e 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

e 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. What information, if any, regarding the reasons for any denial under the plan
(or coverage) 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?

Individuals should be provided with more information than is now typically
received when a service is denied to them based upon medical necessity. A plain
language explanation of why this particular service was not considered
appropriate at this time for this person should be required. 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. 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.

7. Other issues?

An 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. This result would be
inconsistent with the intent of the MHPAEA to ensure equity between mental
health/substance use benefits and medical/surgical benefits.


e 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.

e Application of the MHPAEA to Medicaid managed care plans—Since the
1996 parity law applied to Medicaid managed care plans, the regulations
should make clear that the new parity law applies to these plans as well.

e 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.

e 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._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:

e customary standards of practice—whether the treatment accords with
professional standards of practice;

e evidence-based practices—whether there is sufficient evidence to
demonstrate effectiveness;

e medical services—whether the treatment is considered medical as
opposed to social or custodial; and

e costs—whether the treatment is considered cost-effective by the insurer.

The following additional clarifications would make these criteria better:

e Evidence from national experts should be considered if peer-reviewed
literature is not available;

e Services must be available to maintain or restore function and to prevent
or ameliorate medical conditions in addition to treating injuries or illnesses;
and

e Cost effectiveness does not necessarily mean lowest cost.

The regulations should require plans to do the following:

e Set timeframes for disclosure of medical necessity criteria;
e Detail appeal and enforcement mechanisms;


We appreciate the opportunity to provide these comments.

_

Respectfull

ae S
a a

Staff Attorney Supervisor


100 Fair Oaks Lane, Third Floor Telephone: (502) 564-2967 TTY: (800) 372-2988
Frankfort, Kentucky 40601 Toll Free: (800) 372-2988 Fax: (502) 564-0848

May 28, 2009

The U.S. Department of Health and Human Services
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-4137-NC

P.O. Box 8017

Baltimore, MD 21244-8010

RE: Request for information- MHPAEA
To Whom it May Concern:

Kentucky Protection and Advocacy (P&A) is an independent state agency that
advocates for the rights of individuals with disabilities in the state of Kentucky.
We submit these comments in response 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 care.

Kentucky P&A's response to the Request for Information follows:

A. Comments Regarding Economic Analysis, Paperwork Reduction Act and
Regulatory Flexibility Act

2. Are there unique costs and benefits for small entities subject to MHPAEA (that
is, employers with greater than 50 employees that maintain plans with fewer than
100 participants)? What_special_ consideration, if any, is needed for these
employers or plans? What costs and benefits have issuers and small employers
experienced in implementing parity under State insurance laws or otherwise?

Currently, there is no provision in the new law that allows for special
considerations for small entities. Kentucky P&A believes that the law should not

P&Ais a federally mandated program that receives funding from the U.S, Department of Health and Human Services,
the U.S. Department of Education and the Social Security Administration.


permit such special considerations, and that small entities that are subject to
MHPAEA should be required to comply in the same manner as other plans
subject to MHPAEA.

3. Are there additional paperwork burdens related to MHPAEA compared to
those related to MHPA 1996, and, if so, what estimated hours and costs are

associated with those additional burdens?

While acknowledging the potential for MHPAEA to create additional paperwork
burdens, no consideration should be given to any additional burden associated
with the costs of making a request to the federal government for exclusion from
the parity requirements.

B. Comments Regarding Regulatory Guidance

1. Do plans currently impose other types of financial requirements or treatment
limitations on benefits? How do plans currently apply financial requirements or
treatment limitations to (1) medical and 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?

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 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:

e Prior authorization requirements that are applied more frequently and with
higher standards for approval;

e More restrictive medical necessity and appropriateness criteria,

e "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;

e 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;


e Limitations on covering specific types of providers;

e More restrictive provider licensure requirements;

e More limited preferred provider networks or phantom networks with invalid
phone numbers and names of providers no longer practicing or accepting
new patients;

e Requirements to prove current threat of harm to self or others as the
justification for inpatient care; and

e 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.

Regulations implementing the MHPAEA must also 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. 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.

Lastly, there has been debate in the field regarding whether or not there should
be a single deductible that includes both physical health care services and
mental health care services, or “separate but equal’ deductibles for these
services. Given that the primary goals of parity legislation are to prohibit
discriminatory insurance practices and affirm that mental health and substance
use disorder treatments are integral components of comprehensive health care,
creating discrete but equal deductibles undermines these goals by suggesting
that it is necessary to treat physical and mental health services differently.
Kentucky P&A strongly suggests that one single, inclusive deductible for physical
health care and mental health services is necessary to avoid further
discrimination.

2. 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 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.