Nelson 

Nelson Rluilins Riley & Scarboro~~gh LLP 

hnorncys and Cuunsclorv at Lafi 

Arlantlr Station 1 201 17th Sireel, NW i SUII~ lilW ; htlalira. Gii 30363 

Tcl: UU.322.6IM) Fax: J04.322.63(15 

Rekkal~ K. Plow~l~url 

Tel: 404.322.611 1 

Fax UW.322 0365 

rel>ek;lh ~I~O\VI~~~II~I~C~SOI~II~U~~IIIS, 20111 

April 30, 2010 

FILED VIA HASD-DELIVERY 

Officc of Health Plan Standards and Compliance Assistance 

Enlployee Benefits Security Administration 

Room N-5653 

Aftention: TIN 121 0-AB30 

U .S. llepartnlent of Lahnr 

200 Constitution Avenue NW 

Washington, DC 202 10 

Centers for hlcdicarc & Medicaid Services 

Department of Health and Human Services 

Hubert H. Humphrey Building, Room 445-G 

Atronrio~r: CMS-4140-IFC 

LOO Independence Avenue, SW 

Washirlgtoli: DC: 2020 1 

Internal Revenue Service 

Courier's Desk 

CC:PA :LPD: PR (REG- 1 20692-09) 

11 11 Constitution Avenue, NW, 

Wahingtnn, DC 20224 

KE: Comments 011 Interim Final Rules Under the Paul Wells~one and Pete 

Domenici Mental Health Parity and Addiction Equity Act of 2008 

Publisiad at 75 Fuct. Rcg . 341 0 (February 2, 20 10) 

Dcpt. of I;abor ERSA File Nn.: Artention RIN 1210-AB30 

Dept. Health & Human Servs. CMS bile No.: UMS-4140-[FC 

Depr. of Treasury . . 1KS Pile No.: CC: PA: LPD: PR (REG- 120692-09) - - - - - - - - - -- - - - -. - - 

Dear Sirs and Madam: 

Nelson Mullins Riley & Scarbornugh. LLP It'Nelson Mullins") is writing un behalf of 

its Substance Use Disvrder Healthcacc Providar cliel~ts to submit conment s to the Interim 

Final Rules published in Volume 75 of the Federal Register at page 5410 on February 2, 2010, 

Wiih IWPII.~ ofl~ lacations In rtrr Ul.rt,r tl :if Ci~iumbiu. k'luridii. Geurgitr. MUAHII irrr rt'1r.r. Ylrrh Cur olitm, Sortth C~nrolirlr~, nnd WPFI Iii~girlio 
Comments to MHPAEA lnterim Final Rule 

April 30, 20 10 

Page 2 

under the Paul Wellslone arid Pete Donlenici Mcr~tal Hcalth Parity and Addictivrl Equity Act of 

2008 (('MHPAEA"). Nelson Mullins appreciates the actions taker] by the Department in the 

Interim Final Rules and hrthcr apprcciatcs thc opportunity to providc cornmcnts to the 

Departments on those issues upon whicl~ the Department has requested comments and to share 

its clients' first-hand knowledge and experjence with ways in ivhich plans have historically 

applied and currently apply both financial requirements and treatment l irnitarions under 

substance use disorder benefits in manners not un par with medical and surgical benefits. 

Comments to lnterim Final Rules for lmplemeatatiou of MHPAEA 

In the 1rlteri111 Final Rulcs issucd by thc Dcyart~~~c~lt of thc Treasury, Dcpartmcnt of 

Labor and Departnletlt of Health and Human Services (the Departments) on lam~ary 29, 2010 

and published in the Federal Register on February 2, 2011) (the regulations). the Departments 

invited comments on whether and to what extent MHPAEA addresses the scope of services or 

continuum of care provjdtd by a group health plan or hralth imurance coverage. 75 Fed. Reg. 

5416 - 5417. 

The Departments also invited comments on additional examples that may be helpful to 

illustrate the application nf the nonquantitlitive treatment limitation rule to other features of 

medical management or general plan design. 75 Fed. Reg. 5416. [n addition, during the 

Departments' January 29, 20 10 telepho~iic cot~stituency group btieting on the regulations. the 

issue of state law preemption was also presented and is commented on herein. 

