655 15th Street, NW Stephen J. Northrup 

Suite 425 Vice President 

 Washington, DC 20005 Federal Affairs

 202.628.7837 (Direct) 

202.638.1096 (Fax) 

 

 

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May 28, 2009

Submitted via Federal eRulemaking Portal: www.regulations.gov

Attn: MHP/AEA Comments 

Office of Health Plan Standards and Compliance Assistance

Employee Benefits Security Administration 

Room N-5653 

U.S. Department of Labor 

200 Constitution Avenue, NW

Washington, DC 20210

Attn: CMS-4137-NC

Centers for Medicare & Medicaid Services 

Department of Health and Human Services 

P.O. Box 8017 

Baltimore, MD 21244-8010

CC:PA:LPD:RP (REG-120692-090)

Room 5205

Internal Revenue Service 

P.O. Box 7604 

Ben Franklin Station 

Washington, DC 20044

Re: Request for Information Regarding the Paul Wellstone and

Pete Domenici Mental Health Parity and Addiction Equity Act of 2008

Dear Sir/Madam: 

On behalf of WellPoint, Inc., thank you for extending the opportunity to comment on the Request for

Information regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPA)

of 2008. 

WellPoint, Inc. is the largest health benefits company in terms of medical membership in the United States, 

with medical enrollment of almost 35 million members. Through its nationwide networks, the company delivers a 

number of leading health benefit plan solutions, along with a wide range of specialty insurance products and services

including life and disability, pharmacy benefit management, dental, vision, behavioral health, long term care and

flexible spending accounts. Headquartered in Indianapolis, Indiana, WellPoint is an independent licensee of the Blue 

Cross and Blue Shield Association and serves its members as the Blue Cross licensee in California; the Blue Cross and 

Blue Shield licensee for Colorado, Connecticut, Georgia, Indiana, Kentucky, Maine, Missouri (excluding 30 counties

in the Kansas City area), Nevada, New Hampshire, New York (as Blue Cross Blue Shield in 10 New York City

metropolitan and surrounding counties and as Blue Cross or Blue Cross Blue Shield in selected upstate counties only), 

Ohio, Virginia (excluding the Northern Virginia suburbs of Washington, D.C.), and Wisconsin; and also serves

members across the country through UniCare. 
WellPoint is working with employers and government programs to finalize the design of health benefits that

will be available after the October 3rd effective date of the MHPA. As a result, we believe it is important that the 

agencies resolve unclear issues in a timely manner in order to inform group health plans and health insurers of their

compliance responsibilities. Attached as Appendix A are our comments on several issues we believe are critical to 

implementation of the MHPA. 

We appreciate the opportunity to comment on these important issues, and we hope that our comments will 

assist the three agencies in evaluating the impact of the MHPA on the health care and health benefits marketplace. 

Please contact me by phone at (202) 628-7837 or by e-mail at Stephen.Northrup@wellpoint.com with any questions. 

Sincerely, 

Stephen J. Northrup 

Vice President, Federal Affairs 

Attachment 

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WellPoint, Inc. 

Appendix A

Comments on Request for Information

Regarding the Paul Wellstone and Pete Domenici

Mental Health Parity and Addiction Equity Act of 2008

Issue 1: Small employer exception

1. We request guidance permitting employers and health insurers to use a full 

time equivalence rule to determine the number of employees for purposes 

of the “small employer” exception to the MHPA

WellPoint requests guidance regarding the calculation of employees for purposes 

of the “small employer” exemption in the Mental Health Parity and Addiction Equity 

Act (MHPA). The MHPA provides an exemption from the parity requirements for small 

employers. Under MHPA, the term “small employer” means, with respect to a calendar 

year and a plan year, an employer who employed an average of at least two (or one in 

certain states) but not more than fifty employees on business days during the preceding 

calendar year, subject to the controlled group rules under Section 414 of the Code and 

using rules under Section 4980D of the Code with regard to employers not in existence 

during the preceding year and predecessor employers. This definition creates difficulties 

because of the impact of state insurance laws governing small employers. 

State insurance laws generally classify an employer group as a “small employer“ 

based upon the number of “eligible employees” participating in the plan, in addition to 

the actual number of employees the employer employs.1

 Small employers governed by a 

state’s small group insurance laws enjoy protections, such as rating restrictions, which 

larger employers do not. Accordingly, in these states, more employer groups will 

qualify as small groups than would otherwise qualify if the state used a “total number of 

employees” calculation. 

