Docket: EBSA-2009-0010 

Request for Information Regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 

Comment On: EBSA-2009-0010-0001 

Request for Information Regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 

Document: EBSA-2009-0010-DRAFT-0116 

Comment on FR Doc # E9-9629 

Submitter Information 

Name: Joshua Brown 

Address: 

336 Sleepy Hollow Rd 

Smithfield, PA, 15478 

General Comment 

These comments respond to the Request for Information Regarding the Paul 

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

2008 [RIN 0938–AP65]. 

In response to Question 1: “Do plans currently impose other types of financial 

requirements or treatment limitations on benefits?” 

Group health plans providing prescription drug benefits often employ formularies or 

prescription “tiers” to designate drugs that are “preferred” by the benefit plan, and 

therefore a member who is prescribed a drug in the most preferred tier or a drug 

on the formulary receives a higher percentage of reimbursement by the plan, a 

lower required co-payment, or both. There is the potential that such formularies or 

tiered plans could be manipulated so that prescriptions used to treat mental 

health or substance abuse conditions are always placed on the less-preferred 

tiers or rarely make their way onto the coverage formularies. The implementing 

regulations should ensure that such disparities are clearly prohibited. If mental 

health or substance abuse patients are guaranteed equal access to health 

professionals for diagnosis and treatment but are subsequently denied equal 

access to medications prescribed by those professionals (when compared to 

PUBLIC SUBMISSION 

As of: May 27, 2009 

Received: May 27, 2009 

Status: Pending_Post 

Tracking No. 809b7486 

Comments Due: May 28, 2009

Submission Type: Web
patients being treated by a physician prescribing medications for conditions other 

than mental health or substance abuse), prohibitively disparate prescriptions 

costs may make the gains in access to the health professionals all for naught. 

In response to Question 1: “How do plans currently apply financial requirements or 

treatment limitations to (1) medical and 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?” 

Using The Pennsylvania Employee Benefits Trust Fund (PEBTF) Summary Plan 

Description of January 2005, a few examples of the current application of financial 

requirements and treatment limitations follow. This particular Plan relies on a 

distinct plan of coverage for most of its mental health and substance abuse 

benefits: 

*** (Beginning of Quotations from the SPD) 

[EXAMPLE 1:] 

Mental Health and Substance Abuse Services 

Mental health and substance abuse treatment and services are not covered by 

your medical plan. Please see the section on the Mental Health and Substance 

Abuse Program. The first claim for an office visit incurred with a non-mental health 

and substance abuse professional and coded with a psychiatric diagnosis will be 

covered by your medical plan. 

Medical Detoxification Treatment for Substance Abuse: The medical plan covers 

detoxification as an inpatient or outpatient, whichever is determined to be 

medically appropriate by your Claims Payor. For Personal Choice PPO Members: 

Coverage for detoxification is limited to a Maximum of seven days per admission 

and four admissions per lifetime. For Basic Option Members: Non-participating 

substance abuse treatment facilities are not covered. 

Special Medical/Behavioral Health Care Benefits: Both your medical and managed 

behavioral health plans provide outpatient benefits for the diagnosis and medical 

management of the following conditions: Attention Deficit Disorder (ADD), 

Attention Deficit/Hyperactive Disorder (ADHD), Anorexia, Bulimia and Tourette’s 

Syndrome. Under the medical health plan, physicians may diagnose any of these 

conditions, and prescribe and monitor medications. No counseling benefits are 

available under the medical health plan. 

[EXAMPLE 2 (differential treatment of mental health and substance abuse in 

Skilled Nursing Facilities):] 

Skilled Nursing Facility (SNF) 

Benefits are provided for a Skilled Nursing Care Facility (SNF), when Medically 

Necessary. The Member must require treatment by skilled nursing personnel 

which can be provided only on an inpatient basis in a SNF. Admission must be for 

the continued treatment of the same or a related condition for which you had been 

hospitalized. 

No benefits are paid in the following instances: 

1. After you have reached the Maximum level of recovery possible for your 
particular condition, and you no longer require definitive treatment other than 

routine supportive care 

2. When confinement in a SNF is intended solely to assist you with the activities 

of daily living or to provide an institutional environment for convenience 

3. For treatment of alcoholism, drug addiction or mental illness 

4. For intermediate care or custodial care 

[EXAMPLE 3 (different coverage for substance abuse treatment than for mental 

health treatment; the differences in this example relate only to out-of-network 

providers, so only those portions of the SPD are quoted):] 

Mental Health 

Outpatient 

Non-Network 

100% of Usual, Customary and Reasonable (UCR) Charges after $200 annual 

Deductible (outpatient/inpatient combined) up to a max of $35 paid/visit; annual 

max: 60 visits (network/non-network combined) 

Limited to licensed psychiatrists, psychologists, social workers and nurses. 

Subject to retrospective review. 

