RICHARD BLUMENTHAL KEVIN LEMBO 

ATTORNEY GENERAL HEALTHCARE ADVOCATE 

State of Connecticut State of Connecticut 

By Electronic Mail 

May 28, 2009 

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, D C 20210 

Attention: MHPAEA 

Re: Joint comments on Request for Information Regarding the Paul 

Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 (MHPAEA) 

To Whom it May Concern: 

 We write to comment jointly on the April 28, 2009 Request for Information 

regarding the MHPAEA issued by the Departments of Labor and Health and Human 

Services. 

First, we commend the preservation of strong state mental health parity laws in the 

passage of the MHPAEA. Through the work of dedicated advocates, attorneys general and 

congressional delegations, we were able to prevent preemption of Connecticut’s (and other 

states’) stronger state laws. 

Despite the request for information, we would be remiss if we did not express our 

concern that the MHPAEA allows employers who offer group medical plans to not offer 

mental health services if the cost of doing so reaches an increased cost of two percent. We 

hope that Congress, and DOL and HHS through its analysis of the impact of the MHPAEA, 

will address this issue in recommendations for future legislation since the cost exemption 

can only work to prevent access to medically necessary mental health care. Under the cost 

exemption as written, an increase in cost from legitimate utilization of mental health 

treatment or diagnostic services may actually lead to the elimination of the benefit. The long 

overdue inclusion of a substantive provision to federal mental health parity should not be 
permissive. If an employer offers a group plan that includes medical benefits, it should also 

include mandatory coverage of mental health services without regard to cost-exemptions. 

We do not permit such cost-exemptions on the medical side of these group plans. Including 

a cost exemption seems on its face to be an example of not treating mental illness the same 

as medical illnesses are treated under ERISA. 

Treatment Limitations

We view the phrase “treatment limitations” broadly to include required lengths of 

stay before being allowed access to another service, prior authorization requirements and 

limited and narrow medical criteria that are not applied with consideration to individual 

circumstances. Our experience shows that treatment limitations are not handled consistently 

across medical/surgical and mental health services. These prior authorization and 

concurrent reviews are treatment limitations at the most basic level. 

For instance, many plans have pass through mental health visits, a number of visits 

for which access to care is unimpeded by insurers. After that time, however, insurers often 

impose burdensome prior authorization requirements or concurrent review requirements, 

the likes of which are not seen in any but only the most severe medical cases, such as severe 

illnesses requiring prolonged hospitalizations. It is unheard of to limit visits to a primary 

care provider or a specialist, even though a referral may be required prior to the specialist 

visit.1

The natural subjectivity of the diagnostic activities of a psychiatrist, psychologist or 

APRN requires that there not be artificially imposed limitations on the number of visits 

before treatment limitations kick in. The complications of mental health militate that the 

diagnostician’s considered medical opinion as to diagnosis, treatment design, including level 

of care, pharmaceutical interventions and length of stay be granted deference. Mental illness 

diagnosis and treatment rest upon clinically based activities that should require plans to grant 

the mental health provider’s decisions the presumption of medical necessity with the burden 

of proving that a treatment is not medically necessary placed on the plans. 

Second guessing considered medical judgments in the evaluation and treatment of 

mental health care is an intolerable treatment limitation that can only be truly remedied by 

the shift in the burden in the medical necessity determination to the insurers or 

administrators, where it belongs. Not only is this the logical and proper solution, but it is 

the only solution that can ensure that there is not only mental health parity on paper, but 

also in reality. 

Without this shift, providers have been subject to repeated paperwork to justify 

continued treatment for their patients. Since many mental illnesses are chronic with varying 

periods of exacerbation, ongoing treatment is most often medically necessary. These 

burdens on providers, accompanied by antiquated reimbursement structures and the second 

guessing of treatment options, has led to the wholesale defection in Connecticut of all but 

only a few accessible mental health providers. Covered access is essentially limited to the 

limited number of social workers, APRNs, marriage and family therapists who accept 

 

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 A referral is not a determination of medical necessity as is prior authorization. 

