seeking mental health services give up and pay out of pocket for a non-
contracted provider because obtaining a qualified mental health provider who is “in network”
and who has openings to see new patients proves to be difficult, time consuming, and sometimes
impossible, even for a highly motivated and sophisticated beneficiaries.

The aim of a new regulation component addressing these issues would be to provide simple, easy
procedures for the patient to obtain network mental health services without long, suspenseful and
anxiety provoking delays. Point of service options for patients will serve as a critical indicator of
a plans network capacity and ability to provide meaningful access to services.

Plans need to be required to report in a meaningful way on the degree to which they utilize single
case agreements and out of network care provided when reasonable timelines for obtaining
network care are not possible for the patient. A means of capturing data about the incidence of
patients who try, fail and give up needs to be developed and become required plan reporting.

The CCMH recommends that when a patient is unable to obtain timely services within
reasonable elapsed time standards consistent with plan obligation to provide timely access there
needs to be a further specified elapsed time period during which the plan must obtain that service
for the patient. If the plan tries and fails to obtain that service for the patient within the
specified time frame it needs to be clear that if a patient subsequently obtains the services of a
provider, when the plan has an allotted time to do so and has failed to obtain a provider within
those time frames, then the plan must pay the usual, customary and reasonable rate of any
provider that the patient has obtained.

The CCMH believes that such a provision serves as an incentive to plans to take steps which will
ensure more robust networks of providers as well as being fair to patients who must access and
utilize services. As mentioned above, an adequate provider panel in regard to subspecialties is
not only a critical dimension of providing quality care and providing appropriate access to care,
but of timely care.

Summing Up

The authors of the journal article note as well;

® California Code of Regulations, Title 28, Section 1300.67.2.2, accessed online at
http://wpso.dmhe.c: y/regulations/docs/regs/20/126 142023 1445.pdf, April 29, 2010.



CCMH would ask that in any immediately contemplated revision that the Departments not alter
the architecture of these regulations nor their terms, conditions or definitions, but seek only to
clarify certain provisions - which the CCMH will comment on - with the aim of providing
strengthened protections for patients who require mental health or substance use treatments
and/or care and their treatment providers.

Specifically, we ask that the elements preserved in further iterations include the distinctions
between financial requirements and quantitative as well as non-quantitative treatment limitations
~—and their related definitions - understandings absolutely necessary to successfully address
discrimination in the coverage and the treatment of these disorders.

CCMH also strongly supports the approach and language embodied in these elements of the
interim regulations:
e Predominant limitation applied to substantially all benefits standard
Not more stringent/restrictive standard
Six discrete classifications of benefits
A single deductible for MH/SU and Medical Services
Classification of MH/SU providers with PCPs for the purpose of determining cost sharing
standards

The Departments have invited additional comments on “whether and to what extent

MHPAEA addresses the scope of services or continuum of care provided by a group health plan
or health insurance coverage” since the regulations do not define scope of services, necessary
levels of care or service levels beyond the rough conceptual scheme identified in the six classes
of benefits. Neither do the interim regulations address access standards nor attempt to assure a
clinically appropriate continuum of care.

CCMH believes that the experience of California in implementing a mental health insurance
parity statute in the last decade demonstrates that rules that define scope of benefits, access
standards and appropriate continuum of care are necessary without which the legislative intent of
the MHPAEA will be frustrated.

Scope of Benefits

Six classifications of benefits are identified in the IFR for the purpose of applying parity. It must
be clear in the regulations that plans would be prohibited from creating further classifications
beyond the scope of the parity mandate for the purposes of circumventing the parity mandate.
The notion that all covered benefits are described in the universe of the six classifications should
be clearly and unambiguously articulated in strengthened language. The use of the term Benefits
in this instance also must be clearly identified as analogous to the scope or range of services
available whether within individual classifications or within the aggregate of the six
classifications.

There are a number of provisions of the MHPAEA and the IFR which requires parity in the
range of services provided and each operates to clearly forbid unpermitted variation among and
between the six classifications. For instance, the articulation of distinct classes of treatment
limitations - i.e., quantitative as well as non-quantitative limitations - serves as an effective
parsing tool to better analysis and determine the degree of parity between mental health and


medical scope of services. It is particularly critical to retain the language regarding non-
quantitative treatment limitations currently in the IFT in order to assess plan compliance.

The Departments must provide clear guidance so that the obligation of the states to oversee and
enforce the final regulations is effective and uniform. This will require a refined scheme of
further guidance not now in the IFT so that the Departments as well as the states can perform
their oversight and enforcement functions properly in a coordinated, congruent fashion consistent
with the MHPAEA and IFR.

One of the most compelling reasons for this expansion beyond the current scope of the IFR lies
in the fact that California is unique in having a Department of Insurance, and an Insurance
Commissioner, as well as a Department of Managed Health Care with mostly contiguous but
some overlapping jurisdictions. This triumvirate presents unique problems in MHPAEA and IFT
oversight both at the state and federal levels, and it is one reason underscoring the need to have
further guidance from the federal level.

As well, the other 49 states lack a Department of Managed Health Care so will lack the staff,
expertise and perhaps even the body of regulatory and statutory authorities to address purely
managed care issues — which comprise a large part of MHPAEA - another reason to provide
further federal structure for those states.

The California Code of Regulations (CCR), Title 28, Section 1300.67, provides a floor for basic
health care services that are required to be covered by plans and which must include selected
mental health pertinent services:

Physician Services

Other Licensed Health Professional Services

Inpatient Hospital Services

Ambulatory Care Services (Outpatient Hospital Services)
Diagnostic Laboratory and Radiological Services

Therapeutic Radiological Services

Home Health Services

Preventative Health Services

Health Education Services

24- Hour Emergency Health Services é

On the other hand, California Health and Safety Code Section 1374.72, California’s mental
health parity statute, provides for the following covered services:

Outpatient Services

Inpatient Hospital Services

Partial Hospitalization Services

Prescription Drugs (if a plan contract includes prescription drug coverage)

On the other hand, there is a strong presumption that the MHPAEA would — at least for medium
and large size employers — require a scope of mental health services in California no more
restrictive than the CCR Title 28 regulations cited above provide for health services. Thus the
health-comparable specialty mental health services would include: