Docket: CMS-2009-0040 

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 

Comment On: CMS-2009-0040-0048 

Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity Act of 2008 

Document: CMS-2009-0040-0075 

DC 

Submitter Information 

Name: Rick Pollack 

Address: 

DC, 20004 

General Comment 

Please review this document: CMS-4140-IFC 

Thank you. 

Attachments 

PUBLIC SUBMISSION 

As of: April 30, 2010 

Received: April 28, 2010 

Status: Posted 

Posted: April 29, 2010 

Category: Association - Other

Tracking No. 80ae2f61 

Comments Due: May 03, 2010

Submission Type: Web

CMS-2009-0040-0075.1: DC

Page 1 of 1

file://C:\Documents and Settings\baum.beth.EBSADOL\Local Settings\Temporary Internet... 4/30/2010
April 28, 2010 

Ms. Marilyn Tavenner 

Acting Administrator 

Centers for Medicare & Medicaid Services 

Hubert H. Humphrey Building 

200 Independence Avenue, S.W., Room 445-G 

Washington, DC 20201 

RE: CMS-4140-IFC, Interim Final Rule under the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addition Equity Act of 2008; (Vol. 75, No. 21), February 2, 

2010 

Dear Ms. Tavenner: 

On behalf of our more than 5,000 member hospitals, health systems and other health care 

organizations, and our 40,000 individual members, the American Hospital Association 

(AHA) appreciates the opportunity to comment on the interim final rule from the Centers 

for Medicare & Medicaid Services, Employee Benefits Security Administration and 

Internal Revenue Service (referred to as “the agencies” hereafter) on the Paul Wellstone 

and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). 

The AHA supports the parity standards set forth by the agencies in the interim final 

rule. The manner in which this landmark legislation is implemented will greatly impact 

access to and the affordability of mental health and substance use (MH/SU) disorder 

benefits. This interim final rule takes an important step in making certain that 

implementation is complete, systematic and thoughtful. Patients who suffer from these 

conditions are among the most vulnerable Americans, and the parity standards will help 

ensure that mental health and substance use benefits are treated equally in health plan 

benefit designs, which, in turn, will help ensure access to and the affordability of MH/SU 

care. 
Ms. Marilyn Tavenner 

April 28, 2010 

Page 2 of 4 

FINANCIAL REQUIREMENTS AND TREATMENT LIMITATIONS

The MHPAEA prohibits group health plans and health insurers from applying financial 

requirements or treatment limitations to MH/SU benefits that are more restrictive than the 

“predominant” financial requirements or treatment limitations applied to “substantially 

all” medical/surgical benefits. 

Under the rule, financial requirements are defined as deductibles, copayments, 

coinsurance and out-of-pocket maximums. There are two types of treatment limitations: 

quantitative (such as frequency of treatment limits) and non-quantitative (such as fail-first 

policies and step-therapy protocols). The regulations prohibit plans from applying 

cumulative financial requirements (such as deductibles) or quantitative treatment 

limitations (such as visit limits) for MH/SU benefits that accumulate separately from 

cumulative financial requirements or quantitative treatment limitations for 

medical/surgical benefits. We applaud the agencies for imposing this ban, which will 

help ensure access to and affordability of mental health and substance use disorder 

health care. 

In addition, we support the agencies’ decision to essentially keep in place the current 

parity standard, effective since 1998, as it applies to annual and lifetime dollar limit 

financial requirements. 

The rule acknowledges that some group health plans have lower copayments for primary 

care providers than for specialty care providers and that, often, MH/SU providers are 

defined as specialty care providers. However, the rule makes clear that there cannot be a 

separate classification of generalists and specialists in determining whether certain 

financial requirements or treatment limitations meet the MHPAEA parity requirements. 

The AHA supports this provision. As the agencies recognize, health plans commonly 

categorize certain MH/SU providers as specialists for purposes of applying a higher 

copayment level, which can have an extremely negative effect on patient access to care. 

