May 28, 2009 

Filed Electronically

Centers for Medicare & Medicaid Services, Department of Health and Human Services 

Internal Revenue Service, Department of the Treasury 

Employee Benefits Security Administration, Department of Labor 

 Re: Request for Information 

 Mental Health Parity and Addiction Equity Act of 2008 

Dear Sir or Madam: 

 Thank you for the opportunity to submit comments on issues concerning the Paul 

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

(“MHPAEA”). 

 The New York State Office of Alcoholism and Substance Abuse Services 

(“OASAS”) is dedicated to improving the lives of New Yorkers by leading a premier system 

of addiction services through prevention, treatment and recovery. As the state agency 

responsible for planning, developing and regulating New York State’s system of services to 

prevent and, where indicated, provide treatment for chemical dependence (hereafter referred 

to as substance use disorders), OASAS offers the following comments related to the specific 

areas set forth in the Federal Register Request for Information: 

1. The statute provides that the term “financial requirement” includes deductibles, 

copayments, coinsurance, and out-of-pocket expenses, but excludes an aggregate 

lifetime limit and an annual limit. The statute further provides that the term 

“treatment limitation” includes limits on the frequency of treatment, number of visits, 

days of coverage, or other similar limits on the scope or duration of treatment. Do 

plans currently impose other types of financial requirements or treatment limitations 

on benefits? How do plans currently apply financial requirements or treatment 

limitations to (1) medical and surgical benefits and (2) mental health and substance use 

disorder benefits? Are these requirements or limitations applied differently to both 

classes of benefits? Do plans currently vary coverage levels within each class of 

benefits? 

 New York State Insurance Law requires Group Insurers that provide inpatient 

hospital benefits to provide up to 60 outpatient visits for diagnosis and treatment of 

substance use disorders annually. These insurers must also “make available” up to 30 days 

of certain inpatient services annually (NYS Insurance Law §§32.21, 43.03, 43.22). 
• OASAS seeks confirmation that, since MHPAEA does not distinguish between 

inpatient and outpatient substance use disorder benefits, New York State insurers 

that provide inpatient hospital benefits would now be required to provide the full 

range of substance use disorder benefits (i.e., both outpatient and inpatient). 

• Does MHPAEA require parity in fee schedules? OASAS seeks confirmation that 

any fee schedule for substance use disorder benefits that creates a higher financial 

burden on consumers would represent a violation under the Act. 

• MHPAEA does not distinguish between types of medical and surgical benefits, 

setting the standard for measurement as “substantially all medical and surgical 

benefits.” OASAS seeks confirmation that financial and treatment limitations for 

the treatment of substance use disorders must be measured against all categories 

of benefits and not compared against a narrower class of benefits (e.g., copayments for substance use disorder benefits should not be based on a subset of 

co-payments for more restrictive specialist rates). 

• Clarification is requested as to what pre-authorization requirements will be 

permitted under MHPAEA. If pre-authorization with respect to in-patient 

hospital visits is required under a plan, must pre-authorization be obtained for all 

or only some substance use disorder benefits? 

• OASAS encourages the Departments to adopt regulations that state that 

determinations regarding an individual’s need for services, level of care and 

length of stay should be made by qualified treatment professionals and cannot be 

circumvented by excessive use of medical management tools such as utilization 

review, unreasonable preauthorization requirements and criteria for evidencebased practice treatment services. 

• In New York, OASAS has the statutory authority to license individuals, based on 

their education, training and experience, as credentialed alcoholism and substance 

abuse counselors (“CASAC”). New York State law further requires that certain 

services be provided by CASAC’s. OASAS seeks confirmation that MHPAEA 

does not permit an insurer to deny a benefit based on a claim that services 

provided by a CASAC are not provided by a qualified treatment professional. 

2. What terms or provisions require additional clarification to facilitate 

compliance? What specific clarifications would be helpful? 

• A clarification of the term “substantially all” as used in ERISA §712(a)(3), PHSA 

§2705(a)(3), and IRS §9812(a)(3) is requested. 

• Further clarification of the term “predominant” as defined in ERISA §712(a)(3), 

PHSA §2705(a)(3), and IRS §9812(a)(3) is needed. When will a financial 

requirement or treatment limitation be considered the most common or frequent? 
 3. What information, if any, regarding the criteria for medical necessity 

determinations made under the plan (or coverage) with respect to mental health or 

substance use disorder benefits is currently made available by the plan? To whom 

is this information currently made available and how is it made available? Are 

there industry standards or best practices with respect to this information and 

communication of this information? 

• In New York, insurers frequently use mental health medical necessity criteria instead 

of criteria clinically appropriate to substance use disorders (e.g., “Does the insured 

have homicidal or suicidal tendencies?”) Rules governing MHPAEA should clearly 

indicate that medical necessity criteria determinations for substance use disorder 

benefits fit within the definition of treatment limitations and must be clinically 

appropriate. 

• OASAS seeks further guidance on how medical necessity criteria for substance use 

disorder benefits can be measured against the criteria used for substantially all 

medical and surgical benefits. 

4. What information, if any, regarding the reasons for any denial under the plan (or 

coverage) of reimbursement or payment for services with respect to mental health or 

substance use disorder benefits is currently made available by the plan? To whom is 

this information currently made available and how is it made available? Are there 

industry standards or best practices with respect to this information and 

communication of this information? 

 OASAS is not aware of any industry standard or best practice that is currently 

employed in New York to inform beneficiaries of the reasons for denials under their plans 

for covered benefits related to substance use disorders. 

• OASAS believes it would be very beneficial to develop and publish industry 

standards and best practices so that consumers better understand their covered 

benefits and their rights to obtain information related to any denial of benefits. 

• OASAS seeks information and details concerning how insurance plans subject to 

MHPAEA will be monitored for compliance with the Act. Additionally, clearly 

defined penalties for non-compliance should be established. 

5. To gather more information on the scope of out-of-network coverage, the 

Departments are interested in finding out whether plans currently provide out-ofnetwork coverage for mental health and substance use disorder benefits. If so, how is 

such coverage the same as or different than out-of-network coverage provided for 

medical surgical benefits? 
 In New York benefits for out-of network coverage vary greatly. Individuals are often 

unable to receive the appropriate level of care due to the lack of out-of network benefits and 

geographic limitations for in-network providers. OASAS is pleased that MHPAEA includes 

the out-of-network parity provisions, as this will surely enable a large number of New 

Yorker’s with substance use disorders to receive clinically appropriate treatment services 

that are otherwise unavailable. 

6. Which aspects of the increased cost exemption, if any, require additional guidance? 

Would model notices be helpful to facilitate disclosure to Federal agencies, State 

agencies, and participants and beneficiaries regarding a plan’s or issuer’s election to 

implement the cost exemption?

• OASAS strongly supports the development of model notices to ensure consistency 

and compliance by insurers. 

 Again, OASAS appreciates the opportunity to comment on the implementation of the 

new requirements under MHPAEA. Should any additional information from this agency be 

helpful, please feel free to contact me. 

 Sincerely, 

 

 Robert A. Kent 

 General Counsel 

cc: Karen M. Carpenter-Palumbo 

 Kathleen Caggiano-Siino 

 Reba Architzel 

 Trisha R. Schell-Guy