Mental Health 

Inpatient & Intermediate 

Non-Network 

70% of Usual, Customary and Reasonable (UCR) Charges after $200 annual 

Deductible (outpatient/inpatient combined); annual max: 60 days (network/nonnetwork combined); one physician visit per covered day paid at 70% of UCR after 

annual $200 Deductible is met. Subject to retro review. 

Substance Abuse 

Outpatient 

Non-Network 

Not Covered 

Substance Abuse 

Inpatient 

Non-Network 

Not Covered 

Substance Abuse 

Ambulatory Detoxification 

Non-Network 

Not Covered 

[EXAMPLE 4 (Extra referrals required when compared to the number of referrals 

required for non-mental health and substance abuse benefits under the same 

Plan):] 

Network Care 

To take advantage of the benefits that are available through the Mental Health and 

Substance Abuse Program you should follow these steps: 

1. Call 1-800-924-0105. You will speak to a trained counselor who will gather 

basic information to understand your situation and needs. 

2. Based on the information you provide, the counselor will refer you to the best-
qualified mental health or substance abuse professional located near your place of 

work or home. You will be able to get an in-person appointment. 

3. After your initial meeting(s), the mental health or substance abuse professional 

will discuss your needs and treatment goals with a UBH counselor and an 

individual Treatment Plan will be developed. If, after your initial appointment, you 

decide that you would like to see a different mental health or substance abuse 

professional, you must contact your UBH counselor for a new referral. 

*** (End of Quotations from the SPD) 

In addition to the examples above, virtually every benefit provided under the Mental 

Health and Substance Abuse Program through the PEBTF-selected program 

administrator (United Behavioral Health) requires a special notification to UBH, precertification from UBH before receiving services, or pre-authorization from UBH 

before receiving services; such extensive notification and pre-clearance 

requirements do not apply to the medical and surgical benefits program. 

In response to Question 2: “What terms or provisions require additional 

clarification to facilitate compliance? What specific clarifications would be helpful?” 

Certain group health plans contract with one or more outside professional Claims 

Payors to administer benefits for different types of coverage. For example, a 

group health plan might contract with a distinct Claims Payor for benefits related 

to mental health and substance abuse benefits, another distinct Payor for 

prescription drugs, a third distinct Payor for vision care, a fourth distinct Payor for 

dental care, etc. Because in such cases, different types of benefits are 

administered by separate entities, what may appear to be a generally applicable 

benefit provision, neutrally-administered by a Claim Payor for mental health and 

substance abuse benefits, could in fact be a more burdensome or restrictive 

requirement than the provisions applied by the distinct Claims Payor for medical 

and surgical benefits under the same group plan. Without a requirement that 

group health plans coordinate determination criteria and rule applicability among 

their outside Claims Payors, an outside Claims Payor for mental health and 

substance abuse benefits may effectively subvert the requirements for mental 

health parity by crafting administrative rules that differ from those applied by the 

medical and surgical benefits Payor. 

As an example of this possibility disparity, please see the The Pennsylvania 

Employee Benefits Trust Fund (PEBTF) Summary Plan Description of January 

2005. The 2005 SPD states that “The Board of Trustees [of PEBTF] has the sole 

and exclusive authority and discretion to interpret and construe the Plan 

Document, amend the Plan Document, determine eligibility and resolve and 

determine all disputes which may arise concerning the PEBTF, its operation and 

implementation. The Board of Trustees may from time to time delegate some of 

its authority and duties to others, including PEBTF staff and the Claims Payor for 

each of the Plan Options." Because the PEBTF maintains sole and exclusive 

authority over the operation and implementation of the Plan, and also possesses 

the power to delegate, as it sees fit, those same functions to Claims Payors, it 

may delegate certain interpretive functions to a mental health and substance 

abuse benefits Payor that it does not delegate to a medical and surgical claims 

Payor, or vice versa. This delegation would further the MHPAEA’s purposes if the 
Board of Trustees maintained continuous oversight to ensure that the functions it 

delegated to Claims Payors did not lead to disparate and unequal implementation 

of the Plan Options. But in the absence of such oversight, delegated interpretive 

and implementing decision-making by these Claims Payors may result in less 

favorable treatment of claims for mental health and substance abuse benefits. 

The PEBTF’s 2005 SPD specifically precludes such oversight: “The Board of 

Trustees will generally not overturn on appeal a decision made by the Claims 

Payor which is made within its authority under the terms of the Plan Document.” 

A more particularized example of this same problem centers on the PEBTF’s 

payments of either a “Usual, Customary and Reasonable” (or “UCR”) charge or a 

percentage of the “Plan Allowance.” 