Comment 1: Continuum of -- CnrclSco~ - of . . Services . . - -. - 

A. Treatment SettinglFacility Type Exclusions Constitute Impermissible Limitation on 

Scope of Services and lnlperruissible NQTL 

1. Statutory and Regulatory Background 

ERISA 57 12(a) [29 USC 1185aI (3)(A)(ii) and (B)(ii) and (iii) were added to require 

that in ~llr casc of a group l~ealth plan (or health insurance coverage offcrcd in connection with 

such a plan) that provides both medical and surgical benefits and mental health or substance 

use disorder benefits, the treatment limitations applicable to mental health or substance use 

Jisurdcr benefits are no trlore restrictive than the predominant treatrrlent limitations applied to 

subsrrudially all medical and surgical benefits covered by the plan, and that there are no 

scpnmie trcul/ncJnt linzitclriuns thut are ~rppliwble only with respecnt tu met~tal health or 

si~bsit7nre use iieisord~r b~n~fits. A treatment limitation is considered to be predominant if it is 

the most common or frequent of such type of limit. "The term 'treatment limitation' includes 

limits on rhc frcqueuicy of treatmellt, number of visits, days of coverage. or other ~irnihr limits 

on the st-ope or durariorz of treatment. " (Emphasis supplied.) 
Comments to MHPAEA lnterim Final Rule 

April 30, 2010 

Page 3 

The preamble to the Interim Final Rules, (herein referred to as the "regulations") 

states: "The Departments rewgnize that not all treatments ur tre~rlnrenl sellings for menlal 

health conditions or substance use disorders corresporld to those for mcdicallsurgical bc~~ciits. 

The Departments also recognize that MHPAEA prohibits plans and issuers from imposing 

trcatnlcnt limitations on mental health and substance use disorder benefits that are more 

restrictive than those applied to medical/surgical benefits. " 75 Fed. Reg. 54 16. (Emphasis 

supplied). 

2. Recommendation 

The Departments' Final Rules should require that group health plans recognize and 

include as covered healthcare providers under the MHISLTD benefit, appropriately state 

licensed nndlor nationally accredited non-hospital facilities, such as freestanding 

psychiatric and substance abuse treatment facilities and freestanding residential treatment 

centers, which arc uniqucly appropriate to provide treatment services under the MHISIJD 

benefit. 

3. Rationale u . . 

With the evolution of MHlSUD trcatmcnt, standard clinical treatment nlodalities and 

treatment settings have changed dramatically from early days. As noted in a 2009 Health 

Affairs issue, the former President of ClGNA Health Solutions stated that a major challenge 

for health plans in implementing mental health parity and addiction equity is the elimination of 

"any vestiges of structural differences between coverage of MEIISUD treatment benefits and 

benefits for general medical care. " ' Decades ago, those sul'l'ering from MHISUD's were 

placed in psychiatric wards of hospitals, often in lock-down, or in detoxification beds in 

hospitals. Much has changed regarding the medical community's clinical understanding of such 

disorders, and along with knowledge, treatment settings and programs have changed as well. 

According to SAMIISA 2007 Nalional Survey of Substance Abuse Treatment Scrvices (NSSATS) , as of 2007, 13,648 substance abuse treatment facilities provided medication, 

counseling, behavioral therapy, case management, and other types of services to persons with 

substance use disorders .2 (See Composite Exhibit A, National Survey excerpts with Tables 

2.3 and 3.2).3 Of these 13,648 facilities, 4,716 provided inpatient services. Of the 4,716 

facilities providing inpatien1 services, 3,7 16 or 79 St were residential nun-hospitals, and merely 

' Keith Dixon, "lmpleme~~ting Mental Health Parity: The Challenge For Health Plans", Health Affairs, 

21((3):663(May-Jun ZUOY). 

SAMHSA 2007 Nalional Survcy (~TSubs~arlcc Abusu Trealmeri( Services (N-SSATS), available at: 

h(lp.rln ww.o~s.samhsa.~ovhssats2k7:NSSATS2k7Hi.l~t11~. See also, Na~ional lustitute oil Drug Abuse, Principles of 

Drug Addiction Treatment: A Research Based Guide, Second Edition (2009) available at: 

httu:i~www.dru~abuse.~ov!P~DA'ITl're~mentU S.htm1. 

Salient portions of the Lxhibits attached hereto are highlighted for eaw of reference. 
Conmlents to MHPtIEA Interim Final Rule 

April 30, 2010 

Page 4 

1,000 or 2 1 5% were hospital-based treatnlcnt providers. "See Comp. Ex. A). 'l'he National 

Survey shows that during 2007, 1 1 8,5 12 individuals obtained inpatient substance abuse 

treatment. Of these 118,5 12 individuals, 103,709 or 87.5 % received inpatient treatment in a 

residential, non-hospital facility, and merely 14,803 or 12.5 $ received inpatient treatment in a 

hospital setting. (See Comp. Ex. A). 

