formerly Mental Health Association in Texas

www.mhatexas.org

Gyl Wadge, Director of Public Policy, MHAT 1210 San Antonio Street, Ste 200, Austin, Texas 78701• P: 512.454.3706, ext. 203 • F: 512.454.3725

EXECUTIVE COMMITTEE

Chair

Connie Wilson, Ph.D.

Immediate Past Chair

Graciela Cigarroa, J.D.

President/CEO

Lynn Lasky Clark, LMSW

Vice Chairs

David Halpern, J.D.

Jean Setzer, Ph.D.

John Theiss, Ph.D.

Phyllis Jack Moore

Treasurer

Clint Kuenemann

Secretary

Mike Peterson, J.D.

Member-at-Large

Bob Stanzel

BOARD OF DIRECTORS

Matthew Avila, Ph.D.

Allen Castro, Ph.D.

James Castro

Veronica de Lafuente

Norma G. Delgado

Jill Ferrell

Diane Frank

Joe Geraci, J.D.

Sue Ann Gilman

Gary Hidalgo

Jessie Jacobs

Pat Koch, Ph.D.

Kathryn Kotrla, M.D.

Janey Briscoe Marmion

Casey McPherson

Davis Niendorff

Joe Nixon, J.D.

Vernon Pierce

Melissa Potapova, J.D.

Joe Powell

Rachel Rust, J.D.

Truman Thomas

ADVISORY BOARD

Jerry R. Grammer, Ph.D.

Founding Chair

Kenneth Altshuler, M.D.

Danny Baker

Dewey A. Biscotto

The Honorable Dolph Briscoe, Jr.

Denton A. Cooley, M.D.

Kathy Cronkite

Libby Doggett

Tom Hamilton, Ph.D.

Stormy Hull

Rusty Kelley, J.D.

D. Kent Lance, Jr.

Jim McIngvale

Rosie Moncrief

Ambassador Lyndon L. Olson, Jr. 

Corbin J. Robertson, Jr.

Regina J. Rogers, J.D.

Debby Hay Spradley

John Thompson, Jr.

HONORARY BOARD MEMBERS

Diana Hobby, Ph.D.

Stella C. Mullins

Carole Keeton Strayhorn

May 27, 2009

Office of Health Plan Standards and Compliance Assistance

Employee Benefits Security Administration, Room N-5653

U.S Department of Labor

200 Constitution 

Washington, DC 20210

Attention: MHPAEA Comments

To Whom It May Concern:

Mental Health America of Texas appreciates the opportunity to 

respond to the Request for Information Regarding the Paul Wellstone 

and Pete Domenici Mental Health Parity and Addiction Equity Act 

(MHPAEA) of 2008 published in the Federal Register on April 28, 

2009. 

In enacting the MHPAEA, Congress made clear that the goal of this 

new law was to remedy the long history of employers and insurers not 

providing comparable coverage for mental health and substance use 

treatment versus medical and surgical benefits.[1] In order to achieve 

this goal the implementing regulations must reflect the 

patient/consumer focus and protective intent of this law and ensure 

access to a meaningful range of evidence-based interventions. 

An overly strict reading of the MHPAEA could thwart its fundamental 

purpose and result in a situation similar to the outcome following 

enactment of the Mental Health Parity Act of 1996 when the vast 

majority of employers substituted new restrictions on access to mental 

health benefits, thereby evading the spirit of the law.
www.mhatexas.org

Gyl Wadge, Director of Public Policy, MHAT 1210 San Antonio Street, Ste 200, Austin, Texas 78701• P: 512.454.3706, ext. 203 • F: 512.454.3725

In light of these issues and concerns, our responses to the Request for Information are 

as follows:

Questions from the Request for Information:

1. Financial Requirements and Treatment Limitations: 

Do plans currently impose other types of financial requirements or treatment 

limitations on benefits?

The MHPAEA defines the term "financial requirement" as including deductibles, copayments, coinsurance, and out-of-pocket expenses. The statute likewise defines the 

term "treatment limitation" as including limits on the frequency of treatment, number of 

visits, or days of coverage "or other similar limits on the scope or duration of treatment." 

