May 3, 2010 

VIA ELECTRONIC SUBMISSION 

Department of Health and Human Services 

Centers for Medicaid and Medicare Service 

U.S. Department of Health and Human Services 

P.O. Box 8016 

Baltimore, MD 21244-1850 

Attention: CMS-4140-IFC 

Department of Labor 

Employee Benefits Security Administration 

Office of Health Plan Standards and Compliance Assistance 

Room N-5653, U.S. Department of Labor 

200 Constitution Ave. NW 

Washington, DC 20210 

Attention: RIN 1210-AB30 

Department of the Treasury 

Internal Revenue Service 

Room 5205, IRS 

P.O. Box 7604 

Ben Franklin Station 

Washington, DC 20044 

REG-120692-09 

Re: Comments to the Interim Final Rules Implementing the Paul Wellstone and 

Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 

Dear Departments: 

Thank you for the opportunity to submit comments regarding the interim final regulations 

implementing the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 (“MHPAEA”). Please consider this a joint submission by the 

following Massachusetts-based organizations, each of which is dedicated to the 

promotion of mental health parity: Mental Health Legal Advisors Committee, Health 

Care For All, National Alliance on Mental Illness of Massachusetts, Health Law 

Advocates, Massachusetts Society for the Prevention of Cruelty to Children, and 

Children’s Hospital Boston. 

We view the regulations as an important step forward in promoting the goals of 

MHPAEA to increase equity in insurance coverage and treatment for mental health and 

substance use disorder services. As advocates for individuals who utilize behavioral 

health services, our comments are informed by our extensive experience working on 

insurance coverage matters. In practice we have seen first-hand the disparities that can 
The Departments 

May 3, 2010 

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exist in access to treatment of behavioral health conditions versus medical conditions 

because of unfair coverage determinations and inconsistent application of standards. Our 

organizations have worked in Massachusetts to advocate for, develop, pass and oversee 

implementation of comprehensive behavioral health parity laws and, as a result of that 

work, have additional insights as to how obstacles to parity in coverage may persist, 

despite legislative intent, unless regulations effectively implement such laws. 

We share the hope of the Departments that these regulations will mitigate misapplications 

of MHPAEA and we seek to assist in developing regulations that enforce the 

enhancement of coverage created by MHPAEA as opposed to unduly restricting the 

statute’s provisions. 

I. Quantitative and Nonquantitative Treatment Limitations

We greatly appreciate the inclusion of both quantitative and nonquantitative treatment 

limitations as a prohibited action under the regulations. Our experience in Massachusetts, 

where such a limitation was not included in our Parity Laws, has suggested that plans or 

insurers use differing and, most often, more restrictive nonquantitative treatment 

limitations for mental health and substance use disorder services than for similar medical 

and surgical services. These include, for example, more frequent reviews of medical 

necessity for a particular mental health service than for a comparable medical service or 

differing standards in evaluating requests of out-of-network treatment. In addition, 

mental health managed care utilization review processes are different, more restrictive, 

and require more one-on-one conversations to “convince” payors that patients need the 

particular service. In Massachusetts, we have witnessed a proliferation of the use of 

“carve-out” insurance providers by both public and private insurers to manage delivery of 

mental health and substance use disorder benefits. These “carve-outs” typically create far 

more rigorous standards for nonquantitative treatment limitations such as pre-admission 

screenings, concurrent review standards, and medical necessity standards. We believe 

that the use of more rigorous standards by “carve-out” insurers is prohibited under the 

MHPAEA regulations and encourage clarification on this issue. 

We view the establishment of parity on these grounds as an important step forward in 

promoting improved access to mental health and substance use disorder treatment. We 

support the inclusion of additional examples in the regulations to further illustrate the 

application of MHPAEA to nonquantitative treatment limitations and additional 

clarification that any use of nonquantitative treatment limitations in evaluating mental 

health and substance use disorder benefits must be comparable and applied no more 

stringently than for medical/surgical benefits. 

II. Additional Clarity as to Covered Diagnoses, Conditions and Services

We advocate for greater clarity as to which diagnoses, conditions and services will be 

covered. While increasing specificity, the guidelines should require the broadest possible 

scope of coverage. The MHPAEA defines mental health and substance use disorder 
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May 3, 2010 

Page 3 of 5 

benefits in terms of services for mental health/substance use disorder benefits “as defined 

under the terms of the plan and in accordance with applicable Federal and State law” and 

the regulations clarify that plan terms defining whether the benefits are mental health or 

substance use disorder benefits must be consistent with “generally recognized 

independent standards of current medical practice.” The ambiguity in the phrase 

“generally recognized independent standards of current medical practice” may permit 

plans to exclude coverage of conditions, services or providers that may not meet 

“medical” standards, but are commonly accepted conditions and treatment options within 

the behavioral health community. In addition, we are deeply concerned that the lack of 

specificity on this issue will lead to overwhelming confusion as plans develop different 

definitions and consumers struggle to determine whether their particular diagnosis, 

condition or requested service is covered under their plan. The burden on consumers to 

decipher coverage and compliance with parity laws will be tremendous if the regulations 

do not offer a more tailored/definitive approach to defining the diagnoses and conditions 

subject to parity. In addition, plans and insurers may narrowly define such services, thus 

making the goal of parity an illusion. 