However, this discrepancy between state small group laws and the MHPA will 

have an unfavorable result: some employer groups currently classified as small 

employers under state law will also be required to comply with MHPA, as they would 

not meet the MHPA “small employer” exemption. This result also creates a difficult 

and costly administrative challenge for health insurers who have set up their systems 

largely based upon market segments as defined by the specific state. Thus, both 

employer groups and health insurers are bound to experience confusion in complying 

with MHPA if this difference is allowed to stand. Otherwise, health insurers will have 

 

1

 For the states that WellPoint serves, the differences in small employer definitions occur in the states of 

California, Colorado, Connecticut, Georgia, Indiana, Maine, Missouri, New York, Ohio and Texas. See, 

e.g., IC 27-8-15-8.5 (“eligible employee” defined as an employee working at least 30 hours per week; the 

definition does not include temporary or seasonal employees). 
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to create distinct products that compensate for this discrepancy which will likely be 

more costly to the impacted employers’ group health plans. 

Under other federal laws such as COBRA, a full-time equivalence (FTE) rule has 

been established (See Treas. Reg. §54.4980B-2 Q&A-5(e)). Under the FTE method, the 

total number of employees may be determined by totaling all employment hours, not to 

exceed 40, for each part and full time employee who was not employed full-time during 

the previous year and dividing the total number by a figure that represents the annual 

full-time hours under the employer’s general employment practices (not to exceed 40 

hours) and adding the result to the average number of FTEs employed on business days 

during the preceding calendar year. 

WellPoint believes that it is appropriate to implement a full-time equivalence 

rule for MHPA as well. Doing so will minimize the costly administrative impact and 

any confusion employers and insurers may have arising from the discrepancy in the 

definitions of “small employer” in state and federal laws. 

Issue 2: Similar treatment or financial requirements

1. We request guidance clarifying the use of similar treatment limitations 

WellPoint requests guidance clarifying the types of limitations that fall under the 

“predominant treatment limitations” requirement. Is the predominant treatment 

limitation requirement only applicable to limitations applying to all services under the 

policy? Or, may the predominant treatment limitation requirement also apply to 

limitations on a type of service that a member could receive for the treatment of 

numerous conditions? WellPoint believes that both types of limitations should be 

considered as predominant treatment limitations under the MHPA, and requests 

guidance accordingly. 

One broad and general treatment limitation that applies to the benefits of most 

plans is the requirement that the treatment be medically necessary and not experimental 

or investigational. These requirements are applied by the plan to determine benefits 

regardless of the member’s physical or mental condition. It is clear that this type of 

limitation should also apply to mental health-related services. 

Additionally, particular types of services may also have limits, such as outpatient 

office visit or treatment limits, which apply regardless of the member’s mental or 

physical condition. For example, a common benefit with visit limits is physical therapy. 

A health insurance policy may contain treatment limitations of 20 allowed physical 

therapy visits per year, without reference to the reason the therapy is being rendered. 

For purposes of benefit administration it makes no difference why the physical therapy 

is being provided; it could be for a stroke, broken leg, back injury, or some other 

condition. Accordingly, even if the physical therapy is being provided for a condition 

that is ostensibly mental health in nature, the physical therapy visit limitation should 

continue to apply. 
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Therefore, we request that the agencies confirm that the application of individual 

treatment limitations in these circumstances is appropriate and does not violate the 

MHPA. 

2. We request guidance regarding the appropriateness of copay differences 

depending on the type of provider 

 WellPoint requests guidance confirming that health plans may design different 

levels of office visit copays for primary and specialty care, including mental health 

providers. It is appropriate to treat mental health providers as specialists; like other 

providers that are considered specialists, the educational focus of mental health 

providers is on the treatment of one area of the medical field – mental health. 

Additionally, primary care physicians, who oftentimes provide first-line basic mental 

health diagnosis and treatment, refer patients to mental health providers if more focused 

care on a particular mental health condition is necessary. 

 If all types of specialists – whether mental health or medical in nature -- are 

subject to the same level of copay and the copay level is not more restrictive for mental 

health providers, we believe that the requirements of the MHPA would be satisfied, and 

we request guidance accordingly. 

Issue 3: State insurance benefit mandates

1. We request guidance that annual or lifetime benefit maximum dollar amounts 

in state insurance benefit mandates are not preempted by MHPA 

 In the last several years many states have enacted, or are in the process of 

enacting, benefit mandate laws to require benefits for treatment and services for autism 

spectrum disorder.2

 Those state mandate laws generally require health insurers to 

provide benefits for treatment and services for autism spectrum disorders up to a specific 

annual or lifetime dollar amount.3

 

 The MHPA also permits a health plan to decide whether or not to offer mental 

health benefits, and, if benefits are offered, to define what mental health benefits are 

available under the plan or policy, subject to the requirements of other law. Thus, if a 

state insurance benefit mandate requires that benefits be provided up to an annual or 

lifetime benefit maximum, we believe that it is appropriate to take the position that such 

benefit maximums are permissible and not in violation of MHPA, as they require 

 

2

 To date, such mandates have been enacted in the states of Arizona, Colorado, Connecticut, Florida, 

Illinois, Indiana, Kentucky, Louisiana, Montana, New Mexico, Pennsylvania, South Carolina, and Texas. 

