It is important to note that the MHPAEA does NOT articulate a new or different standard for preemption of state
law. Instead, the MHPAEA incorporates the standards in ERISA and the Public Health Service Act set forth by
Congress in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This preemption
standard serves to protect state law, and allows for federal displacement of state law only in cases where a state
law “prevents the application” of federal law, in this case the equitable coverage standards in the MHPAEA.

It is our understanding that this means states can continue to enforce, and in the future develop, state laws
requiring equitable coverage for mental health and substance use disorders relative to medical/surgical coverage.

Clarification is necessary to assist with the identification of those instances when state laws are to be preserved.
It is particularly important to provide examples that illustrate how broader mandates that remain in effect in
states interact with the new federal law. For example, any mandate to cover mental health services (whether
only for people with certain serious mental disorders or only for a certain number of days) should remain in
force. The federal law would then preempt any inappropriate limits on those services, and thus a mandate for 30
days of inpatient care would become a mandate for coverage of inpatient mental health care at parity with other
inpatient health services. Additionally, statements that explain how a mandated minimum benefit becomes a
parity benefit and how mandated coverage of serious mental illness remains in effect and becomes mandate for
parity for serious mental illness are necessary.

Thank you for the opportunity to respond to the RFI. If you have any questions about the Coalition’s comment
letter please contact the Coalition Chair, Pamela Greenberg, President and CEO, Association for Behavioral
Health and Wellness, at greenberg@abhw.org or (202) 756-7726.

Sincerely,

American Hospital Association

American Medical Association

American Psychiatric Association

American Psychological Association
Association for Behavioral Health and Wellness
Federation of American Hospitals

Mental Health America

National Alliance on Mental Illness

National Association of Psychiatric Health Systems


Coalition for Fairness in Mental Illness

Coverage

May 28, 2009
Submitted via the Federal eRulemaking Portal: http://www.regulations.gov

U.S. Department of Labor

Employee Benefits Security Administration

Office of Health Plan Standards and Compliance Assistance
Attention: MHPAEA Comments

Room N-5653

200 Constitution Avenue, NW

Washington, DC 20210

U.S. Department of Health and Human Services
Centers for Medicare & Medicaid Services
Attention: CMS-4137-NC

P.O. Box 8017

Baltimore, MD 21244-8010

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

Re: Request for Information Regarding the Paul Wellstone and Pete Domenici Mental Health Parity and
Addiction Equity Act of 2008

Dear Sir or Madame:

The Coalition for Fairness in Mental Illness Coverage was formed over thirteen years ago to win equitable
mental health coverage. The Coalition members include: American Hospital Association, American Medical
Association, American Psychiatric Association, and American Psychological Association, Association for
Behavioral Health and Wellness, Federation of American Hospitals, Mental Health America, National Alliance
on Mental Illness and National Association of Psychiatric Health Systems. The organizations represent
consumers, family members, health professionals, and health care systems and administrators. The Coalition
was extensively involved in the negotiating and drafting of both the Senate bill and the final law and vigorously
supported its final passage.

We are responding to your request for information with specific comments that all nine organizations would like
to call your attention to in the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity
Act of 2008 (MHPAEA). Many of our organizations are also submitting separate and more detailed comment
letters to your agencies.

Mental illness coverage. It’s time to be fair by treating it equally in health care.
1000 Wilson Boulevard, Suite 1825, Arlington, VA 22209


Issue 1: The Coalition seeks clarification on which group health plans and health insurance issuers are subject
to comply with the MHPAEA. We feel that a review of the entities that the law applies to would be very
helpful. There are two particular instances in which we seek specific clarification—one is clarification that the
law does not apply to Employee Assistance Programs and the other is clarification as to whether or not it applies
when several companies, with fewer than 50 employees each but more than 50 total, join together to collectively
purchase health coverage for all of these employees.

Issue 2: MHPAEA requires that the financial requirements and treatment limitations applied to mental

health/substance use benefits are “no more restrictive than the predominant” financial requirements and
treatment limitations “applied to substantially all” medical/surgical benefits covered by a health plan (or
coverage).

We believe the parity standard of “no more restrictive than” means that the financial requirements or treatment
limitations imposed on mental health or substance use benefits can be no greater than those applied to medical
and surgical benefits. In other words, any financial requirement or treatment limitation imposed on the enrollee
or participant for mental health or substance use benefits must be equal to or less than that applied to
medical/surgical benefits.

In the previous Mental Health Parity Act of 1996 (MHPA), “substantially all,” required that if a plan or
coverage includes a lifetime or annual dollar limit on “substantially all” medical and surgical benefits, then it
may impose either the same or a lesser limit on mental health benefits. The Agencies’ implementing rule (62
Fed. Reg. 66932 et seq., December 22, 1997) essentially defined “substantially all” to mean that if a plan or
coverage includes a lifetime or annual dollar limit on at least two-thirds of all medical/surgical benefits, it may
impose either the same or a lesser limit on mental health benefits. However, if a plan or coverage applies a
different lifetime or annual dollar limit on different benefit categories of more than one-third of all
medical/surgical benefits, it may impose a limit on mental health benefits equal to the weighted average of these
different categories.

