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May 27, 200 

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 Kentucky (MHA-KY) 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." 

120 Sears Ave. STE 213 ~ Louisville, Kentucky 40207 ~ 502.893.0460 ~ www.mhaky.org 
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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 
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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 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: 
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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. 
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5. Out-of-Network Coverage: To gather more information on the scope of out-ofnetwork 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-ofnetwork 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]
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Sincerely, 

Sheriall Cunningham 

Executive Director, MHAKY 

References: 

[1] H.R. REP. NO. 110-374, pt. 1 (2007) (Educ. & Labor Comm). 

[2] Cunningham, P.J., Beyond Parity: Primary Care Physicians’ Perspectives on Access to 

Mental Health Care, Health Affairs, April 2009. 

[3] Cite Sara Rosenbaum report on “Medical Necessity in Private Health Plans” 

[4] H.R. REP. NO. 110-374, pt. 2, Ways and Means Comm., 2007.