Docket: EBSA-2009-0010 

Request for Information Regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 

Comment On: EBSA-2009-0010-0001 

Request for Information Regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 

Document: EBSA-2009-0010-DRAFT-0205 

Comment on FR Doc # E9-9629 

Submitter Information 

Name: Elizabeth Dealtry Priaulx 

Address: 

900 Second St. NE Suite 211 

Washington, DC, 20002 

Email: elizabeth.priaulx@ndrn.org 

Phone: 202-408-9514 

Organization: National Disability Rights Network 

General Comment 

May 27, 2009 

The U.S. Department of Health and Human Services 

Centers for Medicare & Medicaid Services 

Department of Health and Human Services 

Attention: CMS-4137-NC 

P.O. Box 8017 

Baltimore, MD 21244-8010 

Request for Information Regarding the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addiction Equity Act of 2008 

Thank you for the opportunity to comment on the regulatory guidance concerning 

the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

PUBLIC SUBMISSION 

As of: May 27, 2009 

Received: May 27, 2009 

Status: Pending_Post 

Tracking No. 809b971a 

Comments Due: May 28, 2009

Submission Type: Web
Equity Act of 2008. The National Disability Rights Network (NDRN) is the 

nonprofit membership organization for the federally mandated CAP and P&A 

programs for individuals with disabilities. Through training and technical 

assistance, legal support, and legislative advocacy, NDRN works to create a 

society in which children and adults with all types of disabilities and their families 

are afforded equality of opportunity. NDRN believes that the MHPAEA is a vital 

step toward equality of health care coverage for millions of Americans with 

mental health needs. 

Economic Analysis, Paperwork Reduction Act and Regulatory Flexibility Act 

NDRN recommends that the law should not permit any special considerations for 

smaller entities or plans that are subject to MHPAEA. These smaller plans 

should be required to comply in the same manner as other plans subject to 

MHPAEA. 

Financial Requirements and Treatment Limitations on Benefits 

NDRN recommends that the regulations make clear that the current definition 

of “financial requirements” and “treatment limitations” in the MHPAEA are not to 

be considered all inclusive. 

Insurance companies have a myriad of ways to limit and discourage receipt of 

mental health services, not all of which are included in the current statutory 

definition. The regulations must make clear that utilization management 

techniques qualify as treatment limitations and as such may not be applied to 

mental health and substance use benefits in a discriminatory and more 

restrictive fashion. Some examples of utilization control techniques that should 

be clearly prohibited include: 

• treatment limitations that plans disproportionately use to limit 

the "scope or duration of treatment" for mental health or substance use 

conditions include the following: 

• Prior authorization that are applied more frequently and with higher 

standards for approval; 

• More restrictive medical necessity and appropriateness criteria; 

• "Fail first" policies that require consumers to suffer adverse 

outcomes from a preferred treatment or medication before the treatment or 

medication recommended by their providers will be covered; 

• Step therapy requirements that force consumers to try a series of 

preferred medications or treatments prior to accessing the recommended 

treatment; 

• Exclusion of certain specialized services like collaborative care, 

assertive community treatment, residential treatment, and partial hospitalization; 

• Higher evidence-based standards; 

• More frequent restrictions on treatments due to experimental status; 

• Stricter cost effectiveness requirements; 

• Lower provider fees; 

• Limitations on covering specific types of providers; 

• More restrictive provider licensure requirements; 
• More limited preferred provider networks or phantom networks with 

invalid phone numbers and names of providers no longer practicing or accepting 

new patients; 

• Requirement to prove current threat of harm to self or others as the 

justification for inpatient care; and 

• Separate deductibles or lifetime limits. 

NDRN recommends that the regulations make clear that the NMPAPA does 

not supplant state parity laws which provide more or greater protections of 

mental health and substance use benefits. 

Clarification is necessary to illustrate how broader mandates that remain in 

effect in States interact with the new federal law. For example, any mandate to 

cover mental health services (whether only for people with certain serious mental 

disorders or only for a certain number of days) should remain in force. The 

federal law would then preempt any inappropriate limits on those services, and 

thus a mandate for 30 days of inpatient care would become a mandate for 

coverage of inpatient mental health care at parity with other inpatient health 

services. Additionally, statements that explain how a mandated minimum 

benefit becomes a parity benefit and how mandated coverage of serious mental 

illness remains in effect and becomes mandate for parity for serious mental 

illness are necessary. 

NDRN recommends that the regulations make clear that the MHPAEA 

provisions apply to Medicaid managed care plans. 

Criteria for Medical Necessity Determinations and Appeals 

NDRN recommends that the regulations include standards for medical necessity 

definitions and for medical necessity appeal and enforcement mechanisms, 

including: 

a) Services must be available to maintain or restore function and to prevent or 

ameliorate medical conditions in addition to treating injuries or illnesses; and 

b) cost effectiveness does not necessarily mean lowest cost. 

The regulations should require plans to do the following: 

• Set timeframes for disclosure of medical necessity criteria; 

• Detail appeal and enforcement mechanisms 

NDRN Recommends model notices to assist with disclosure to participants and 

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

exemption.