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Cír,il R¡hr and Humøn Dígníty

BOARD OFTRUSTEES

Nikki Heidepriern, Chair

Heideyiem I Magu, Warhingøn DC

David B. Apatoff

Atnolì9 Po¡tet Washingøn DC

Eileen A. Bazelon

D ep artment o f P sy chí auy

Medícal ùllcse ol Penrsylvanía

Robert A. Bun

YaI¿ lm School

Jacqueline Dryfoos

New York NY

Kenneth R. Feinberg

Tlv Feínberg GrouP, Washingøn DC

Howard H. Golcùnan

D e p anment of P s¡ chìatt¡

lJntuasít¡ ol Marlland Sctøol of Medicíne

Emily Hoftnan

OnOwOmMaqlø,nd

Jacki McKinney

Na¡ion¿l y'ssoci¿tíon of Peoplc of C.olm

C.onsam e¡/Suruiu at N etw o¡b

Martha L. Minow

Harua¡dlow School

Stephen J. Morse

Univ¿rsiÐ o/ Penru)lvaniø Law Sclwo|

Joseph G. Perpich

I G P er Þích LLC, B ethes àa MD

Paul Recer

Scíence and medical jolmalirt

Washingron DC

Rhonda Robinson Beale, MD

Uniud B¿lvúqal Hal¡h

Harvey Rosenthal

Neø York y'ssociøtion

of Pslchiauic Reh¿biliøtion Seruices

Elyn R. Saks

Unívcniry o/ Soudø n ùlif u nia

Guld$,lwlof Iaw

\(/. Allen Schaffer, MD

Mllisø¿, VT

Cynthia M, Stinger

Washingøn GrouP Intrrnational

Manin Tolchin

Iotmalíst a¡d author

Washington DG

Sally Zinrnan

CahÍomia Netwatk of

Menøl He¿lth Clien¿ç

HONOMRYTRUSTEE

Miria¡n Bazelon Knox

Varhingøn DC

TRUSTEES EMERITI

MaryJane Englancl

R¿gu Gll¿ge

H. Rutherford Turnbull, III

BachCznw lu Fanilia ard

D¡shl¡¡r, UnÍve¡ic¡ of Kansas

EXECUTIVE DIRECTOR

Robert Bernstein

Affrliadons líst¿¿ fur inþrmat¡onal pwpuæ øi1

May 3, 20L0

lnternal Revenue Service

Department of the Treasury

Employee Benefits Security Administration

Department of Labor

Centers for Medicare and Medicaid Services

Department of Health and Human Services

Re: lnterim Final Rules under the Paul Wellstone and Pete Domenici

Mental Health Parity and Add¡ction Equity Act of 2008 (published in 75

Fed. Reg. 5410 et seq.)

VIA EMAIL: E-OHPSCA.EBSA@dol.eov

To The Departments:

The Bazelon Center for Mental Health Law appreciates the opportun¡ty to

subm¡t comments on the interim final rules ("lFR") for the Paul Wellstone

and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008

("MHPAEA"), âs published in the February 2, 2OtO Federal Register. In

general, we are very pleased that the IFR implements the law to its full

extent, and We look forward to ent¡ty compl¡ance and federal enforcement

to largely end discriminatory mental health and substance use coverage.

Our positive comments are reflective of those submitted by the Mental

Health Liaison Group. We are act¡ve members of the nat¡onal advocacy

coal¡t¡on and also co-cha¡r its Health Policy Committee. We hope you w¡ll

take our comments under cons¡derat¡on.

Paritv Standard

We believe that the paritv standard devised bv the Departments fullv and

appropr¡atelv imp¡ements the statutorv requ¡rement ¡n MHPAEA.

Specifically, the IFR reflects the MHPAEA requirement that a Sroup health

plan that prov¡des both medical/surgical and mental health/ substance

t 101 Fifteenth Street N\ùü, Suite 1212, lVashington DC 20005 a 202-467-5730 (voice) 207..223'0409 (fax) i www.bazelon.org
use d¡sorder benefits must ensure that the financial requirements and treatment limitations

applicable to mental health/substance use disorder benefits are no more restrictive than those

requirements or limitations placed on medical/surgical benefits.

The Departments essentially keep in place the current parity standard, effective since 1998, as

it applies to annual and lifetime dollar limits. We agree and support retention of this standard

for annual and lifetime dollar limits.