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insurance or other health plan coverage. While these providers are qualified to deliver 

services within their scope of practice, there are not enough of them accepting new patients 

to take on the demand for mental health treatment and/or diagnosis. There are few 

psychologists and virtually no psychiatrists that participate in insurance plans in our state, 

further impeding access to care. Eliminating these types of treatment limitations and burdens 

is the only way to ensure the return of mental health providers to health plan participation in 

sufficient numbers to allow consumers affordable and accessible critical mental health care. 

Medical Necessity Criteria

Use of Criteria in determining medical necessity

While access to medically necessary mental health treatment should not be subject to 

limitations that exceed those of medical health, we still need to recognize that mental illness 

diagnosis and treatment are not the same as medical illnesses. The uniqueness of mental 

health treatment has resulted in financial limitations that while equal in absolute dollars are 

unequal in actual adequacy in treatment. Insurers continue to use absolute criteria in making 

determinations of medical necessity despite the requirement that medical necessity be 

determined on an individual basis. 

Insurers have effectively mined mental health claims to such an intricate level as to 

create very narrow medical necessity criteria that they often incorrectly use as the sole 

determinant for making a decision on medical necessity. In many cases, plans do not follow 

their own criteria. For instance, in many cases criteria require that if co-morbidities are 

present, that there must be more review, but the plans do not do it. As stated above, mental 

health treatment is particularly individualized in nature. For instance, it is commonly know 

that certain prescription drugs may help one individual while psychologically damaging 

another. The same holds true for different forms of therapy and level of care 

determinations. 

Relying flatly on medical necessity criteria is a dangerous game. When one considers 

that many health plans use reviewers who may be medical reviewers or mental health 

professionals who have not met the consumer and/or whose credentials do not match those 

of the treating provider, the use of criteria as the determinant of medical necessity is 

inadequate. 

We recommend that any regulations issued by either DOL or DHHS include a 

provision requiring that : 1) a health plan reviewer’s credentials must match those of a 

treating provider; and 2) plans shall not use solely medical necessity criteria to determine 

medical necessity and shall consider the consumer’s individual circumstances as the 

overriding determinant of medical necessity. 

Sharing of Medical Necessity Criteria

In Connecticut, medical necessity criteria are required to be made available to 

enrollees only upon request. Many do not know that such information can be requested 

when challenging a denial. Though many insurers post their criteria online, those criteria are 

not easy to access and are most often located under provider sections of the websites. We 

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suggest that medical necessity criteria be included in any correspondence that communicates 

either a denial or a partial denial of care. This will allow fair preparation for an appeal. 

Reasons for Denial Not Adequately Shared

We proposed legislation in Connecticut’s current legislative session to address this 

very issue. Denial letters are mostly very general in nature and make a statement such as the 

following, “[W]e have denied your claim as not medically necessary. Your claim does not 

meet our medical necessity criteria.” 

Such a notice does not fairly indicate a true reason for denial and does not permit 

adequate preparation for an appeal. We recommend that in promulgating regulations, you 

consider language that requires: health plans to provide a clear, easy to read, detailed 

explanation for the denial or partial denial, tied not only to criteria used as a guideline, but to 

the individual’s circumstances; the name of the reviewer on whose recommendation the 

denial or partial denial was based; and information on how to appeal. We also recommend 

that in the communication of a denial or partial denial, the health plan include the any 

medical necessity criteria used to evaluate coverage for the requested treatment. 

Conclusion

 We greatly appreciate the issuance of a request for information by the Departments 

of Labor and of Health and Human Services before promulgating regulations for the 

MHPAEA. As advocates who participated in the negotiations on a portion of the Act, and 

as parties who handle hundreds of mental health treatment denials every year, across all 

health plans, our comments are based on a wealth of experience. Thank you for your 

consideration of our comments. 

 Sincerely, 

 Richard Blumenthal Kevin Lembo 

Attorney General Healthcare Advocate 

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