Regarding non-quantitative treatment limitations, the rule states that the processes, 

strategies, evidentiary standards and other factors used to apply non-quantitative 

treatment limitations to MH/SU benefits in a category have to be comparable to and 

applied no more stringently than the processes, strategies, evidentiary standards and other 

factors used to apply to non-quantitative treatment limitations to medical/surgical benefits 

in the same category. However, the agencies acknowledge that different clinical 

standards may be used in making these determinations. The AHA agrees with this 

policy – it is reasonable to require parity as a general rule while allowing differences 

only where clinically appropriate.

The agencies also solicit comments on whether it would be helpful to provide examples 

of how the parity analysis would be applied to non-quantitative treatment limitations. 
Ms. Marilyn Tavenner 

April 28, 2010 

Page 3 of 4 

Conducting parity analyses is not a simple task and we support the agencies providing 

additional examples to help ensure that they are being done correctly. 

SCOPE OF SERVICES 

In the rule, the agencies state that not all treatments or treatment settings for MH/SU 

conditions correspond to those for medical and surgical conditions, but they do not 

provide a formal crosswalk that links medical/surgical benefits (such as skilled-nursing 

facility benefits) to their corresponding MH/SU benefits (such as residential treatment 

benefits). 

In our comment letter on the agencies’ Request for Information on MHPAEA (see 

http://www.aha.org/aha/letter/2009/090526-cl-cms4140-nc.pdf), we asked that the 

agencies provide such a crosswalk. We again make this request, as we believe that it 

will provide critical guidance to plans on how to appropriately implement parity. 

Table 1 below gives our suggestions for the most appropriate linkages. While this is not 

an all-inclusive list of MH/SU services, it provides examples along the continuum. 

Table 1: Suggested Linkages of Medical and Surgical Benefits to 

Their Most Analogous Mental Health or Substance Use Benefits 

Medical and surgical benefit Mental health or substance use benefit 

Inpatient general acute hospital treatments Inpatient psychiatric hospital treatments 

Outpatient hospital treatments Partial hospitalization program 

Intensive outpatient program 

Electroconvulsive therapy treatments 

Skilled-nursing facility treatments Psychiatrically based residential treatments 

In addition, this type of crosswalk would encourage plans to integrate their MH/SU 

benefit and medical and surgical benefit structures into one benefit structure, where an 

inpatient hospitalization is simply considered an inpatient hospitalization, whether it is 

for psychiatric or general acute care. By no longer thinking of MH/SU and medical and 

surgical as two distinct types of health care benefits, we can make progress toward 

overcoming the stigma and discrimination often associated with MH/SU conditions. 

This crosswalk also brings to light another issue that we request the agencies provide 

guidance on. Specifically, the interim final rule states that, when examining whether 

MH/SU benefits are being offered at parity with medical/surgical benefits, a plan must 

only compare benefits within the same category. The rule identifies six categories of 

benefits: 

 Inpatient, in-network; 

 Inpatient, out-of-network; 
Ms. Marilyn Tavenner 

April 28, 2010 

Page 4 of 4 

 Outpatient, in-network; 

 Outpatient, out-of-network; 

 Emergency care; and 

 Prescription drugs. 

The AHA urges the agencies to consider including a category for post-acute care, or, 

as an alternative, providing more instruction on which category post-acute care 

should fall into. At the present time, it is unclear into which category, if any, certain 

post-acute benefits, such as skilled-nursing facility benefits, fall. More detail would help 

ensure that parity is provided appropriately, as well as offer protections for providers and 

patients alike. 

That said, the AHA strongly supports the agencies’ creation of distinct categories 

for out-of-network benefits. These categories reflect congressional intent to apply 

parity to out-of-network services, which is particularly important for mental health 

professionals and their patients, since plan enrollees often seek mental health services 

out-of-network. 

If you have any questions, please feel free to contact me or Joanna Hiatt, senior associate 

director for policy, at (202) 626-2340 or jhiatt@aha.org. 

Sincerely, 

Rick Pollack 

Executive Vice President