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TABOR © MANABEMENT © CONSULTANTS:

EMPLOYEE ASSISTANCE PROFESSIONALS ASSOCIATION, INC.
Sponsor of the CEAP Certification Program

April 30, 2010

Office of Health Plan Standards and Compliance Assistance
Employee Benefits Security Administration

Room N-5653

US Department of Labor

Attention: RIN 1210-AB30

200 Constitution Avenue NW

Washington DC 20210

Centers for Medicare and Medicaid Services
Department of Health and Human Services
Attention: CMS-4140-IFC

P.O. Box 8016

Baltimore MD 21244-1850

U.S. Department of the Treasury
Internal-Revenue Service

Attention: CC:PA:LPD:PR. (Reg-120692- 09)
Room 5205

P.O. Box 7604

Ben Franklin Station

Washington DC 20044.

To Whom It May Concern:

I write today in my role as President of the Employee Assistance Professionals
Association (EAPA). We are the largest and longest standing employee assistance
organization in the world, having been incorporated in 1972, and are proud to represent
more than 3300 professional members in the US and more than 30 other countries arcund
the world. I would like to take this opportunity to comment on behalf of our association
regarding the Interim Final Rules under the Paul Wellstone and Pete Domenici Mental
Health Parity and Addiction Act of 2008.

While EAPA has long supported parity for both mental health and substance abuse
treatment, we have concerns with the Interim Final Rules as they are currently written
concerning Employee Assistance Programs (EAPs). Our reading of the interim final
tules indicates that EAP’s are considered to be a group health plan and a mental
health/substance abuse benefit. We believe this characterization to be in error and ask that
it be clarified and corrected in the Final Rules.

§


EAPA - Interim Final Rules Response
Page 2

In 1981, EAPA first published professional standards that included a definition of an
employee assistance program and later added a description of EA Core Technology that
further outlines the field. Per this well-established definition, an EAP is “a set of
professional services specifically designed to improve and/or maintain the productivity
and healthy functioning of the workplace and to address a work organization’s particular
business needs through the application of specialized knowledge and expertise about
human behavior and mental health.” (EAPA Program Standards, 2009). More
specifically, an EAP is a workplace program designed to assist: (1) work organizations in
addressing productivity issues, and (2) "employee clients" in identifying and resolving
personal concerns, including health, marital, family, financial, alcohol, drug, legal,
emotional, stress, or other personal issues that may affect job performance. The EAP
Core Technology represents the essential components of the employee assistance (EA)
profession and reflects the performance and productivity focus that EAPs bring to
employers and the workforce. These components combine to create a unique approach to
addressing work-organization productivity issues and "employee client" personal
concerns affecting job performance. The EAP Core Technology is:

(1) Consultation with, training of, and assistance to work organization leadership
(managers, supervisors, and union officials) seeking to manage troubled
employees, enhance the work environment, and improve employee job
performance;

(2) Active promotion of the availability of EA services to employees, their family
members, and the work organization.

(3) Confidential and timely problem identification/assessment services for
employee clients with personal concerns that may affect job performance;

(4) Use of constructive confrontation, motivation, and short-term intervention
with employee clients to address problems that affect job performance;

(5) Referral of employee clients for diagnosis, treatment, and assistance, as well
as case monitoring and follow-up services;

(6) Assisting work organizations in establishing and maintaining effective
relations with treatment and other service providers, and in managing provider
contracts;

(7) Consultation to work organizations to encourage availability of and employee
access to health benefits covering medical and behavioral problems including, but
not limited to, alcoholism, drug abuse, and mental and emotional disorders; and
(8) Evaluation of the effects of EA services on work organizations and individual
job performance.

Based on this well-established and well-researched definition, employee assistance
programs do not constitute mental health/substance abuse treatment and should not be
considered a group health plan. EAPs remain one of the federally mandated requirements
for those organizations that must comply with the Drug Free Workplace. EAPs have a
breadth of responsibility and functions in the workplace that bring value to employers


EAPA - Interim Final Rules Response
Page 3

and employees far beyond their role in assessing and referring employees with mental
health issues and substance use disorders. Because of the EAP consultation role with
organization leadership, even organizations that offer more than one health plan choice to
employees have a single EAP, which provides services regardless of health plan
enrollment. To consider EAPs as group health plans under this Interim Final Rule does a
disservice to the many private and public employers who have benefited from their
EAP’s contributions to both labor and management in the enhancement of an employee’s
performance and productivity in the workplace.

In recognition that the EAP Core Technology reflects a broad spectrum of workplace-
based services, of which mental health and substance abuse assessment and referral are
simply one, the Department of Labor issued an opinion in 1991 that stated that EAPs
were not an employee welfare benefit plan. The IRS specifically addressed this issue
previously by stating “An employer offers a program that provides employees with ,
benefits under an EAP, regardless of enrollment in a health plan. The EAP is specifically
designed to assist the employer in improving productivity by helping employees identify
and resolve personal and work concerns that affect job performance and the work
environment. This EAP is not a “health plan” under section 223(c)(1) because it does not
provide significant benefits in the nature of medical care or treatment.” This view also
has been supported by the State of California, where the Knox-Keene law regulates
health plans and specifically excludes EAPs who offer traditionally defined EA services.
Texas and Ohio have made similar determinations.

The existing range of EA structures and functional differences warrant a thoughtful
delineation and review rather than rendering all EA structures akin to the provision of
health care. In order to continue to perform the vital role that EAPs play in today’s
workplace, the employee assistance program must be seen as a separate entity from the
group health plan in the Final Rules. We urge regulators to use the above referenced
definitions when making this distinction and to affirm that EAPs are not, in and of
themselves, health plans or mental health/substance abuse treatment as defined under the
tules. Given the range of offerings available from some EAPs, we would further suggest

. that EAPs who. opt to offer additional services to those we outlined are’ already addressed
in previous regulations such as ERISA and that oversight should continue. We are
prepared to provide additional supporting information should you require it.

Thank you for your consideration of our comments.

orster, ACSW, LICSW, CEAP
President - EAPA