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 

Washingotn, 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: Interagency Request for Information Regarding the Paul Wellstone and 

 Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 

Dear Sir or Madam: 

 I write on behalf of the National Retail Federation (NRF) in response to the multiagency Request for Information (RFI) regarding the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addiction Equity Act of 2008 (“the Act”). NRF represents the 

breadth of the retail community and is also a strong advocate of quality and affordable 

health care and coverage. NRF assembled and chaired a broad coalition of business 

and insurance interests that helped to negotiate the detailed compromise on parity 

legislation enacted into the new parity law. We proudly supported its passage. 
 The retail industry is very labor dependent and operates on a wafer thin profit 

margin. Thus, it is vital that we manage health benefits – including mental health and 

substance use disorder (MHSUD) benefits – carefully and in a cost-effective manner. 

Therefore, we are determined not only to help make the new parity law work effectively, 

but also to help make sure that regulations do not stray from the intent of the 

compromise enacted into law. We are extraordinarily sensitive to factors that increase 

the cost of care, but will watch the parity law’s implementation even closer because of 

our intense involvement into its development. 

 Our comments and request for guidance and clarification will focus on section “B” 

of the RFI. We appreciate this opportunity to comment. 

Financial Requirement 

 We continue to believe that the most reasonable interpretation of the law is that 

separate but equal deductible and out-of-pocket maximums are permissible. We also 

believe that this interpretation would benefit beneficiaries most as a combined 

deductible and out-of-pocket maximum would necessarily be set higher than the 

combined separate but equal amounts. 

 We are also concerned that combining the deductible and out-of-pocket 

maximums will increase the complexity of benefit administration and make it more 

difficult for employers to “carve out” MHSUD benefits to a specialized provider. This 

has been a key avenue to assure better quality and more affordable coverage for 

MHSUD benefits. 

 NRF also believes that the comparison in the parity requirement (“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).”) should be made to similar levels of care 

and network status. In other words, inpatient care procedures should be compared to 

other inpatient procedures and outpatient procedures should be compared to other 

outpatient procedures. This represents the common benefits practice which the drafters 

had in mind. 

Employer Flexibility

 Provision of MHSUD benefits – like other benefits is voluntary for employers. We 

also enjoy the ability under the Act to determine MHSUD benefits “as defined under the 

terms of the plan.” Also, the Act kept intact our ability to medically manage all benefits, 

including MHSUD benefits. All three aspects are critical to our ability as employers to 

offer a wide array of benefits, including MHSUD benefits. We strongly urge you not to 

depart from the Act’s protection of all three elements. 
Employee Assistance Programs 

 NRF urges you to clarify that employee assistance programs (EAPs) are not 

subject to the Act. EAPs are not at all comparable to MHSUD providers but rather 

occupy a hybrid role bridging from education and wellness to crisis triage. If the unique 

and flexible role played by EAPs is compromised, we fear that retailers and other 

employers will no longer provide EAPs as an employee benefit. 

Multi-Year Plans 

 We have been made aware that there may be a mismatch between the Act’s 

effective date and multi-year health plans. We would urge you to take the most 

reasonable interpretation of the Act and not require multi-year contracts to be reopened 

and renegotiated. The better approach would apply the Act provisions to the next 

contract year. 

Model Notices 

 We do think model notices regarding a plan or issuer’s election to implement the 

cost exemption would be helpful – particularly as the Act requires a simultaneous notice 

to beneficiaries. Additional guidance on the form, format and content of a cost 

exemption filing would also be welcome. 

Conclusion 

 NRF appreciates the opportunity to comment on the RFI. We would welcome the 

continued opportunity to work with the applicable agencies during implementation of the 

Act. Please do not hesitate to contact me (202-626-8170 / trautweinn@nrf.com) if you 

would like to discuss our comments further. 

 Sincerely, 

 

 E. Neil Trautwein 

 Vice President 

 Employee Benefits Policy Counsel