For all other financial requirements and quantitative treatment limitations, the Departments

employ a two step test, based on the statutory language of MHPAEA. The first step is to

determine whether the type of financial requirement or quantitative treatment limitation

applies to substantially all-meaning two-thirds-of all medical/surgical benefits in a

classification. lf not, the requirement or limitation cannot be applied to mental

health/substance use disorder benefits. lf ¡t ¡s applied to substant¡ally all medical/surgical

benefits, then the second step is applied to determine the predominant level-meaning the

level that applies to more than one-half of the medical/surgical benef¡ts. The predominant

level may be applied to mental health/substance use disorder benefits. This level may be

reached by a combination of levels, the least restrictive of which is then applied.

This second step-applying the predominant level-is necessary for some financial

requirements and treatment limitations. The Mental Health Parity Act of 1996 provided parity

only for annual and lifetime dollar limits. These are relatively simple financial requirements

imposed by health plans or coverage, since plans generally do not apply a limit or have a single

limit for the entire benefit.

The concept of the "predominant" level was necessary to address the greater complexity

associated with a broader range of financial requirements or treatment limitations, where

there may be a number of varying levels associated with a particular financial requirement or

treatment limitation. For example, while most health plans have a single lifetime limit that

applies to its medical/surgical benefits, it may impose several levels of copayment

requirements that are applied to various services, such as primary physician, specialty,

chiropractic, physical therapy and various other services.

ln implementation of the parity standard with regard to these more complex financial

requirements and treatment limitations it is important to ensure that the predominant level is

employed so that mental health and substance use services are compared to the prevailing or

common financial requirements ortreatment limitations imposed on medical/surgical services.

Mental health and substance use disorder services should not be compared to outlier

requirements or limitations that would, in essence, allow health plans to avoid the intent of

the law. Application of the predominant standard as provided in the IFR addresses our concern

and will provide parity in the application of these various requirements and limitations to

mental health and substance use disorder services.

We also agree with the Departments' determination of six discrete classifications of benefits in
which parity is applied: inpatient/in-network, inpatient/out-of-network, outpatient/innetwork, outpatient/out-of-network, emergency care and prescription drug coverage. lt is

reasonable and acceptable to compare inpatient-to-inpatient and outpatient-to-outpatient

medical/surgical benefits with mental health/substance use disorder benefits for applying the

parity standard to financial requirements and treatment limitations. This reflects the statutory

language of MHPAEA, which distinguishes inpatient from outpatient coverage in general. ln

addition, the MHPAEA is intended to provide for benefits parity and not on a service-by-service

basis. The six categories should allow health plans to apply parity appropriately without

overburdening them with multiple classifications.

We also appreciate the specific provision in the IFR that applies the MHPAEA to out-of-network

benefits, reflecting clear Congressional intent to apply parity to out-of-network services. This

provision is particularly important for mental health professionals and their patients, since plan

enrollees often seek mental health services out-of-network.

Prohibition on Separate Deductibles and other Financial Requirements

We are pleased that the Departments have determined that, while the statutory language of

MHPAEA is not as clear with regard to separate deductibles, out-of-pocket maximums and

other cumulative financial requirements, Congress clearly intended to completely end benefits

discrimlnation against mental health and substance use disorder services in enacting the law.

Therefore, plans that apply separate, even if equal, deductibles, out-of-pocket maximums or

other requirements on plan enrollees for mental health/substance use disorder services, when

such requirements are not placed on other services, are engaging in a form of discrimination

banned by the new parity law.

Separate deductibles and out-of-pocket maximums have represented a real burden to people

with private health coverage who have sought treatment fortheir mental health and substance

use disorders. These individuals and their families have had to meet separate and additional

out-of-pocket costs, not imposed on physical health services, before gaining insurance

payment for their mental health and substance use disorder treatment. As a result, separate

deductibles and out-of-pocket maximums have been a barrier to care where individuals have

had to forego care when they could not meet the separate requirements. Prohibiting separate

cumulative financial requirements will dramatically improve access to mental health and

substance use disorder services for individuals and their families who need and use mental

health and substance use disorder services.

