Request for Information Regarding the Paul Wellstone and Pete Domenici Mental Health 

Parity and Addiction Equity Act of 2008 

Departments of Treasury, Health and Human Services, and Labor 

May 27, 2008 

The purpose of the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity Act of 2008 (Subtitle B of Public Law 110- 343) is to equalize mental 

health and addiction benefits with other health benefits. The Act seeks to end insurance 

coverage discrimination for those seeking to access mental health and substance use 

disorder benefits through their health insurance provider. 

Testimony from the Congressional hearings on mental health parity, as well as the 

fourteen nationwide field hearings, confirm that individuals with mental illness and 

substance abuse disorders experience discriminatory financial requirements and treatment 

limitations when seeking treatment. This discrimination can result in the denial of 

needed medical attention, increased use of emergency rooms, increased health care costs 

for co-occurring disorders, and premature death. Ending discrimination entails ensuring 

that every offered mental health benefit is offered in equity with medical and surgical 

benefits. Since comparing medical and surgical benefits to mental health benefits is not 

always straight forward, it is essential that the regulations are clear as to how this 

determinant will be made, ensuring that the Congressional intent of equivalency is met. 

In an effort to ensure that the regulations developed for mental health parity are 

consistent with the intent of the law, a number of key recommendations are made. 

1. It is essential that plans are held publically accountable as to how that 

determination is made, and that this criterion clearly and transparently be equitable to 

medical and surgical benefits. It should be clear what criteria will be used by health 

plans to make health coverage determinations, and how medical necessity is defined, in 

order to ensure that the same criterion are used to determine coverage for both physical 

and mental health conditions. The application of medical management tools or medical 

necessity determinations must be no more restrictive in mental health and substance use 

disorder benefits than as in medical and surgical benefits. 

2. The intent of this legislation is to ensure that patients have access to the full scope 

of services required for their condition. For example, if a doctor prescribes an anti-
depressant for a patient, the associated psychotherapy for this condition may be 

recommended by a medical professional, despite the fact that a comparable medical 

benefit does not exist. It is also intended that prescription drugs necessary to treat mental 

health conditions are considered as a part of covered services. The definitions in these 

regulations should be clarified in a way which provides for this, since not all treatment 

modalities for mental health conditions are analogous enough to that for medical and 

surgical conditions to make this comparison clear. 

Therefore, clarification may be necessary to some key terms, including “financial 

requirement,” “predominant,” and “treatment limitation,” in order to eliminate loopholes 

due to ambiguity. Specifically, clarity on the criteria on which determinations of 

“predominant treatment” and “treatment limitations” are based is needed. It may be 

useful to create categories of care in which comparisons will be made. For instance, inpatient, in network services for medical and surgical benefits could be compared to inpatient, in network services for mental health benefits. Other categories of comparison 

could be outpatient/in-network; inpatient/out-of-network; and outpatient/out-of-network. 

3. In order to offer equitable coverage, it is essential to be clear as to how that equity 

will be evaluated. Insurers must use for mental health benefits the same determinative 

methodology applied to physical health benefits. Criteria used and reasons for denials 

relating to mental health and addiction treatment must be made to beneficiaries in clear 

terms, and it must be clear that these standards are equitable to those that are provided for 

medical and surgical benefits. 

Further, the law required that guidance and information should be provided by the 

Federal agencies to inform participants and beneficiaries on how they may obtain 

assistance from the state consumer and insurance agencies. This language was included 

to ensure that individuals have the ability to challenge their employer or health plan if 

there are concerns that they are not following the requirements of this law. This guidance 

should be provided as soon as possible and be as clear as possible. 

4. It was the intent of Congress that separate pools of deductibles for mental health 

and medical and surgical benefits be construed as financial discrimination. It would not 

be equitable for a plan to require an individual to pay an out of pocket deductable for 

medical and surgical benefits and then a separate deductable for mental health benefits. 

Further, it would impose a significant barrier to treatment for many individuals. Separate 

but equal deductibles and out of pocket maximums are discriminatory and should be 

prohibited. 

5. Network design should not be a means of restricting coverage. Parity in “out of 

network” requirements were included specifically to combat discrimination through 

limited networks for mental health and substance use disorder benefits. If a plan has an 

out of network policy for its medical surgical benefits, the polices for out of network care 

for mental health and substance use disorder benefits should be no more restrictive 

financially or based on treatment limitations. This will allow individuals to get the 

services they need whether they can be found in or out of the network. 
6. Field hearings revealed the existence of “phantom networks” that lacked 

sufficient mental health and addiction professionals to adequately manage the amount 

and scope of the clinical demands many of their subscribers faced, resulting in consumers 

choosing between providers without the required specialty or paying large out of pocket 

costs. We must ensure that there are enough and appropriate providers to provide 

services, so that network design does not become a means of restricting coverage. There 

are a wide range of mental health and substance abuse treatment providers (ie. 

psychiatrists, psychologists, marriage and family therapists, and/or counselors). 

Restricting the types or numbers of participating providers in a network should be 

construed as a treatment limitation. Further, participating providers must have the 

competencies and scope of practice expertise necessary to achieve equity with medical 

and surgical benefits. 

7. Since many states already have parity laws, and vary widely in what they do and 

do not require, clarity is needed on which states laws would be preempted and under what 

circumstances. The regulations could specify that anything not requiring equivalence 

between physical and mental health benefits is more restrictive. 

8. When evaluating cost exemption and small business exemptions, the regulations 

should make clear that actual experiential data be used when determining exemptions, 

rather than projections. If comparisons are made by category, as suggested above, the 

regulations should make clear that the cost exemption exclusion refers to increases in 

total costs. Further, it could be clarified that "the provisions of this section shall not 

apply to such plan (or coverage) during the following plan year, and such exemption shall 

apply to the plan (or coverage) for 1 plan year." Clarification would eliminate confusion 

around whether the plan gets exempt for the rest of that year and the following year, or 

just the following year. 

9. A recognized, independent standard of existing medical practice should be used 

to define whether a diagnosis or condition is classified as mental health condition or a 

medical or surgical condition. This will avoid the potential for an insurer to define a 

generally recognized mental health condition as a medical benefit and therefore not 

subject to parity. 

Thank you for your consideration.