The term “substantially all” applies to plans or coverage lifetime or annual dollar limits, where a plan or
coverage generally has only one limit or a few limits. The term “predominant” has been included in the
MHPAEA to address those financial requirements or treatment limitations for which there may be a number of
limits or categories of coverage. The term “predominant” therefore has been included to indicate that the mental
health or substance use benefit should be compared to the prevailing or most common financial requirement or
treatment limitation imposed by the plan or coverage.

Therefore, under MHPAEA the financial requirements or treatment limitations that are applied to “substantially
all” the medical/surgical benefits should be those requirements or limitations that are applied to the mental
health/substance use benefit. Of course, a plan or coverage may apply a lesser financial requirement or
treatment limit to mental health/substance abuse benefits, since the MHPAEA provides that such requirement or
limit shall be “no more restrictive than” the limit imposed on medical and surgical benefits.

The term “predominant” is an additional qualifier and meant to prevent mental health or substance use benefits
financial requirements or treatment limitations from being compared to outliers in the medical/surgical benefit.
This could occur if a plan provides for a number of limits or categories of coverage with regard to a financial
requirement or treatment limitation.

For example, consider parity with regard to a limit on outpatient psychotherapy visits. To apply the MHPAEA
standard, all outpatient medical/surgical visits of a plan should be considered. If there is no limit on
substantially all outpatient medical/surgical visits, for example, then there shall be no limit on outpatient


psychotherapy visits. However, if a plan has several types of outpatient medical/surgical visit limits (i.e. for
primary physician, specialty, chiropractic, physical therapy, and various other services) so that no one (or a lack
of a) limit represents substantially all of the limit on outpatient medical/surgical visits, then the predominant
qualifier applies. This means that outpatient psychotherapy visits should be compared to the prevailing or most
common outpatient medical/surgical visit limit. For most plans we assume that this would be the primary
physician office visit. Therefore, if the plan does not impose a limit on primary physician office visits, then the
plan should not impose a limit on outpatient psychotherapy visits.

In another example, consider parity with regard to a copayment requirement for outpatient psychotherapy visits.
To apply the MHPAEA standard, all outpatient medical/surgical visits of a plan should be considered. If the
copayment requirement for substantially all outpatient medical/surgical visits is $10, for example, then the
copayment requirement for outpatient psychotherapy visits shall be $10. However, if a plan has several types of
outpatient medical/surgical visit copayment requirements, so that no one copayment represents substantially all
of the limit on outpatient medical/surgical visits, then the predominant qualifier applies. This means that
outpatient psychotherapy visits should be compared to the prevailing or most common outpatient
medical/surgical visit limit. For most plans, we assume that this would be the primary physician office visit.
Therefore, if the plan imposes a $10 copayment for a primary physician office visit, then the plan shall impose a
$10 copayment requirement for an outpatient psychotherapy visit.

We believe that it is appropriate to compare inpatient-to-inpatient and outpatient-to-outpatient medical/surgical
benefits with mental health/substance use benefits for purposes of applying the MHPAEA parity standard to
financial requirements and treatment limitations in a plan or coverage. Within the inpatient and outpatient
benefits provided by a plan, the MHPAEA parity standard is meant to address the subtleties that may be
involved in the various financial requirements and treatment limitations applied to various categories of
coverage.

Issue 3: The language in the cost exemption section of MHPAEA requires that “determinations as to increases
in actual costs under a plan (or coverage) for purposes of this section shall be made and certified by a qualified
and licensed actuary who is a member in good standing of the American Academy of Actuaries.” Actuaries are
not licensed by state or federal agencies. Actuaries are certified through education and experience requirements
for membership in the American Academy of Actuaries. We request that the departments clarify that the term
“qualified and licensed” actuary means a member in good standing of the American Academy of Actuaries, and
therefore is an individual qualified to provide the cost exemption determinations required by the new law.

The Coalition also wants to reinforce that MHPAEA requires a group health plan seeking an exemption to have
complied with the law for the first six months of the year involved and that an election of a cost exemption must
be based on historical claims experience—retrospective data—and not on an analysis using only projections—
prospective data. We also agree that model notices would be helpful to facilitate disclosure to federal and state
agencies and to health plan beneficiaries and participants regarding a plan or issuer election to implement the
cost exemption.

Issue 4: The Coalition worked hard to ensure that state mandate laws (where applicable) were not preempted by
the MHPAEA and the upcoming regulations offer an important opportunity to provide guidance and clarity to
the states regarding the preemption of and preservation of state laws that either mandate coverage of mental
health and substance use disorders, set minimum standards for coverage of these disorders, or require equitable
coverage.