From: Lynda Kirk [mailto:lkirk@austinbiofeedback.com] 

Sent: Friday, May 22, 2009 7:54 AM 

To: EBSA, E-OHPSCA - EBSA 

Subject: Parity RFI Feedback

Please see the attached letter in response to Parity RFI feedback. On pages two and 

three I have attached Texas HB 1626 (2001) that mandates insurance coverage of 

EEG biofeedback for acquired brain injury, including mental health and cognitive 

symptoms post-injury.

 

Please feel free to contact me for additional input on this issue.

 

Sincerely, 

Lynda Kirk, MA, LPC, BCIA Sr Fellow, BCIA-EEG Fellow, QEEG Diplomate 

Past President AAPB - www.aapb.org; Past President ISNR - www.isnr.org

Clinical Director - Austin Biofeedback and EEG Neurotherapy Center 

www.austinbiofeedback.com 512-794-9355
Comments regarding Regulatory Guidance USCG-2007-27022 

Page 19157, II B specific areas 1 and 4

I am a psychotherapist licensed in the state of Texas who provides EEG biofeedback treatment to 

individuals with Attention Deficit Hyperactivity Disorder and Mood Disorders. EEG biofeedback 

is an empirically validated and widely recognized effective non medication treatment for ADHD, 

as well as other conditions. There are over 50 studies evaluating the effectiveness of EEG 

biofeedback in the treatment of ADHD, Substance Use disorders and Autism. . A recent review 

of this literature concluded “EEG biofeedback meets the American Academy of Child and 

Adolescent Psychiatry criteria for” Clinical Guidelines “for treatment of ADHD.” This means 

that EEG biofeedback meets the same criteria as to medication for treating ADHD, and that EEG 

biofeedback “should always be considered as an intervention for this disorder by the clinician”.

This service has been denied by Georgia Medicaid, Aetna, United Behavioral Health, Blue Cross, 

Cigna, and Amerigroup.

This is limitation of an effective and validated treatment for a mental health problem. The 

reasons given by the insurance companies for this denial fell into two categories: 1) our company 

does not cover biofeedback for Mental Health problems or 2) there is not yet sufficient evidence 

for the efficacy of EEG biofeedback. As such, they are using evidence-based criteria that are far 

more restrictive for mental health services than the criteria which are used for medical/surgical 

services. There are many routine medical and surgical procedures which have far fewer controlled 

studies about their efficacy than does EEG biofeedback. These medical and surgical procedures 

are generally not limited because of concerns about how many controlled studies have been 

performed about them. 

 We believe that the parity regulations, based on legal reviews of the parity statue should 

require that employers and plans pay for the same range and scope of services for Behavioral 

Treatments as they do for Med Surg benefits and that a plan cannot be more restrictive in their 

managed care criteria and reviews for MH and SA disorders when compared to Med Surg. Today 

plans are being more restrictive in how they review evidenced based Mental Health 

and Substance Abuse Treatments when compared to Med Surg treatments. This violates both the 

intent and letter of the parity statue and we hope that the regulations will clarify that this can't 

continue. 

It is of note that in 2001 the State of Texas Legislature mandated (HB 1626) that EEG 

biofeedback (neurofeedback) must be covered by insurance companies in the treatment of 

acquired brain injury and its sequelae, including mental health effects such as depression, anxiety, 

and cognitive deficits. Last month (April), Blue Cross of Texas declared that biofeedback and 

EEG biofeedback (neurofeedback) were “experimental” and “not medically necessary” for all 

conditions (that they had previously covered) EXCEPT acquired brain injury. See the following 

two pages for a copy of the bill.

Sincerely, 

Lynda Kirk, MA, LPC, BCAI-EEG Fellow, QEEG Diplomate 

Past President, Association for Applied Psychophysiology and Biofeedback www.aapb.org 

Past President, International Society for Neurofeedback and Research www.isnr.org 

Past President, Biofeedback Society of Texas 
1-1 AN ACT 

1-2 relating to health benefit plan coverage for certain benefits 

1-3 related to brain injury.

1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 

1-5 SECTION 1. Subchapter E, Chapter 21, Insurance Code, is 

1-6 amended by adding Article 21.53Q to read as follows: 

1-7 Art. 21.53Q. HEALTH BENEFIT PLAN COVERAGE FOR CERTAIN

1-8 BENEFITS RELATED TO BRAIN INJURY

1-9 Sec. 1. APPLICABILITY OF ARTICLE. (a) This article

1-10 applies only to a health benefit plan that provides benefits for

1-11 medical or surgical expenses incurred as a result of a health

1-12 condition, accident, or sickness, including an individual, group,

1-13 blanket, or franchise insurance policy or insurance agreement, a

1-14 group hospital service contract, or an individual or group evidence

1-15 of coverage or similar coverage document that is offered by:

1-16 (1) an insurance company;

1-17 (2) a group hospital service corporation operating

1-18 under Chapter 20 of this code;

1-19 (3) a fraternal benefit society operating under

1-20 Chapter 10 of this code;

1-21 (4) a stipulated premium insurance company operating

1-22 under Chapter 22 of this code;

1-23 (5) a reciprocal exchange operating under Chapter 19

1-24 of this code;

2-1 (6) a Lloyd's plan operating under Chapter 18 of this

2-2 code;

2-3 (7) a health maintenance organization operating under

2-4 the Texas Health Maintenance Organization Act (Chapter 20A,

2-5 Vernon's Texas Insurance Code);

2-6 (8) a multiple employer welfare arrangement that holds

2-7 a certificate of authority under Article 3.95-2 of this code; or

2-8 (9) an approved nonprofit health corporation that

2-9 holds a certificate of authority under Article 21.52F of this code.