But the lists of types of limitations and requirements included in these definitions should 

not be interpreted as the only treatment limitations and financial requirements to which 

parity applies under the new law. Other examples of treatment limitations that plans 

disproportionately use to limit the "scope or duration of treatment" for mental health or 

substance use conditions include the following: 

 Prior authorization that are applied more frequently and with higher standards for 

approval; 

 More restrictive medical necessity and appropriateness criteria; 

 "Fail first" policies that require consumers to suffer adverse outcomes from a 

preferred treatment or medication before the treatment or medication 

recommended by their providers will be covered; 

 Step therapy requirements that force consumers to try a series of preferred 

medications or treatments prior to accessing the recommended treatment; 

 Exclusion of certain specialized services like collaborative care, assertive 

community treatment, residential treatment, and partial hospitalization; 

 Higher evidence-based standards; 

 More frequent restrictions on treatments due to experimental status; 

 Stricter cost effectiveness requirements; 

 Lower provider fees; 

 Limitations on covering specific types of providers; 

 More restrictive provider licensure requirements; 

 More limited preferred provider networks or phantom networks with invalid phone 

numbers and names of providers no longer practicing or accepting new patients; 
www.mhatexas.org

Gyl Wadge, Director of Public Policy, MHAT 1210 San Antonio Street, Ste 200, Austin, Texas 78701• P: 512.454.3706, ext. 203 • F: 512.454.3725

 Requirement to prove current threat of harm to self or others as the justification 

for inpatient care; and 

 Separate deductibles or lifetime limits. 

The MHPAEA regulations should clarify that the parity standard applies to these other 

types of treatment limitations as well. Plans that manage their mental health and 

substance use benefits using these techniques must do so in a nondiscriminatory way. 

How do plans currently apply financial requirements or treatment limitations to 

(1) medical or surgical benefits and (2) mental health and substance use disorder 

benefits? Are these requirements or limitations applied differently to both classes 

of benefits? Do plans currently vary coverage levels within each class of 

benefits? 

Health plans often impose higher copays, deductibles, and other cost-sharing 

requirements as well as restricting the number of outpatient visits and inpatient days 

covered. But these benefit design limitations are only the most obvious examples of 

discriminatory treatment of mental health and substance use care.

Regulations implementing the MHPAEA must take into account evidence indicating 

mental health and substance use benefits have thus far been much more strictly 

managed than medical and surgical benefit. States with preexisting parity laws have not 

seen large increases in mental health and substance use care utilization, presumably 

due to strict medical management. A recent study reported that about two-thirds of 

primary care physicians could not get outpatient mental health services for their patients 

a rate that was at least twice as high as that for other services due in part to health plan 

barriers and inadequate coverage.[2]

Thus, it is critical that the regulations make clear that utilization management techniques 

qualify as treatment limitations and as such may not be applied to mental health and 

substance use benefits in a discriminatory and more restrictive fashion.

2. Terms/Provisions in the MHEAPA: 

What terms or provisions require additional clarification to facilitate compliance? 

What specific clarifications would be helpful?

The following terms and provisions should be clarified in the regulations:
www.mhatexas.org

Gyl Wadge, Director of Public Policy, MHAT 1210 San Antonio Street, Ste 200, Austin, Texas 78701• P: 512.454.3706, ext. 203 • F: 512.454.3725

 Parity means equal to or better than—The regulations should emphasize that 

financial requirements or treatment limitations for mental health and substance 

use benefits must be “no more restrictive than” those for medical and surgical 

benefits as stated in the MHPAEA. 

 Impact on state parity laws—Clarification is needed to emphasize the continued 

applicability of state laws that provide for greater protection of mental health and 

substance use benefits. 

 Application of the MHPAEA to Medicaid managed care plans—Since the 1996 

parity law applied to to Medicaid managed care plans the regulations should 

make clear that the new parity law applies to these plans as well. 

 Application of the MHPAEA to CHIP—Since the 1996 parity law applied to the 

Children’s Health Insurance Program, the new parity which amends the old, 

should also apply to CHIP. 

 The MHPAEA prohibits separate cost sharing and treatment limits—The statute 

clearly prohibits separate deductibles and other cost sharing and treatment limits 

but this is not well understood. 

3. Medical Necessity:

What information, if any, regarding the criteria for medical necessity 

determinations made under the plan with respect to mental health or substance 

use disorder benefits is currently made available by the plan? To whom is this 

information currently made available and how is it made available? Are there 

industry standards or best practices with respect to this information and 

communication of this information?

MHPAEA requires plans to provide the criteria they use to make medical necessity 

determinations to any current or potential enrollee or contracting provider upon request.