Each state has its own substance abuse licensing agcncy, with a cudificd regulatory 

licerlsure schcrnc to cllsure clinical quality standards of treatment facilities and the levels of 

care and scrvices they are licensed to pr~vide.~ In addition, just as with hospitals on the 

medical/surgical side, MHISUD freestanding treatment facilities may also he Joint Commission 

accredited to demonstrate compliance with national accreditation standards. Such htate licensed 

freestanding treatment facilities, rather than gentral hospitals, are Lhe Fdr mort: ty pica1 and 

u~uiluble inpatient treatment sctting for thc prcrvisio~l of MHlSU D trcatrnelir scrviccs . These 

frccstandi~lg treatment facilities are specifically licensed to provide the appropriate levels of 

care along the continuum of care for MHISIJD treatment, including medical detoxification, 

intensive inpatient rehabilitation, residential trratmtnt, partial hospitalization and intensive 

outpatient cat.. Thus, freestnnditzg substunce ubrisr fre~ltt!~efif .bc>ilifies !ha[ are properly 

licensed jor ear!) level of rare they y rovid~ nrp rhc equi uzlenr ofprc3y~ri~ I~CPPISP~ l~nspitnls on 

the mdical/si~rgicnl side. 

The 20 10 Government Employees IIealth Assuciation, Inc. (CEIIA) Benetit Plan under 

the Federal Ernpluyees 1Iealt.h Benefits (FEHB) Program is highly instructive on this point. [n 

cvmpliance with MHPAEA, the 2010 GEHA FEHB Plan made changes to its benefit plan 

design. specifically providing that: "Admissions to out-of-network Residential Treatmenr 

Cclltcrs arc now covered subject to medical necessity review." (See Exhibit B, 2010 GEHA 

FEHB Plan page excerpts, p. 9, Section 2). Thus, the Mental Health and Substance Abuse 

benefits setting description provides "Inpatient hospital and inpatient residential treatment 

centers" as being covered. (See Ex. B., p. 58). This is corlsistent with the added provision 

that : "Liccnscd Professional Counselors.. .are now covered providers when services are 

performed within the scope of their license." (See Ex. R, p. 9). With respect to more 

intensive inpatient levels of care, the 2010 GEHA FEHB plan also defines Hospital to ilaclude 

duly licensed freestanding substance abuse facilities Lhat meet clinical slaffing and cliriical 

ser~ ices requisitcs." (Scc Ex. B, p. 12). 

Fr~ll set of Tahlcs 10 SAMHSA 2007 Na~iolial Survcy of Substatlce Abuse Treatment Services (N-SSATS), 

available at: I~ttu:,~J'ww~v.ons.saml~sa.go~/~~~~;1t~2k7!NSSATS2k7Tbl2.3 .htm. 

See SAMHS,\'s Directat). ot State Substance Abuse Agencies, available at: 

http:iltindtrzatmtnt'smhsa.~o~ ~ufds!abusedirectors. 

Lx. t3. (<F,I IA FEl IR 2O I0 Plan ;it Section 3, p. 12, dulinitiori oC"Hospila1" includes: "(3) An institution wbich is 

opurtl~cd pursuant to law, undel. the supervision of a staff of doctors and with 24 hours a day nursing service and 

wbich provides services on the premises far the diagnosis, treatment, and care of persons with mental!su bstance 

abuse disorders and has for each patient a written treatment plan which must include diayostic asscssmunt of lhu 

patient and a description of the treatment to he rendered and prt~vidcu Tor folluw-up asscssmurlls by or urider the 

direction of the supervising doctor." 
Comments to MIIPAEA Inter it11 Final Kulc 

April 30, 2010 

Page 5 

Historical inequities in benefit design include, most markedly, the exclusion of 

freestanding adult and adolescent substance abuse treatment facilities, freestanding residential 

treatment facilities and freestanding adulesceni psychiatric treatment facililirs from cvverage 

under a plan's MHlSUD b~nefil.~ Many plans continue 10 restrict MHiSUD benefils to 

services rendered only by hospitals or tacilitics affiliated with hospitals. As a rcsuIt, many 

