From: Shel Gross [mailto:shelgross@tds.net] 

Sent: Tuesday, May 26, 2009 1:39 PM 

To: EBSA, E-OHPSCA - EBSA 

Subject: Comments on Mental Health Parity and Addiction Equity Act.

Attached are comments on the Request for Information related to the Domenici-Wellstone Mental 

Health Parity and Addiction Equity Act of 2008. 

Shel Gross

133 S. Butler St., Rm. 330

Madison, WI 53703

Ph: 608-250-4368

 

May is Mental Health Awareness month! Visit our web site at www.mhawisconsin.org to 

learn more about the Live Your Life Well campaign and the 10 tools that can help combat 

stress and promote health and well being. 
www.mhawisconsin.org 

734 N. 4th St., Suite 200, Milwaukee, WI 53203 • P: 414.276.3122 • F: 414.276.3124 

133 S. Butler St., Room 330, Madison, WI 53703 • P: 608.250.4368 • F: 608.442.7907 

May 26, 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 Wisconsin (MHA) 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. 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 

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, co-payments, 

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 requirements that are applied more frequently and with higher 

standards for approval; 
www.mhawisconsin.org 

734 N. 4th St., Suite 200, Milwaukee, WI 53203 • P: 414.276.3122 • F: 414.276.3124 

133 S. Butler St., Room 330, Madison, WI 53703 • P: 608.250.4368 • F: 608.442.7907 

• Medical necessity and appropriateness criteria that fail to take into account the degree to 

which maintaining social, vocational and daily life skills functioning is an important goal 

of treatment; 

• Exclusion of certain specialized services like collaborative care, assertive community 

treatment, residential treatment, and partial hospitalization which are critical components 

of the continuum of care; 

• Limitations on covering specific types of providers and more restrictive provider 

licensure requirements; 

• Higher standards for demonstrating the evidence-base or cost effectiveness for treatments 

in order for them to be covered; 

• More frequent restrictions on treatments due to experimental status; 

• Requirements to prove current threat of harm to self or others as the justification for 

inpatient care and continuing stay requirements that limit the ability to allow consumers 

to become sufficiently stabilized prior to discharge; 

• With regard to medications, "fail first" or “step therapy” policies that require consumers 

to suffer adverse outcomes from a preferred medication before the medication 

recommended by their providers—or one that has been successfully used by them in the 

past—will be covered; and 

• Separate deductibles or lifetime limits in addition to those required for all other services.. 

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.(1) 

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. 
www.mhawisconsin.org 

734 N. 4th St., Suite 200, Milwaukee, WI 53203 • P: 414.276.3122 • F: 414.276.3124 

133 S. Butler St., Room 330, Madison, WI 53703 • P: 608.250.4368 • F: 608.442.7907 

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: 

• Parity—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?

Because of the items noted under #1 above, it is critical to implement the requirement for 

transparency of the medical necessity determination process contained in MHPAEA. Most 

medical necessity standards used by the health plans seem to focus on the following criteria: 

• whether the treatment accords with professional standards of practice; 

• whether there is sufficient evidence to demonstrate effectiveness; 

• whether the treatment is considered medical as opposed to social or custodial; and 

• whether the treatment is considered cost-effective by the insurer. 

The following additional clarifications would make this criteria better: 

• Evidence from national experts should be considered if peer-reviewed literature is not 

available; 

• Services must be available to maintain or restore function and to prevent or ameliorate 

medical conditions in addition to treating injuries or illnesses; and 
www.mhawisconsin.org 

734 N. 4th St., Suite 200, Milwaukee, WI 53203 • P: 414.276.3122 • F: 414.276.3124 

133 S. Butler St., Room 330, Madison, WI 53703 • P: 608.250.4368 • F: 608.442.7907 

• Cost effectiveness does not necessarily mean lowest cost—a treatment that is less 

expensive but is not as effective or is not provided by a provider qualified to deliver that 

treatment may be less cost effective because the best outcomes will not be achieved.. 

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 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-of-network coverage, the Departments are 

interested in finding out whether plans currently provide out-of-network coverage for mental 

health and substance use disorder benefits. If so, how is such coverage the same as or different 

than out-of-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 
www.mhawisconsin.org 

734 N. 4th St., Suite 200, Milwaukee, WI 53203 • P: 414.276.3122 • F: 414.276.3124 

133 S. Butler St., Room 330, Madison, WI 53703 • P: 608.250.4368 • F: 608.442.7907 

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 or actuarial projections. Such projections have notoriously 

overstated the impact of parity on costs when compared to actual implementation in states that 

have enacted parity laws up to this point. 

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 benefits.”