Nonquantitative Treatment Limitations

As mentioned above, Congress clearly intended to end benefits discrimination upon enactment

of the MHPAEA. We appreciate and support that the Departments have applied this

Congressional intent to the limitations that health plans place on mental health and substance

use disorder benefits that are not quantitative and yet limit the scope or duration of these

benefits when compared to medical/surgical benefits.
Specifically, the IFR requires that a group health plan may not impose a nonquantitative

treatment limitation with respect to mental health or substance use disorder benefits in any

classification unless, under the terms of the plan, "...any processes, strategies, evidentiary

standards, or other factors used in applying the nonquantitative treatment limitation to mental

health or substance use disorder benefits in the classification are comparable to, and are

applied no more stringently than, the processes, strategies, evidentiary standards, or other

factors used in applying the limitation with respect to medica/surgical benefits in the

classification, except to the extent that recognized clinically appropriate standards of care may

permit a difference." This is a reasonable standard to apply to nonquantitative treatment

limitations, requiring parity treatment of mental health and substance use benefits with

medical/surgical benefits as a general rule while allowing differences only where clinically

appropriate.

The illustrative list of nonquantitative treatment limitations to which the MHPAEA applies is

also helpful since it includes some of the most common limitations that have been applied

inequitably to mental health and substance use disorder services. Mental health professionals

and the patients they serve will greatly benefit in the application of the law to the various

nonquantitative treatment limitations provided in the lFR. Of course, applying the law to

medical management standards that limit or exclude benefits based on medical necessity or

appropriateness, or based on whether a treatment is experimental or investigative, will have

the broadest favorable impact, and we support its inclusion in the list.

We recommend that the Departments clarify that the MHPAEA applies parity for scope of

services, namely that a plan enrollee needing mental health or substance use disorder services

is provided coverage for a full scope of services comparable to services for medical/surgical

conditions. lt is the clear intent of MHPAEA that limits on the scope and duration of benefits

must be applied no more restrictively in the mental health and substance use disorder benefit

than in the medical/surgical benefit. For this reason the Departments have abided by the

intent of the law by requiring parity for nonquantitative treatment limitations, including as it

applies to medical management and methods for determining usual, customary and

reasonable charges. lt is no less critical that the regulation address parity for scope of

services. To fully address the spirit of the MHPAEA, the Departments should clarify this

important aspect of parity for patients and providers.

How a plan determines usual, customary and reasonable charges can be complex and now

under the lFR, if applied on a more restrictive basis, would violate the MHPAEA.

Usual, customary and reasonable charges are typically applied to out-of-network coverage.

These charges drive the health plan and patient's level of financial responsibility. lf a plan is

allowed to use an unequalformula and process between medical/surgical and mental

health/substance use benefits when establishing these charges it can then create an unequal

and greater financial requirement on the use of out-of-network mental health/substance use

benefits. lt is this type of disincentive placed on individuals seeking out-of-network mental
health services that MHPAEA is meant to end. For this reason, we particularly support

inclusion of this nonquantitative treatment limitation in the lFR.

We turn now to a third nonquantitative treatment limitation to which the MHPAEA would

apply, regarding health plan standards for provider admission to participate on a health plan's

network. The Departments cite that approximately half of mental health care is delivered

solely by primary care physicians (Wang et al). As the Departments note, this trend is likely

due in large part to discrepancies in cost sharing for servlces delivered by mental health

professionals and primary care physicians.

Patients are being treated by primary care providers also in part because they do not have

adequate access to mental health providers in their health plan's network. We believe that

this situation is exacerbated by a stigma that is still associated with seeking services for mental

health and substance use disorders. Plan enrollees are reluctant to complain to their

employer's human resources department about access to mental health care when they would

not hesitate to complain about accessing a pediatrician, orthopedist or other provider for a

physical problem. This reluctance to complain may allow health plans to employ higher

standards for mental health provider admission to network panels.

We agree with the Departments that a "shift in source of treatment from primary care

physicians to mental health professionals could lead to more appropriate care, and thus, better

health outcomes" (p. 5a23). Therefore, we applaud the Departments for applying the parity

law to this nonquantltative treatment limitation that plan enrollees seeking mental health and

substance use disorder treatment have faced for many years.

Mental Health Recoverv-Oriented Services and Supports

Notwithstanding the above comments, and in recognition of the use of the term "medical

standards" in the rules, we encourage the Departments to support within the scope of

services, standards of care that promote recovery of persons with behavioral health conditions,

such as through evidenced-based practices like psychiatric rehabilitation.

Medicaid Manased Care Plans

We urge the Centers for Medicare and Medicaid Services to issue timely rules on the

application of the MHPAEA to Medicaid managed care plans.

Thank you for considering our comments.

Sincerely,

Director, Federal Relations