group health plans do not include appropriately licensed and accredited fieesrai~ding treatment 

facilities in their definition of "hospital" or " qealifieil treatment facility. " Other plans 

expressly exclude freestanding psychiatric and substance abuse treatment facilities andlor 

freestanding residential facilities from the scope of coverage, notw ithstlinding appropriate state 

licensure andlor national accreditation. For exanple, one ol' the largest national employer 

group plans containing both inpatient and outpatient med jcallsurgical and MHIS U L) benefits, 

effective January 1, 2010 provides: "Treatment received at a freestanding residential substance 

abuse treatment center or at a freestanding psychiarric residential treatment facility is not a 

covered benefit." (See Exhibit C, 2010 large employer group health benefits plan, excerpts 

p.p. 93-94). This inequity in health plan benefit design deprives participants and beneficiaries 

of the ability to access covered treatment from the very healthcare providers that specialize in 

and are specifically licensed to rcndcr rhosc scrviccs that rrlcrllbcr requiros . 

Not only does the exclusion nf properly licensed facilities from the scope of coverage 

under the MHlST JD benefit constitute a treatment limitation applicable to MHiSI JD henefi ts 

that is more restrictive than lhe predominant treatment limitations applied to substantially all 

medicalillsurgical beneiits covered by the plan, as wcll as a separate treatmnent lirrlitatiori 

applicabIc orfly with respect to MHISUD benefits, it also constitutes a preauthorization 

determination based on the s~tiitzg in which the care is provided, rather than whether or not the 

service is medically necessary. Parity cannot be achieved if the implementing regulations do 

not prvhibit this ljpe of treatment limitation on the scope oC services. Without closing this 

sigrlifica~~t loopllole in plan benefit design, plan participants are lefr with a tremendous obstacle 

in accessing their MHISUD benefits. 

B. - Lcvcl - of - - Care . . - Exclusions under the MHlSTTD Benefit are Impermissible under 

hlHPAEA and . the . .- Regulations. 

1. Statutory and Regulatory Background 

ERISA 47 12(a) [29 USC 1185a1 (3)(A)(ii) and (B)(ii) and (iii) were added to require 

thal in rhc case or a group health plan (or health insurance coverage offered in com1cction with 

such a plan) thar provides both medical and surgical benefits and mental health or substance 

use disorder bcnc fits, thc treat~nent limitations applicable to n~er~tal health or substance use 

disorder henefi ts are no nlnre restrictive than the predominant treatment limitations applied to 

substslntially all medical and surgical bcncfits covcrcd by thc plan, and that there are no 

' SAMHSA's Nulional Expc.r\ditures for Mental Health Services and Substallce Abuse Treatment published in 

2007shed light on the lack of access to these treatment settings. 
Comnents to MHPAEA [nterim Final Rule 

April 30, 2010 

Page 6 

sepnrcrfe trentrmnt limimtions that are applicable ortly wit11 respect to rne~ztar! health or 

substanre use disorder heneflts. A treatment limitation is considered tn he predominant if it is 

the most common or frequent of such type of limit. ;'The term 'treatment limitation' includes 

limits on the frequency of treatmenl, number of visits, days uf coverage, or uther simiiur lillrits 

on the scope UP' duratioa aJ' treatrrtent. " ( Ernphas is supplied. ) 

The preamble to the regulations provides: "These regulations specify, in paragraph 

(c)(2)(ii), six classifications of benefits: Inpatient, in-network; inpatient, out-of-network; 

outpatient in-network; outpatient out-of-network; emergency care; and prescription 

drugs.. . .These regulations provide that the parity rey uirernenls for financial requirements and 

treatment limitations are generally applied on a c1assiiicatior1-by-classification basis and these 

are the only classifications used for purposes of satisfying the parity requirements of the Act. " 

75 Fed. Reg. 54 13. The preamble also states that: "The Departments recognize that not all 

treatments or treatment settings for mental health conditions or substance use disorders 

corrrspond to hose for medical/surgical benefils. The Dqxartments also recognize that 

MHPAEA prohibits plans a11d issuers from imposing treatnlcnt limitations on mental health and 

substance use disorder benefits that are more restrictive than those applied to rnedicallsurgical 

benefits." 75 Fed. Reg. 5416. 

