From: Becky Kay [mailto:dragonfli2@bellsouth.net] 

Sent: Saturday, May 23, 2009 3:37 PM 

To: EBSA, E-OHPSCA - EBSA 

Subject:

May 23, 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 Greenville, SC County (MHA-SC) 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 

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 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; 

• 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: 

• 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 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:

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-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 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 benefits.”[4]

Grace and peace,

Becky

 

"Never worry about numbers. Help one person at a time, and always start with the person 

nearest you..."