Similar bills were introduced in the states of Georgia, Iowa, Kansas, Kentucky, Maine, Maryland, 

Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New York, 

Ohio, Oklahoma, Texas, Utah, Washington, and Wisconsin. 

3

 For example, the Arizona autism benefit mandate, ARS 20-1402.03, provides for annual maximum 

benefits for “behavioral therapy” for the treatment of autism spectrum disorder of $50,000 for children 

between the ages of 0 – 8, and $25,000 for children between the ages of 9 and 16. 
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coverage for treatment and services that would otherwise not be available under the 

policy. 

For example, Kentucky currently has a mandated benefit for autism4

 requiring a 

health insurer to provide benefits for up to $500 per month in “respite” care, among 

other types of services. A fact sheet developed by the Kentucky Department of 

Insurance5

 describes respite care as “short-term care and supervision in a child’s home 

or another setting that allows temporary relief to the child’s caregiver.” The fact sheet 

further states that the insurer cannot require that the respite be provided from a licensed 

or certified health care provider, even though typically plans require health care services 

to be rendered by licensed health care providers. Absent this mandate, health insurers 

would not otherwise pay for respite care to provide the autistic child’s parents with a 

break from their caregiving responsibilities, because respite care is not health care and 

need not be rendered by licensed medical providers. Because the Kentucky autism 

mandate requires coverage of services that a health plan would not typically cover, we 

believe that the $500 monthly maximum benefit in the Kentucky mandate is appropriate 

and does not violate MHPA. 

 Some state autism benefit mandate laws explicitly state that benefits required by 

the mandate are in addition to the benefits already available under the health insurance 

policy.6 In the Illinois mandate, benefits for “habilitative care,” applied behavior 

analysis, and therapeutic care for sensory processing are services not commonly offered 

by health insurers, but required to be provided by the policy under the mandate. 

 Therefore, we request guidance that the annual and lifetime benefit maximum 

amounts in state health insurance benefit mandates do not violate the MHPA. 

Issue 4: Impact upon Medicaid and State Children’s Health Insurance Programs (CHIP)

 

1. We request guidance that Medicaid managed care plans and CHIP 

managed care plans are not out of compliance with MHPA if a state 

Medicaid or CHIP agency has delayed compliance

 

 The MHPA applies to Medicaid managed care plans if a state chooses to cover 

mental health or substance use disorder benefits through the Medicaid health plan7

 All 

states provide behavioral health services for Medicaid beneficiaries, and most provide 

coverage for some substance use disorder benefits. States have taken a variety of 

approaches for such coverage -- the state Medicaid program may provide behavioral 

health benefits through a “carve-out” with a third-party vendor, contract with a managed 

 

4

 KRS 304.17A-143. 

5 http://insurance.ky.gov/kentucky/Documents/pubs/Autism0608.pdf (last accessed 5/22/09). See also 806 

KAR 17:460. 

6 See, e.g., 215 ILCS 5/356z.14 (a) (coverage is required “to the extent that the diagnosis and treatment of 

autism spectrum disorders are not already covered by the policy of accident and health insurance or 

managed care plan.”) 

7 See: 42 U.S.C. §1396u-2 (b)(8) and BBA State Managed Care Letter, January 20, 1998, Health Care 

Financing Administration. 
5

care plan to provide some or all of the services, or give beneficiaries access to services 

through community mental health centers.8

 

 Similarly, the MHPA also applies to State Children’s Health Insurance Program 

(CHIP) managed care plans. CHIP must comply with the law insofar as such 

requirements apply with respect to a health insurance issuer that offers group health 

insurance coverage.9 

 

 Where the mental health or substance abuse benefit is carved-in to the Medicaid 

or CHIP managed care benefit, a managed care plan cannot independently implement 

any MHPA changes without specific direction from the Medicaid or CHIP agency. 

Medicaid managed care plans and CHIP managed care plans have contracts with 

individual state agencies that guide the benefits, operations, and processes in each state. 

Medicaid and CHIP plans cannot change or set benefits independently of their state 

partners, but must wait for individual state implementation guidance. In essence, a 

Medicaid or CHIP managed care plan’s hands are tied until the state agency comes into 

compliance. 

 

 We believe that the managed care plan should not be penalized for this 

dependency. This is particularly important as some state Medicaid and CHIP agencies 

are out of parity, and states are moving at varying speeds to implement. 

 

 Therefore, we believe that Medicaid and CHIP managed care plans should be not 

penalized or be viewed as out of compliance if a state has not released implementation 

guidance in time for plans to come into full compliance by the federal implementation 

deadline. 

 

8 For a good discussion of how some state Medicaid programs provide mental health benefits see: 

American Public Health Services Association and National Association of State Medicaid Directors, 

Serving the Needs of Medicaid Enrollees with Integrated Behavioral Health Services in Safety net 

Primary Care Settings, April 18, 2008. 9 See: 42 U.S.C. §1397cc (f)(2) as amended by Section 502 of the “Children’s Health Insurance Program 

Reauthorization Act of 2009”.