Docket: CMS-2009-0040 

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 

Comment On: CMS-2009-0040-0048 

Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity Act of 2008 

Document: CMS-2009-0040-DRAFT-0089 

RI 

Submitter Information 

Name: Laurence Hirshberg 

Address: 

Cumberland, RI, 02864 

Organization: The NeuroDevelopment Center 

General Comment 

I am very supportive of most of the provisions of the interim final rules under the Paul Wellstone 

and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. These rules address 

many of the inequities in health insurance coverage of mental health care when compared to 

medical/surgical care that I have observed in the course of my 20 years in teaching, research, and 

mental health practice. 

However, in my opinion, two areas have not been sufficiently clarified. I am quite concerned that 

unless these points are more clearly specified in the final regulations, loopholes will remain that 

will permit widespread violation of the legislative intent of the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addiction Equity Act of 2008: 

1. In my opinion, the interim final rules do not define clearly enough the rules regulating the 

comprehensive scope of services parity between mental health/substance abuse services and 

medical/surgical services. Given the language of the Act and the positions already taken by the 

Departments in the interim final regulations, I request that the Final Rules clarify that benefits for 

MH/SUD must be comparable in scope to the benefits provided in medical/surgical care both 

across and within each classification. Unless parity in scope of services is required in the final 

regulations, the intent of the Act will not be achieved. 

PUBLIC SUBMISSION 

As of: May 03, 2010 

Received: May 02, 2010 

Status: Draft 

Category: Academic - OT005

Tracking No. 80ae55e5 

Comments Due: May 03, 2010

Submission Type: Web

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2. I strongly support the application of parity requirements to both QTLs and NQTLs as being 

consistent with the Act and allowing for broad application of the parity requirement with regard to 

treatment limitations. However, in order to implement the intent of the Act, the regulations must 

specify more clearly that any NQTLs that are applied by plans must be comparable for MH/SUD 

and medical surgical benefits, and that any NQTLs for MH/SUD must be no more restrictive than 

NQTLs that are predominant across the broad range of medical/surgical benefits. 

Attachments 

CMS-2009-0040-DRAFT-0089.1: RI

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Comments RE: Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and

Addiction Equity Act of 2008

I am a clinical psychologist and serve on the clinical faculty in the Department of Psychiatry and Human Behavior

of the Brown University School of Medicine. I have been in full time practice for more than 20 years, working

with children and adults with neurodevelopmental and neuropsychiatric problems. I have published and

presented on numerous topics in psychology in journals and at national and international conferences.

I am very supportive of most of the provisions of the interim final rules under the Paul Wellstone and Pete

Domenici Mental Health Parity and Addiction Equity Act of 2008.  These rules address many of the inequities in  

health insurance coverage of  mental health care when compared to medical/surgical care that I have observed

in over [your number of years] 20 years of mental health practice.  

However, in my opinion, two areas have not been sufficiently clarified. I am quite concerned that unless these

points are more clearly specified in the final regulations, loopholes will remain that will permit widespread

violation of the legislative intent of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction

Equity Act of 2008:

1. In my opinion, the interim final rules do not define clearly enough the rules regulating the

comprehensive scope of services parity between mental health/substance abuse services and

medical/surgical services. Given the language of the Act and the positions already taken by the

Departments in the interim final regulations, I  request that the Final Rules clarify that benefits for

MH/SUD must be comparable in scope to the benefits provided in medical/surgical care both across and

within each classification.  Unless parity in scope of services is required in the final regulations, the

intent of the Act will not be achieved.

2. I strongly support the application of parity requirements to both QTLs and NQTLs as being consistent

with the Act and allowing for broad application of the parity requirement with regard to treatment

limitations.  However, in order to implement the intent of the Act, the regulations must specify more

clearly that any NQTLs that are applied by plans must be comparable for MH/SUD  and medical surgical

benefits, and that any NQTLs  for MH/SUD must be no more restrictive than NQTLs that are

predominant across the broad range of medical/surgical benefits.  

The importance of the question of parity of scientific review criteria is well illustrated by experience with

EEG biofeedback for the treatment of ADHD. There is a substantial body of research demonstrating the

efficacy of this form of treatment. Fifteen studies have been published and were recently included in a

meta‐analysis. This includes 10 prospective controlled studies with credible active controls involving 476

subjects. These studies showed a large effect size for inattention and impulsivity and a moderate effect size

for hyperactivity. These effect sizes are equivalent to those shown for stimulant medication.  Four

prospective pre/post studies have been published involving 120 subjects, showing larger effect sizes.  

Predicted neurophysiological change has been demonstrated using fMRI, qEEG, and event related

potentials. Several studies have shown that the degree of improvement in brain function and symptoms is

positively correlated with the degree to which EEG change is shown during training sessions.  Several long

term follow‐up studies (3 and 6 months, and 1, 2, and 3 years after the training ended) have been

completed indicating that the improvement observed in these studies endures. However, despite this

substantial body of research, EEG biofeedback is not covered by most health insurers due to claims that

there is insufficient scientific evidence.
These same insurers however cover many medical surgical services with far inferior scientific support.  Much

more stringent and restrictive criteria are employed in scientific review of mental health and

substance abuse treatments than are met for the preponderance of medical surgical treatment. The

result is an egregious violation of the principles of parity and equality.

To give just one of many possible examples: The Journal of the American Medical Association (JAMA)

recently published a review of the evidence base supporting the joint cardiovascular practice guidelines

of the American College of Cardiology (ACC) and the American Heart Association (AHA). (Tricoci P, Allen

J, Kramer J, Califf R, Smith S (2008) Scientific Evidence Underlying the ACC/AHA Clinical Practice

Guidelines, JAMA, February 25, 2009—Vol 301, No.8 )

In this review, the 16 current practice guidelines that reported levels of scientific evidence were

reviewed and the degree of scientific support for 2711 specific practice recommendations was assessed

and paced into one of three categories:

• Level of evidence A: recommendation based on evidence from multiple randomized trials or metaanalyses

• Level of evidence B: recommendation based on evidence from a single randomized trial or

nonrandomized studies

• Level of evidence C: recommendation based on expert opinion, case studies, or standards of care.

The results show that only 11% of the 2711 recommendations are based on level of evidence A –

multiple randomized trials. Of the remaining recommendations, 41% are based on level of evidence B –

a single randomized trial or non‐randomized studies, and 48% are based on level C – expert opinion or

case studies.

This makes it clear that at least in cardiology, the actual scientific review criteria currently in use

in the predominant body of medical surgical practice, at least in cardiology, are less restrictive than those

routinely employed for scientific review of mental health and substance abuse treatment and

include anecdotal evidence (expert opinion), case studies, non‐randomized studies, or a single

randomized trial.  Specifically, health insurers routinely limit reimbursement of EEG biofeedback as lacking

scientific evidence, despite the fact that there is stronger evidence than for many covered services in cardiology.  

For this reason, it is critically important, in order to implement the Paul Wellstone and Pete Domenici Mental

Health Parity and Addiction Equity Act of 2008, that the regulations specify more clearly that any NQTLs that are

applied by plans must be comparable for MH/SUD  and medical surgical benefits, and that any NQTLs  for

MH/SUD must be no more restrictive than NQTLs that are predominant for all medical/surgical benefits.  

Thank you for your careful consideration of these requests.

Sincerely,

Laurence M. Hirshberg. Ph.D.

Clinical Assistant Professor

Alpert Medical School of Brown University   
Director, The NeuroDevelopment Center