-----Original Message----- 

From: TFusco@ins.state.ny.us [mailto:TFusco@ins.state.ny.us] 

Sent: Thursday, May 28, 2009 1:03 PM 

To: EBSA, E-OHPSCA - EBSA 

Cc: Cohrkao@omh.state.ny.us; EBienski@ins.state.ny.us; 

JCarroll@ins.state.ny.us; JPowell@ins.state.ny.us; LJohnson@ins.state.ny.us; 

MBurns@ins.state.ny.us; TOechsner@ins.state.ny.us; LFelice@ins.state.ny.us 

Subject: Comments from NYS Insurance Dept and NYS Office of Mental Health 

Regarding MHPAEA 

To: Internal Revenue Service, Department of the Treasury 

 Employee Benefits Security Administration, Department of Labor 

 Centers for Medicare & Medicaid Services, Department of Health and 

Human Services 

Dear Sir or Madam: 

 In response to the Request for Information Regarding the Paul 

Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act 

of 2008 (“MHPAEA”), published in 74 FR 19155, please consider the comments 

below submitted on behalf of the New York State Insurance Department and 

the New York State Office of Mental Health. The comments request that any 

future rulemaking regarding the MHPAEA clarify the following issues: 

1. Clarification as to whether the MHPAEA would require health insurance 

coverage that provides hospital, surgical and medical coverage and also 

outpatient substance use disorder benefits (but no inpatient substance use 

disorder benefits) to include inpatient substance use disorder benefits 

also. In New York, all health insurance coverage that provides inpatient 

hospital care must include outpatient substance use disorder benefits but 

there is no requirement that it includes inpatient substance use disorder 

benefits. Therefore, there are currently some coverages in the market with 

no inpatient substance use disorder benefits. We have received questions 

from insurers asking whether the MHPAEA would now require those coverages 

to include inpatient substance use disorder benefits. 

2. Clarification of the term “substantially all” as used in ERISA 

§712(a)(3), PHSA §2705(a)(3), and IRS §9812(a)(3) “Financial requirements 

and treatment limitations.” (e.g. “the financial requirements applicable to 

such mental health or substance use disorder benefits are no more 

restrictive than the predominant financial requirements applied to 

substantially all medical and surgical benefits covered by the plan (or 

coverage)...”). 

3. Clarification as to the appropriate copayment or coinsurance linkage 

of the mental health and substance use disorder benefits. Many health 

insurance coverages provide different copayments or coinsurance for primary 

care services and specialty care services. In New York, mental health and 

substance use disorder benefits are often tied to the higher specialty care 

copayment. Whether or not this remains acceptable in light of MHPAEA is 

questionable. Guidance in any future regulation would be helpful. 

4. Clarification as to how the cost exemption works in a fully insured 

setting. Although it seems that it would be the employer who gets the 

exemption, the MHPAEA appears to permit the insurer to also request and 
receive an exemption. The MHPAEA provides “If a group health plan (or a 

health insurance issuer offering coverage in connection with a group health 

plan) seeks an exemption...” (underlining added). 

5. Clarification regarding counting of employees to determine whether 

the MHPAEA is applicable. In New York, we count the number of employees 

who are eligible for the health insurance coverage in determining whether a 

group contains more than 50 employees. The MHPAEA appears to count total 

number of employees regardless of their eligibility. 

6. Clarification as to applicability to Medicaid Managed Care Plans. 

January 20, 1998 guidance from CMS (formerly HCFA) to State Medicaid 

Directors requires Medicaid Managed Care plans to be treated like health 

insurance issuers offering group health plans for the purpose of complying 

with the Mental Health Parity Act of 1996 (per §1932(b)(8) of the Social 

Security Act). Does the same guidance apply to the MHPAEA of 2008 (i.e., 

Does the MHPAEA of 2008 apply to Medicaid Managed Care Plans)? 

7. The MHPAEA requires The Comptroller General of the United States to 

conduct a study that analyzes the specific rates, patterns, and trends in 

coverage and exclusion of specific mental health and substance use disorder 

diagnoses by health plans and health insurance. We request that 

regulations clarify that this study should also include a study of any 

barriers put in place to deny beneficiaries access to mental health 

benefits (e.g., inadequate provider panels, excessive use of utilization 

review, and poor rates paid to providers). 

 We appreciate the opportunity to provide comments prior to any 

 rulemaking. 

 Thank you. 

Sincerely, 

Thomas Fusco 

Supervising Insurance Attorney 

New York State Insurance Department 

Health Bureau 

65 Court Street, Room 7 

Buffalo, New York 14202 

and 

John V. Tauriello 

Deputy Commissioner and Counsel 

New York State Office of Mental Health 

44 Holland Drive 

Albany, New York 12229