2-10 (b) This article applies to a small employer health benefit

2-11 plan written under Chapter 26 of this code.

2-12 (c) This article does not apply to:

2-13 (1) a plan that provides coverage:

2-14 (A) only for benefits for a specified disease or

2-15 for another limited benefit other than an accident policy;

2-16 (B) only for accidental death or dismemberment;

2-17 (C) for wages or payments in lieu of wages for a

2-18 period during which an employee is absent from work because of

2-19 sickness or injury;

2-20 (D) as a supplement to a liability insurance

2-21 policy;

2-22 (E) for credit insurance;

2-23 (F) only for dental or vision care;

2-24 (G) only for hospital expenses; or

2-25 (H) only for indemnity for hospital confinement;

2-26 (2) a Medicare supplemental policy as defined by

2-27 Section 1882(g)(1), Social Security Act (42 U.S.C. Section 1395ss),

3-1 as amended;

3-2 (3) a workers' compensation insurance policy;

3-3 (4) medical payment insurance coverage provided under

3-4 a motor vehicle insurance policy; or

3-5 (5) a long-term care insurance policy, including a

3-6 nursing home fixed indemnity policy, unless the commissioner

3-7 determines that the policy provides benefit coverage so

3-8 comprehensive that the policy is a health benefit plan as described

3-9 by Subsection (a) of this section.

3-10 Sec. 2. EXCLUSION OF COVERAGE PROHIBITED. (a) A health

3-11 benefit plan may not exclude coverage for cognitive rehabilitation
3-12 therapy, cognitive communication therapy, neurocognitive therapy

3-13 and rehabilitation, neurobehavioral, neurophysiological,

3-14 neuropsychological, and psychophysiological testing or treatment,

3-15 neurofeedback therapy, remediation, post-acute transition services,

3-16 or community reintegration services necessary as a result of and

3-17 related to an acquired brain injury.

3-18 (b) Coverage required under this article may be subject to

3-19 deductibles, copayments, coinsurance, or annual or maximum payment

3-20 limits that are consistent with deductibles, copayments,

3-21 cosinsurance, and annual or maximum payment limits applicable to

3-22 other similar coverage under the plan.

3-23 (c) The commissioner shall adopt rules as necessary to

3-24 implement this section.

3-25 Sec. 3. TRAINING FOR CERTAIN PERSONNEL REQUIRED. (a) In

3-26 this section, "preauthorization" means the provision of a reliable

3-27 representation to a physician or health care provider of whether

4-1 the issuer of a health benefit plan will pay the physician or

4-2 provider for proposed medical or health care services if the

4-3 physician or provider renders those services to the patient for

4-4 whom the services are proposed. The term includes

4-5 precertification, certification, recertification, or any other

4-6 activity that involves providing a reliable representation by the

4-7 issuer of a health benefit plan to a physician or health care

4-8 provider.

4-9 (b) The commissioner by rule shall require the issuer of a

4-10 health benefit plan to provide adequate training to personnel

4-11 responsible for preauthorization of coverage or utilization review

4-12 under the plan to prevent wrongful denial of coverage required

4-13 under this article and to avoid confusion of medical benefits with

4-14 mental health benefits.

4-15 SECTION 2. (a) On or before September 1, 2006, the Sunset 

4-16 Advisory Commission shall conduct a study to determine: 

4-17 (1) to what extent the health benefit plan coverage 

4-18 required by Article 21.53Q, Insurance Code, as added by this Act, 

4-19 is being used by enrollees in health benefit plans to which that 

4-20 article applies; and 

4-21 (2) the impact of the required coverage on the cost of 

4-22 those health benefit plans. 

4-23 (b) The Sunset Advisory Commission shall report its findings 

4-24 under this section to the legislature on or before January 1, 2007. 

4-25 (c) The Texas Department of Insurance and any other state 

4-26 agency shall cooperate with the Sunset Advisory Commission as 

4-27 necessary to implement this section. 

5-1 (d) This section expires September 1, 2007. 

5-2 SECTION 3. This Act takes effect September 1, 2001, and 

5-3 applies only to a health benefit plan delivered, issued for 

5-4 delivery, or renewed on or after January 1, 2002. A health benefit 

5-5 plan delivered, issued for delivery, or renewed before January 1, 

5-6 2002, is governed by the law in effect immediately before the 

5-7 effective date of this Act, and that law is continued in effect for 

5-8 that purpose. 

 _______________________________ _______________________________ 

 President of the Senate Speaker of the House 

 I certify that H.B. No. 1676 was passed by the House on April 

 30, 2001, by a non-record vote. 

 _______________________________ 

 Chief Clerk of the House 

 I certify that H.B. No. 1676 was passed by the Senate on May 

 22, 2001, by a viva-voce vote. 

 _______________________________ 

 Secretary of the Senate 

 APPROVED: __________________________