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 Creative Health Benefits Solutions for Today, Strong Policy for Tomorrow

May 3, 2010 

Employee Benefits Security Administration 

United States Department of Labor 

200 Constitution Avenue NW, Room N-5653 

Washington, D.C. 20210 

Re: 29 CFR Part 2590 

 RIN 1210-AB30 

The National Business Group on Health appreciates the opportunity to submit comments 

on the interim final rules implementing the Paul Wellstone and Pete Domenici Mental 

Health Parity and Addiction Equity Act of 2008 (MHPAEA). Mental health and 

substance use disorder benefits serve an important role in employer-sponsored plans. 

In order to maintain access to effective, affordable employer-sponsored mental health and 

substance abuse disorder (MH/SUD) benefits, we urge the Department to: 

• Reconsider the regulations regarding non-quantitative treatment limitations. The 

statutory language of MHPAEA preserves the rights of plans to use medical 

management tools which are essential to quality, affordable coverage and we 

believe that the regulations on non-quantitative treatment limits go beyond the 

scope of the law. 

• Clarify that Employee Assistance Programs, which provide critical support to 

employees in many areas including mental health but also work/life balance, 

financial, legal, and other instances, can continue to provide mental health and/or 

substance use disorder benefits as long as they are not used as “gatekeepers”, but 

provide benefits beyond other mental health and/or substance use disorder 

benefits group health plans provide at parity with medical/surgical benefits. 

• Issue a proposed rule under the Administrative Procedures Act. Given the 

complexity of implementing both the MHPAEA and the Patient Protection and 

Affordable Care Act of 2010 (PPACA), prompt guidance is important, but 

arguably the opportunity for all parties to comment is more important. If that step 

is not an option, then we urge you to push back the effective date until July 1, 

2011. 

• Reconsider the “substantially all” and “predominant” tests to determine parity 

across classifications of benefits. These tests may lead to increased costs and less 

access if plans increase medical/surgical cost sharing to match mental health and 

substance abuse because of their inflexibility. 

The National Business Group on Health represents about 300 large employers providing 

health coverage to more than 55 million U.S. employees, retirees, and their families. It is 

the nation’s only non-profit organization devoted exclusively to finding innovative and 

forward-thinking solutions to large employers’ most important health care and related 
Employee Benefits Security Administration 

Page 2 

May 3, 2010 

benefits issues. Business Group members are primarily Fortune 500 and large public 

sector employers, with 63 members among the Fortune 100. 

FR 5416 Non-Quantitative Treatment Limitations

We recommend the agencies reconsider promulgating regulations for non-quantitative 

treatment limitations. Medical case management is vital to achieving higher quality 

medical outcomes and preserving affordable coverage. The language of the MHPAEA 

recognized its importance by maintaining plans’ flexibility to use medical management 

tools for MH/SUD services. Moreover, medical management techniques do not translate 

well from medical/surgical practices to mental health and substance use disorder 

treatment. 

If the agencies persist in regulating non-quantitative treatment limitations, we 

recommend that future regulations provide additional examples to illustrate the 

application of non-quantitative treatment limitations to various medical case management 

tools. We also recommend that the regulations recognize clinically appropriate 

differences between the medical case management of mental health and/or substance use 

disorder benefits and that of medical/surgical benefits. 

We recommend that the Agency fully address in the additional regulations how clinically 

appropriate standards of care can permit differences in both quantitative and nonquantitative treatment limitations between medical/surgical benefits and mental health 

and/or substance use disorder benefits while still complying with the statutory 

requirements of the MHPAEA. 

We would further recommend that the Agency expand on the requirement that nonquantitative treatment limitations must be generally applied to mental health and/or 

substance use disorder benefits in a comparable manner as such limitations are applied to 

medical/surgical benefits. 

We encourage the Agency to formulate the regulations with a comprehensive recognition 

that “the relevant medical community” for mental health and/or substance abuse 

disorders varies significantly in both best-practices treatment and the appropriate 

application of medical case management from that of health care providers addressing 

medical/surgical conditions. 

We recommend that the Agency fully account for the fact that the processes, strategies, 

evidentiary standards, and other factors used in applying non-quantitative treatment 

limitations to ensure parity can be vastly different for mental health and/or substance use 

disorder benefits than for benefits provided for medical/surgical conditions. 
Employee Benefits Security Administration 

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May 3, 2010 

The Departments must give careful consideration to the differences between medical case 

management of mental health and/or substance use disorders, and that of medical/surgical 

conditions, to recognize when such differences are medically appropriate but do not 

actually limit the scope or duration of benefits. We very much look forward to the 

opportunity to comment on the additional regulations as you address these “scope of 

services” issues in the future regulations. 

Employee Assistance Programs

Consistent with discussions at the Technical Assistance Briefing on February 19, 2010, 

we recommend further clarification that Employee Assistance Programs can continue to 

provide assessment, referral, and brief counseling for mental health and/or substance use 

disorder benefits when such programs do not serve as “gatekeepers” but simply provide 

optional benefits in addition to those mental health and/or substance use disorder benefits 

that plans provide. 

Employee Assistance Programs provide many resources for plan participants facing 

family, work and financial issues, and mental health and/or substance use disorder 

benefits represent just one aspect of their many valuable services. Additional 

clarification will ensure they can continue to serve, optionally at employees’ choosing, as 

the first contact for plan participants with mental health and/or substance use disorder 

conditions. 

Postpone Compliance Dates

We recommend the agencies consider postponing the requirements for a longer period for 

plan years beginning on or after July 1, 2011. Implementing changes in group health 

plans to meet regulatory compliance requirements is procedurally complex and requires a 

great deal of time. Employers face unprecedented demands to comply with MHPAEA 

and PPACA, two major laws simultaneously affecting plan benefits and plan design, and 

we urge you to allow them additional time. 

Financial Requirements and Quantitative Treatment Limitations

We recommend reconsideration of the “substantially all” and “predominant” tests to 

determine parity between medical surgical and MH/SUD benefits. In some 

circumstances, demonstrating “parity” simply by making financial requirements and 

quantitative treatment limitations the same, can be counter productive to encouraging 

desired behavioral changes (e.g.; participation in wellness activities, etc.). Cost sharing 

not only encourages better utilization but also encourages desired behaviors. If the goal 

is to have the same cost-sharing, the practical effect may be to increase cost-sharing on 

the medical / surgical side to a level that achieves parity with MH/SUD. 
Employee Benefits Security Administration 

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May 3, 2010 

Thank you, again, for the opportunity to provide comments in response to the interim 

final rules. 

Please do not hesitate to contact me or Steve Wojcik, Vice President of Public Policy, at 

202.585.1812 if you have questions or would like to discuss this feedback in further 

detail. 

Sincerely, 

Helen Darling 

President