Most medical necessity standards used by the health plans seem to focus on the 

following criteria:

1. customary standard of practice whether the treatment accords with 

professional standards of practice; 

2. evidence-based whether there is sufficient evidence to demonstrate 

effectiveness; 

3. medical service whether the treatment is considered medical as opposed 

to social or custodial; and 

4. cost whether the treatment is considered cost-effective by the insurer.[3]

The following additional clarifications would make this criteria better:
www.mhatexas.org

Gyl Wadge, Director of Public Policy, MHAT 1210 San Antonio Street, Ste 200, Austin, Texas 78701• P: 512.454.3706, ext. 203 • F: 512.454.3725

1. Evidence from national experts should be considered if peer-reviewed 

literature is not available; 

2. Services must be available to maintain or restore function and to prevent 

or ameliorate medical conditions in addition to treating injuries or illnesses; 

and 

3. Cost effectiveness does not necessarily mean lowest cost. 

The regulations should require plans to do the following: 

 Set timeframes for disclosure of medical necessity criteria; 

 Detail appeal and enforcement mechanisms; 

 Make available to beneficiaries, upon request, the standards used to 

determine whether the criteria for medical necessity (e.g., standard of 

practice, strength of the evidence base, and definition of medical 

conditions) with regard to mental health and substance use treatments; 

and 

 Make available to beneficiaries, upon request, the standards used to 

assess whether the medical necessity criteria have been met for medical 

and surgical benefits. 

4. Denials of Reimbursement/Payment for Services: What information, if any, 

regarding the reasons for any denial under the plan of reimbursement or payment 

for services with respect to mental health or substance use disorder benefits is 

currently made available by the plan? To whom is this information currently made 

available and how is it made available? Are there industry standards or best 

practices with respect to this information and communication of this information?

The MHPAEA requires plans to provide the reasons for any coverage denials with 

respect to mental health or substance use benefits to any current or potential enrollee 

upon request.

The regulations should 

 specify that consumers may request at no charge copies of the 

documentation the plan used to make the coverage determination at 

issue; 

 set timeframes for disclosure of reasons for claims denials; and 

 Outline the process for appealing the determinations, including time 

frames and enforcement mechanisms. 

5. Out-of-Network Coverage: To gather more information on the scope of out-ofnetwork coverage, the Departments are interested in finding out whether plans 

currently provide out-of-network coverage for mental health and substance use 
www.mhatexas.org

Gyl Wadge, Director of Public Policy, MHAT 1210 San Antonio Street, Ste 200, Austin, Texas 78701• P: 512.454.3706, ext. 203 • F: 512.454.3725

disorder benefits. If so, how is such coverage the same as or different than outof-network coverage provided for medical and surgical benefits?

The regulations should require that plans provide information to consumers regarding 

the relative availability of in-network and out-of-network providers for each of the 

medical specialties in order to evaluate the adequacy of the networks and their 

equivalence

6. Cost Exemptions: Which aspects of the exemption for increased cost resulting 

from the parity requirement, if any, require additional guidance? Would model 

notices be helpful to facilitate disclosure to Federal agencies, State agencies, and 

participants and beneficiaries regarding a plan's or issuer's election to implement 

the cost exemption?

MHPAEA provides that plans may be exempt from the law if they can show that the 

parity requirements result in an increase in total costs of coverage by over 2 percent in 

the first year and one percent for each subsequent year.

The regulations should clarify that assessment of whether a plan qualifies for a cost 

exemption must be determined on a retrospective basis and based on real experience 

with increased cost instead of hypothetical costs. 

7. Other issues: The agencies have also stated that they will accept comments 

on any other issues relevant to the development of the MHPAEA regulations.

The regulations should provide a methodology for comparing types of service across 

medical specialty areas to determine their equivalence. In addition, the regulations 

could outline broad categories of care within which parity will be required; for example, 

inpatient in-network services as a category and inpatient out-of-network as a separate 

category.

Another issue to be addressed is whether only covering mental health medications 

constitutes providing a mental health benefit such that the parity requirements in the 

MHPAEA are triggered. To exclude medications from consideration as mental health 

benefits would imply that the new parity requirements do not apply to this essential form 

of mental health treatment that is one of the therapies most analogous to medical and 

surgical benefits. This result would be inconsistent with the intent of the MHPAEA to 

ensure equity between mental health/substance use benefits and medical/surgical 
www.mhatexas.org

Gyl Wadge, Director of Public Policy, MHAT 1210 San Antonio Street, Ste 200, Austin, Texas 78701• P: 512.454.3706, ext. 203 • F: 512.454.3725

benefits.”[4]

[1] H.R. REP. NO. 110-374, pt. 1 (2007) (Educ. & Labor Comm).

[2] Cunningham, P.J., Beyond Parity: Primary Care Physicians’ Perspectives on Access 

to Mental Health Care, Health Affairs, April 2009.

[3] Cite Sara Rosenbaum report on “Medical Necessity in Private Health Plans”

[4] H.R. REP. NO. 110-374, pt. 2, Ways and Means Comm., 2007.

Gyl Wadge

Director of Public Policy

Mental Health America of Texas

1210 San Antonio Street, Suite 200

Austin, Texas 78701

www.mhatexas.org

Phone: 512-454-3706, x203

Cell: 512-903-4186

Fax: 512-454-3725