2. (a) Recommendation 

The Departments' Final Rules should specify that group health plans are required to 

cover under the MHISUD benefit, all levels and types of medicalisurgical care covered for 

substantially all medicallsurgical benefits ji. e., continuum of care) that are largely 

analagous under the MHISUD benefit. Thus, excIusions of levels of care or services along 

the continuum of care, such as inpatient rehabilitation nndlar residential trcatmcnt 

andlor partial hospitalization and/or intensive outpatient services, undcr the MHlSUD 

benefit, where there are no such exclusions of analogous lcvcls of care along the 

continuum of care under the medicallsurgical benefit, should constitute a violation of 

MHPAEA's "no more restrictive" standard and "separate treatment limitation" 

prohibition. Group health plans should be required to cover a scope of services and 

continuum of care under the MHISLTD benefit that is largely comparable to the scope of 

services and continuum of care provided for substantially dl of the medicallsurgical 

benefits under that group plan. 

Plans should riot be permitted to either: 1) create a new classification of benefits in 

order for those hcncfits to fall outside the ambit of MHPAEA; or 2) to cxclude clinically 

recognized licensed levels of care from the MHlSUD benefit based on the plan's 

determination that such Ievel of care does not fall within one of the six classifications; or 

3) nut cover a level of care under the MHlSUD benefit using the justification that there is 

no directly correspondi~~g medical/surgical benefit. If a plan is offering only one or two 

types of service or levels of care in each MHlSUD classification, while offering many within 
Comments to MHPAEA Interim Final Rule 

April 30, 2010 

Page 7 

each medicallsurgical classification, the plan is applying a treatment limitation to the MIIISUD 

benefit that is more reslrictive than the predominant treatment lirriitation applied to 

substantially all rnedicallsurgical benefits in the same classification. 'I'he plan is also applying 

separate trcat~ncnt limitations applicable only to the MHlSUD benefit. In these cases, the plan 

has violated the requirements of both MHPAEA (also referred to herein as "the Act") and the 

regulations. 

3. (a) Rationale 

As the Dcpartmc~lts have recognized, not all treatment scrviccs and settings for 

MHlSUD bcneiits will correspond to those for medicallsurgical benefits. Mcntal health and 

substance use disorders are often complex and chronic, featuring medical, psychological, 

behavioral and social dimensions, rather than strictly medical. The Departments have also 

recognized that the plain language of MEIPAEA prohibits tredtment limitations under MHISI JD 

benefits that are more restrictive than the predominant treatment limitations applied to 

substantially all medicallsurgical benefits. In addition, the regulations require that when a pla11 

"provides [MHISUD] benefits in any classification of benefits" described in the rule, 

MHISIJD benefits "must he provided in every classification in which medical/surg ical benefits 

are provided." 75 Fed. Reg. 5413. While this statement clearly requires parity across 

classifications in the scope of serviccs that arc offcrcd for particular conditions, the Act and the 

regulations taken as a whole, clearly require parity within classifications as well. 

There have been historical group health plan exclusions of certain levels of care under 

the MBlSUD benefit design. Since the effective date of MIIPAEA, many group health plans 

continue to exclude from coverage entirc lcvcls of carc that are clinically recognized and slate 

licensed, while covering what is viewed by many state licensing boards as analogous cli~~ically 

rccognizcd lcvcls of care under the rnedical/surgical benetit (See Composite Exhibit 11, 

exemplar Medical Insurance Verification form (insurance benefits quote), with corresponding 

2010 benefit plan excerpts). Because both the Act and the regulations make clear that the six 

classifications of benefits are the only classifications to be used, and also make clear that 

MIIPAEA prohibits treatment lirnitations urldcr the MHlSUD benel'it that are more restrictive 

than under the medicallsurgical benefit, it rlecessarily Collows that all MH/SUD and 

medical/surgical services and levels of care must fd into one of these six chssificutions. 

Moving certairl services or levels of care outside the six classes to evade the requireme~~ts of 

parity would be a clear violation of Congressional intent. 

To illustrate the hu~zmn consequences of how this discrinlinatory plan design is affecting 

today's behavioral health marketplace. a member obtaining SUD treatment may typically be 

admitted to detoxiiication level of care, followed by intensive inpatient rehabilitation and 

monitoring, followed by residential treatment, followed by day treatment/partial 

hospitalizatiun, followed by i~ltcnsivc outpatient treatment, followed by outpatient counseling 

or group therapy. As SAMHSA's 2007 National Survey reveals, of the 103,709 individuals 

who received treatment in a residerltial, nun-hospital setting, 96,173 or 92.7 % received either