The SPD Glossary defines “Plan Allowance” as follows: 

*** (Beginning of Quotations from the SPD) 

Plan Allowance: Certain Claims Payors determines the maximum covered 

expense for a Covered Service by means of the Plan Allowance, rather than by 

determining the UCR Charge. The Plan Allowance means the fee determined and 

payable by the Claims Payor for Covered Services as follows: 

a. For Preferred Providers, the Plan Allowance is the lesser of the Provider’s billed 

amount or the amount reflected in the Fee Schedule determined by the Claims 

Payor. The Fee Schedule is the document(s) that outlines predetermined fee 

maximums that Participating and Non-Participating Providers will be paid by the 

Claims Payor, as amended from time to time. 

b. For Participating Facility Providers, the Plan Allowance is the negotiated 

amount agreed to by the Provider and the Claims Payor. For Non-Participating 

Facility Providers, the Plan Allowance is the amount charged by the Facility 

Provider to all its patients, but not in excess of the Fee Schedule or other 

maximum payment amount, if any, established by the Claims Payor with respect 

to Non-Participating Facility Providers. 

*** (End of Quotations from the SPD) 

The SPD Glossary defines “Usual, Customary and Reasonable Charge” as follows: 

*** (Beginning of Quotations from the SPD) 

The Maximum covered expense for a Covered Service in the service area. 

Expenses in excess of the UCR Charge are the sole responsibility of the Member. 

The UCR Charge is determined by the Claims Payor under the particular Plan 

option you have selected (PPO, HMO, Basic, Mental Health and Substance 

Abuse Program or Supplemental Benefits), in accordance with the following 

factors: 

• The usual fee which an individual Provider most frequently charges to 

the majority of patients for the procedure performed 

• The customary fee determined by the Claims Payor based on charges 

made by Providers of similar training and experience in a given geographic area for 

the procedure performed 

• The reasonable fee (which may differ from the usual or customary 

charge) determined by the Claims Payor by considering unusual clinical 

circumstances; the degree of professional involvement or the actual cost of 

equipment and facilities involved in providing the service 

The determination of the UCR Charge made by the Claims Payor will be accepted 
by the PEBTF for purposes of determining the Maximum amount or expense 

eligible for coverage under the Plan. Certain Claims Payors use the “Plan 

Allowance” in place of the UCR Allowance. Any reference to “UCR” or the “UCR 

Allowance” shall be deemed to refer to the “Plan Allowance” for those Plan 

Options which are administered by a Claims Payor that use the Plan Allowance. 

NOTE: Certain Claims Payors use the “Plan Allowance” instead of the UCR 

Charge for determining the maximum covered expense. Any reference hereunder 

to the “UCR” or the “UCR Charge” shall be deemed to refer to the Plan Allowance 

for those Plan Options administered by a Claims Payor that uses the Plan 

Allowance. 

*** (End of Quotations from the SPD) 

Because the PEBTF allows Claims Payors to decide whether to pay the UCR 

Charge or the Plan Allowance, if the mental health Payor selects one method and 

the medical and mental health Payor selects another, disparate benefit payments 

could result. Further, if the plan were so inclined, it could even select Claims 

Payors precisely because they use either the UCR Charge or the Plan Allowance 

charge to determine payment amounts, where one method would be systemically 

cheaper to the Plan than the other method. 

Finally, the Plan accepts the determinations of individual Claims Payors as to 

which procedures and therapies are experimental or investigative, and therefore 

not eligible for benefit payments. If a Claims Payor for medical and surgical 

benefits takes an expansive view of what procedures and therapies are covered 

(i.e., it is less likely than other Claims Payors to find that a treatment is not 

covered because it is experimental or investigative) and a Claims Payor for mental 

health and substance abuse benefits take an expansive view of what procedures 

and therapies are experimental or investigative (i.e., it is more likely than other 

Claims Payors to find that a treatment is not covered because it is experimental 

or investigative), then benefit disparities would result in the distribution of benefits. 

These and other potential disparity problems require further clarification about the 

requirements for group health plans that include distinct Claims Payors for 

different benefits. 

In response to Question 5: “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?” 

Please see the response to Question 1, labeled as Example 3, above, in which 

out of network benefits are not paid for substance abuse treatments but are paid 

for mental health treatments. Medical and surgical benefits include out-of-network 

coverage, except for the HMO Option of the Plan. The amount of coverage for outof-network medical and surgical benefits is, on the whole, the same for out-ofnetwork inpatient mental health benefits. According to the SPD, both benefit 

types are covered at 70% of the Usual, Customary and Reasonable (UCR) 

Charges (or Plan Allowance). However, one severe restriction on out-of-network 

outpatient mental health services is that the per-visit payment is limited to $35. 
There is no such maximum on medical services out-of-network, and obviously, 

$35 would rarely (if ever) even close to 70% of the cost of an outpatient visit for 

mental health treatment. 

For reference purposes, The Pennsylvania Employee Benefits Trust Fund 

(PEBTF) Summary Plan Description of January 2005 has been included as an 

attachment with this comment submission.