Employee QboncaSoca'y ot Nor Aran:

April 26, 2010

Office of Health Plan Standards and Compliance Assistance
Employee Benefits Security Administration

Room N-5653

US Department of Labor

Attention: RIN 1210-AB30

200 Constitution Avenue NW

Washington, DC 20210

Dear Sir or Madam:

T write on behalf of the Employee Assistance Suciety of North America (EASNA), a tti-national
association whose members consist of individuals, organizations, employers, and students in the US,
Canada and Mexico interested in advancing knowledge, tesearch, and best practices toward
achieving healthy and productive workplaces. Wc appreciate the opportunity to comment on the
Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and
Addiction Act of 2008 (IFR). EASNA was very supportive of the Act and was very pleased when
Congress passed this comprehensive parity law. However, we have concerns with the IFR as it is
currently written and as it pertains to Employee Assistance Programs (EAPs).

Specifically, EASNA is concerned with the IFR section that states that when an employer chooses
not to offer any mental health and substance abuse health benefits, it is prohibited from offering an
employee assistance program unless that employee assistance program is in patity with the medical
surgical benefils. This regulation has the effect of depriving that employer of an LAP because no
EAP could ever be in parity with a medical surgical health plan. We maintain that this regulation has
the effect of banning an EAP for that employer.

a\s shown here, the IRS correctly described HAPs in its bulletin regarding LAPs tn the preventative
portion of Health Savings Accounts (IRS; 2004-33; Notice 2004-50 Health Savings Accounts
Additional questions and Answers):

An employer offers a program that provides employces with benefits under an EAP,
regardless of enrollment in a health plan. The EAP is specifically designed to assist the
employcr in improving productivity by helping cmployees identify and resolve personal and
work concerns that affect job performance and the work environment. The benefits consist
primarily of free or low cost confidential short-term counseliig to identify an employee’s
problem that may affect job performance and, when appropriate, teferrals to an outside

rat tbe my a

Employee Assistance Society of North America

2001 Jefferson Davis Highway, Suite 1004 + Atington, VA 22202 3017
«"ph: 708-416 G06Q *- fx; 703-416-0014 + www.easna.org * info@easnd:erg

bois My eae?


April 26, 2010
Page -2-

organizanon, facility or program to assist the employee in resolving the problem. The issues
addressed during the short-term counseling include, but are not limited to, substance abuse,
alcoholism, meatal health or emotional disorders, financial or legal difficulties, and
dependent care needs. This ZAP is not a “health plan” under section 223(c)(1) because it
does not provide significant benefits in the narure of medical care or treatment.

The differences between EAPs and mental health and substance abuse health benefits are profound.
EAPs are offered to all employees irrespective of health care coverage. Typically, anyone in the
employee’s household is cligible to receive the EAP services, including au-pares, in laws, exchange
students; anyone living in the household who could potentially affect the employce’s work
productivity. In many EAPs a mental health or substance abuse diagnosis is not needed to receive
services; a position consistent with the preventive, catly problem identification and resolution foci of
EADs. Additionally, no medical necessity criteria are utilized and no medical management
procedures are employed. Inpaticnt, partial hospitalization, residential treatment center, and
intensive outpatient programs, common levels of care offered by mental health and substance abuse
health benefits, are never offered in an KAP program.

It is a rare EAP program that inchudes psychiatrists in its nctwork of EAP counselors. EAP are
designed to have face-to face session hmits (1-3, 1-5, 1-8 sessions) making them fundamentally
incompatible with the unlimited sessions likely to result from parity. Unlike health plans that focus
on the delivery of health cate services to the covered individual, the focus of EAP is on the health
and productivity of the entre employer organization. EAPs offcr a number of unique cmployer-
otiented services including but not limited to otganizational consultations, conflict resolution
services, consultation to manager and supervisors regarding workplace issue, critical incident stress
debricfings, disability support services, return to work conferences, fitness for duty evaluations,
workplace Urainings, health fairs, disaster planning, ethics and compliance services and workplace
culture analysis and benchmarking.

EASNA understands that the Paul Wellstone and Pete Domenici Menta} {lealth Parity and
Addiction Act of 2008 did not mandate that an employer offer any coverage whatsocver for mental
health and substance abuse benefits. This aspect of the statute appears to respect the independence
of employets to consider how best to recruit, retain and maintain a productive workforce and offer
competitive products and setvices to the marketplace. The proposed regulations pertaining to EAPs
are an understandable attempt to prevent employers from substituting EAP services for mental
health and substance abuse services. However, we believe that an employer that is considering
offering no mental health and substance abuse benefits but wanting to offer an EAP will simply not
offer the EAP either, if this regulation stands. Linking EAPs to health plans in the IFR and to deny
employers the freedom to implement EAPs whose focus is so fundamentally different than health
care covetage is in our opinion counterproductive and harmful to the value of EAP services, the
industry we represent and the employers we support.


April 26, 2010
Page -3-

EASNA urges you to rcissue these regulations in a timely mannet and remove this misguided
ptohibition on EAP deployment so that US employers can take advantage of a powerful employer-
based service that helps keep US companies productive and competitive in an increasingly
competitive global marketplace.

‘Thank you for your consideration of our comments.
Respectfully submitted,

Philip H. Evans
President