III. Scope of Services

With respect to the “scope of services” or “continuum of care” issue identified in the 

preamble to the regulations, we support the idea that MHPAEA be interpreted (and 

clarified through the regulations) to require group health plans that offer mental health 

and substance use disorder benefits to provide benefits for any evidence-based treatment 

or treatment “which is reasonably calculated to prevent, diagnose, prevent the worsening 

of, alleviate, correct or cure conditions in the [insured] that endanger life, cause suffering 

or pain, cause physical deformity or malformation, threaten to cause or aggravate a 

handicap, or result in illness or infirmity”.1

 We appreciate that the Departments 

recognize, in the preamble, that not all treatments or treatment settings for mental health 

conditions or substance use disorders correspond to those for medical or surgical 

conditions and that MHPAEA prohibits plans and insurers from imposing more 

restrictive treatment limitations as to mental health and substance use disorder benefits 

than medical and surgical benefits. MHPAEA is best interpreted to require benefits for 

any evidence-based treatment or treatment in accordance with the above proposed 

definition of covered conditions. The stated purpose of MHPAEA, described in the 

House Report for the Committee on Ways and Means, issued on October 15, 2007, 

(regarding what was then known as H.R. 1424) was to establish “true parity” and to “end 

the discrimination that exists under many group health plans with respect to mental health 

and substance-related disorder benefits”. See section (I)(A) of the Report under the 

PURPOSE heading. Equity in treatment requirements cannot be met without 

acknowledgement that “treatment” in the mental health/substance use disorder arena 

encompasses a variety of practices and services.2 

 

1

 This definition of treatment is taken from the definition of medical necessity used by Massachusetts’ 

Medicaid program. 130 CMR §450.204. 

2

 We also submit that one frequent exclusion of health insurers relates to the provision of services for 

children with autism and encourage the Departments to make clear that such services are, in fact, covered 
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May 3, 2010 

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Because not all treatments or treatment settings for mental health conditions or substance 

use disorders correspond to those for medical or surgical conditions, parity will not exist 

if the comparison is that of medical or surgical treatments and settings. For example, in 

Massachusetts, our Parity Laws recognize a category of behavioral health services 

distinct from inpatient and outpatient – that of “intermediate care” settings. An example 

of an “intermediate care” setting is a partial hospitalization program, which is commonly 

used in both mental health and substance use disorder treatment. If the regulations do not 

make clear that services, such as partial hospitalization programs, which do not generally 

correspond to medical/surgical treatments or treatment settings, are required under 

MHPAEA, these important treatment methods and settings will potentially be excluded 

by plans because there is no equivalent setting in medical/surgical treatment. The 

MHPAEA goals of improved access to behavioral health treatment and the overturning of 

years of inequity in benefit coverage between behavioral health treatment and 

medical/surgical treatment will not be met unless it is clear that the standard for mental 

health and substance use disorder conditions is evidence-based treatment or treatment in 

accordance with the above proposed definition. MHPAEA represents a significant step 

forward in the achievement of parity in coverage for treatment for mental health and 

substance use disorder conditions, however, to not define the scope of services as 

proposed will result in continuing discrimination of group health plans in coverage for 

treatment of mental health and substance use disorder conditions. 

Thank you again for the opportunity to submit comments regarding these important 

issues. If you have any questions or concerns, please contact Megan Mahle at Health 

Law Advocates by phone at (617) 275-2984 or by email at mmahle@hla-inc.org. 

Sincerely, 

Frank Laski, Executive Director 

Mental Health Legal Advisors Committee 

Amy Whitcomb Slemmer, Executive Director 

Health Care For All 

Laurie A. Martinelli, Executive Director 

National Alliance on Mental Illness of Massachusetts 

Matt Selig, Executive Director 

Health Law Advocates 

Marylou Sudders, President and CEO 

Massachusetts Society for the Prevention of Cruelty to Children 

 by MHPAEA, which supports a broad inclusion of both mental health/substance use disorder conditions 

and diagnoses and the services and treatment designed to address such conditions. 
The Departments 

May 3, 2010 

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Joshua Greenberg, Director, Government Relations 

Children’s Hospital Boston