Via E-Mail: E-OHPSCA.EBSA@DOL.GOV 

May 27, 2009 

U.S. Department of Labor 

Employee Benefits Security Administration 

200 Constitution Avenue, NW 

Room N-5653 

Washington, D.C. 20210 

RE: Paul Wellstone & Pete Domenici Mental Health Parity & 

 Addiction Equality Act of 2008 (Public Law 110-343) 

To Whom It May Concern: 

The Mental Health Association in California (MHAC) is pleased to provide 

comments to the six questions listed in the Federal Register (April 28, 2009, 

Pages 19155 et al) on the rulemaking and regulations concerning the Paul 

Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act 

of 2008. 

1. Financial Requirements and Treatment Limitations

The statute provides that the term ‘‘financial requirement’’ include 

deductibles, co-payments, coinsurance, and out-of-pocket expenses. But it 

excludes an aggregate lifetime and annual limit. These should be included. 

The statute further provides that the term ‘‘treatment limitation’’ include 

limits on the frequency of treatment, number of visits, days of coverage, or 

other similar limits on the scope or duration of treatment. 

Do plans currently impose other types of financial requirements or treatment 

limitations on benefits? 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? 
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In terms of how these requirements are applied differently between 

medical/surgical and mental health/substance use, yes, there are 

differences. 

The most obvious is that plans routinely have different requirements for outof-network care. For example, there is limiting the number of visits or 

excluding all together for mental health while allowing unlimited visits for 

medical/surgical. Also, we see different co-insurance requirements for out of 

network care between medical and mental health. 

Mental health and substance use treatments are often placed under greater 

utilization scrutiny than are medical/surgical treatments. A plan may not 

require prior authorization and ongoing review for many medical/surgical 

interventions while always requiring it for mental health/substance use care. 

This, then, operates as if there is a limit on the number of mental health 

visits when none exist in the contract. 

Provider access to plan information may vary between mental 

health/substance use and medical/surgical plans. 

2. What terms or provisions require additional clarification to 

facilitate compliance? What specific clarifications would be helpful?

The federal parity statute allows plans (and purchasers) to choose which 

mental health and substance use "disorders" will be covered. It will be 

critical to require specificity of diagnoses and interventions for all covered 

conditions. 

Also, requirements for dealing with provisional diagnoses must also be very 

clear, as diagnoses in mental health/substance use treatment often change 

during the initial assessment phase, which could last a few months or more. 

For example, in California, the initial caregiver's provisional diagnosis is 

supposed to hold until the plan or another caregiver declares otherwise. All 

care up to that point is supposed to be covered "as if" the person had a 

parity diagnosis, based on the initial caregiver's diagnosis. 

3. What information, if any, regarding the criteria for medical 

necessity determinations made under the plan (or coverage) with 

respect to mental health or substance use disorder benefits is 

currently made available by the plan? To whom is this information 
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currently made available and how is it made available? Are there 

industry standards or best practices with respect to this information 

and communication of this information?

Most mental health plans do not make their medical necessity criteria known 

even to their own providers. They should be required to do it on their 

websites. This requirement should be required across the board for all 

behavioral health plans, be made available to members as well, and be 

provided through multiple vehicles besides the Internet, e.g., in benefit 

books/SPDs. 

In addition, requirements for coverage when and if those criteria change 

should be spelled out. The criteria needs to be specific and measurable, and 

requirements spelled out as to coverage available while the determination is 

being made. 

4. What information, if any, regarding the reasons for any denial 

under the plan (or coverage) of reimbursement or payment for 

services with respect to mental health or substance use disorder 

benefits is currently made available by the plan? To whom is this 

information currently made available and how is it made available? 

Are there industry standards or best practices with respect to this 

information and communication of this information?

Plans (because of the California Department of Managed Health Care audits) 

have gotten better about putting the required information in their formal 

denial letters that go to the provider and consumer - if they are denying 

based on medical necessity. 

An area of concern is the way in which care is terminated or transitioned 

once the plan has determined that medical necessity no longer is met. This 

juncture can become a morass of phone calls, documents, debates, etc., 

between providers and the UR staff, resulting in a great deal of uncertainty 

and disruption for the client. 

In addition, if the provider determines that the client still needs care, and 

the plan terminates the benefit, the provider is left potentially unreimbursed. 

Clear requirements to address this situation should be considered. 
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Provisions for coverage when treatment is denied for reasons other than 

medical necessity (usually an administrative problem) should be spelled out 

and should not penalize a client for the omission or error of the provider. 

5. To gather more information on the scope of out-of-network 

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-of-network coverage provided for 

medical and surgical benefits?

Out-of-network coverage for mental health and substance use disorder 

benefits is spotty across plans; however, this should be available if it is for 

medical/surgical treatment. 

The level of benefit for out-of-network coverage for mental health is usually 

lower than that for medical/surgical. It is common for plans to limit the 

number of visits and have much larger co-pays or coinsurance, etc., for outof-network mental health and substance use disorder treatment than for 

out-of-network medical/surgical treatments. 

6. Which aspects of the increased cost exemption, if any, require 

additional guidance? Would model notices be helpful to facilitate 

disclosure to Federal agencies, State agencies, and participants and 

beneficiaries regarding a plan’s or issuer’s election to implement the 

cost exemption?

Whatever evidence a plan puts forward to support an application for the 

increased cost exemption must be made public. Consumer advocacy groups 

should be able to appeal or rebut an application for exemption if they can 

provide evidence that the plan's data is flawed, incorrect, etc. 

MHAC appreciates the opportunity to provide comments on these 

regulations. We will be happy to provide more information upon request. 

Sincerely, 

Peter Schroeder 

President of the Board of Directors