Jeri G. Kubicki 

Vice President

Human Resources Policy

May 28, 2009 

Manufacturing Makes America Strong

1331 Pennsylvania Avenue, NW y Washington, DC 20004-1790 y (202) 637-3127 y Fax (202) 637-3182 y jkubicki@nam.org y www.nam.org

Submitted Via E-mail: E-OHPSCA.EBSA@dol.gov

Re: Request for Information (RFI) Regarding the Paul Wellstone and Pete Domenici Mental 

Health Parity and Addiction Equity Act of 2008 (Pub. Law 110-343, “MHPAEA”) published in the 

Federal Register on April 28, 2009 (74 Fed. Reg. 19155) 

Dear Sir or Madame: 

The National Association of Manufacturers (NAM), the nation’s largest industrial trade association 

representing small and large manufacturers in every industrial sector, submits the following comments in 

response to the above-referenced Request for Information (RFI). 

Ninety-seven percent of NAM members voluntarily provide employer-sponsored health coverage to their 

employees, with many members also offering mental health and substance use disorder coverage. The 

NAM supports making the parity requirement work. However, it is critical that the regulations do not 

stray from the intent of the law, and the very precise and meaningful language adopted by Congress. 

There are several important areas where we seek clarification and guidance on the implementation of the 

Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (Pub. Law 

110-343, “MHPAEA”), which we detail below. 

1. The NAM firmly believes that group health plans (or health insurance coverage offered in connection 

with such a plan) are permitted under the law to offer separate but equal deductibles and out-of-pocket 

maximums. This approach is clearly intended by the language of the MHPAEA and may be more 

appropriate for some patients. 

The law states the financial requirements (or treatment limitations) “applicable to such mental health or 

substance use disorder benefits are no more restrictive than the predominant financial requirements 

applied to substantially all medical and surgical benefits covered by the plan (or coverage), and there are 

no separate cost sharing requirements that are applicable only with respect to mental health or substance 

use disorder benefits”. This language prohibits a financial requirement or a treatment limitation that is 

applied only to mental health or substance use disorders and not to medical and surgical benefits. 

However, it allows a requirement or limit on mental health or substance use disorders that is no more 

restrictive than that applied to medical and surgical benefits. 

2. The NAM also believes the comparison in the parity requirement should be made to similar levels of 

care. Determinations of financial requirements or treatment limitations should be made on an inpatient to 

inpatient comparison and on an outpatient to outpatient comparison. This methodology should exist for 

both in-network and out-of-network coverage. For example, out-of-network outpatient mental health or 

substance use disorder financial requirements or treatment limits would be compared to out-of-network 
outpatient medical and surgical financial requirements or treatment limits, and in-network inpatient 

mental health or substance use disorder financial requirements or treatment limits would be compared to 

in-network inpatient medical surgical financial requirements or treatment limits. 

3. The MHPAEA clearly indicates that group health plans and group health insurers may determine what 

conditions, treatments, services, or settings of care are covered under the terms and conditions of the plan 

or insurance policy. Group health plans and group health insurers have the ability to determine whether 

or not they provide coverage for mental health or substance use disorders. Any proposed guidance should 

clarify that the MHPAEA requirements do not impose any obligation on a group health plan or group 

health insurer to cover any specific mental health conditions or substance use disorders, services or 

treatments, or settings of care. 

4. The law states “as defined under the terms of the plan”, assuring that the law did not place any 

restrictions on the management of the benefit. Management of benefits is critical to an employer’s ability 

to ensure high-quality, cost-effective care. It has always been our understanding that the parity 

requirements apply only to financial requirements, treatment limitations and out-of-network services, and 

specifically does not change existing practices as it relates to the management of the benefit. 

5. With an effective date for most group health plans and group health insurers beginning with plan years 

on or after October 3, 2009, many NAM members have or are in the process of negotiating their health 

benefits for the January 2010 plan year. The on-going negotiations between employers and health 

insurance plans and the time needed to obtain state regulatory approvals for insurance policy changes 

creates a number of challenges for employers to reopen negotiations after an interim final rule is issued. 

There may be cases where employers and health insurance plans have already established contracts for 

health benefits for plan years beginning after October 3, 2008. If the group health plan or group health 

insurer has acted in good faith to comply with the MHPAEA, we request that financial penalties not be 

immediately imposed on the plan and that the plan is not required to reopen negotiations in regard to the 

benefit package midyear if the plan is deemed to not be in full compliance once the interim final 

regulation is issued. The NAM hopes that the Agencies work with the plan throughout the year to bring 

the plan in to full compliance in the next plan year. 

We appreciate the opportunity to comment on the RFI, and we look forward to working with you on the 

implementation of MHPAEA. Please do not hesitate to contact me, Jeri Kubicki, at (202) 637-3127 or at 

jkubicki@nam.org if you would like to discuss our comments. 

 Kind regards, 

 

 

 Jeri G. Kubicki 

 Vice President 

 Human Resources Policy 

Manufacturing Makes America Strong

1331 Pennsylvania Avenue, NW y Washington, DC 20004-1790 y (202) 637-3127 y Fax (202) 637-3182 y jkubicki@nam.org y www.nam.org