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-0108 

Comment on FR Doc # E9-9629 

Submitter Information 

Name: Eric Goplerud 

Address: 

George Washington University, Department of Health Policy 

2021 K St., NW Suite 800 

Washington, DC, 20006 

Email: goplerud@gwu.edu 

Phone: 202-994-4303 

Organization: George Washington University 

General Comment 

• Medical management of mental health and substance use treatment 

benefits and medical necessity criteria. 

The Act does not provide specific guidance on whether plans can apply different 

medical management processes for their medical/surgical and their mental health 

and substance use treatment benefit. Nor does it provide specific guidance about 

whether plans are free to apply different medical necessity criteria. The Act 

clearly recognizes that plans will be employing medical necessity criteria for 

behavioral health benefits: “the criteria for medical necessity determinations made 

under the plan” shall be made available to plan beneficiaries. 

Medical management and application of medical necessity criteria for determining 

coverage would fall into the treatment limitations section of the law. The treatment 

limitations definition provides a list of limits that are subject to parity, 

including “other similar limits on the scope and duration of treatment.” Medical 

management and medical necessity are mechanisms for limiting coverage. 

Therefore, they fit within the treatment limitations definition and are subject to the 

parity requirements. Allowing more stringent medical management or medical 

necessity criteria would be inconsistent with the purpose of the Act. The purpose 

PUBLIC SUBMISSION 

As of: May 26, 2009 

Received: May 26, 2009 

Status: Pending_Post 

Tracking No. 809b6625 

Comments Due: May 28, 2009

Submission Type: Web
of the Act is to ensure “parity” between mental health and substance use benefits 

and medical/surgical benefits. Medical necessity criteria that are more stringent 

than medical/surgical criteria are not at “parity.” Medical management or medical 

necessity criteria that are the same in form but more restrictive in effect would 

also be prohibited. 

The legislation was enacted to remedy a specific problem – namely, “the 

discrimination that exists under many group health plans with respect to mental 

health and substance related disorder benefits.” Unequal and more stringent 

medical necessity criteria or the application of more stringent medical necessity 

criteria for mental health and substance use services than for medical/surgical 

services would undermine the solution that Congress put in place with the Act. 

• How can plans and employers that provide multiple health plans with 

multiple and very different benefits, cost-sharing, deductibles and co-pays meet 

the law's requirements? Can employers offer multiple health plans and a single 

carve-out behavioral health plan? 

Health insurers and employers may offer beneficiaries an array of health plans to 

choose between. These health plans may have very different coverage of 

medical/surgical and behavioral health benefits, different financial limitations such 

as deductibles and co-payments, and different designs of in-network and out-ofnetwork providers (e.g., HMO, POS, PPO, high deductible health plans). Some 

employers offer employees a choice between multiple health plans but contract 

with a single behavioral health vendor whose benefits are “carved-out” from the 

medical/surgical benefit. To what standard are health plans and employers held 

in these instances? 

The Act clearly states that it addresses individual group health plans. It 

states: “in the case of a group health plan (or health insurance coverage offered in 

connection with such a plan) that provides both medical and surgical benefits and 

mental health or substance use disorder benefits, such plan shall ensure....” 

Throughout the Act, the language refers to a single plan or coverage offered in 

connection with such a plan. Therefore, health plans or employers that offer 

multiple plans must comply with the Act’s financial and treatment limitations for 

each plan or offering. The Act states that financial requirements and treatment 

limitations can be “no more restrictive than the predominant financial [and 

treatment limitations] applied to substantially all medical and surgical benefits 

covered by the plan (or coverage),” which is a clear indication that MH/SU and 

medical/surgical benefits are to be consistent within a plan, not across multiple 

plans. It would appear that employers who offer multiple health plans for their 

employees must assure offer mental health and substance use benefits that are 

no more restrictive that the financial and treatment limitations applied to each 

offered health plan. Employers and health plans are free to offer a single mental 

health and substance use benefit as long as it is not more restrictive than the 

least restrictive of the health plans offered. 

• If the plan covers medical detoxification for alcohol or drug intoxication, 

is the plan required to cover a full continuum of services for alcohol and drug use 

disorders, if it covers a full continuum of services for medical conditions under the 

medical/surgical benefit? 

The Act does not mandate coverage of mental health or substance use disorder 

benefits. Plans may choose what mental health conditions and substance use 

disorders that they will cover or whether they will cover no mental health or 

substance use disorders at all. Mental health and substance use benefits are 

defined as “benefits with respect to services for mental health conditions [and 

substance use disorders], as defined under the terms of the plan and in 

accordance with applicable Federal and State law.” Once the decision is made 

to cover some services for a mental health or substance use condition, then 
the “no more restrictive” standard of the Act operates. If a plan covers every level 

and type of medical/surgical care for substantially all medical and surgical 

benefits, but only provides for certain levels or types of care for a substance use or 

mental health disorder, it is likely that the plan has violated the Act’s “no more 

restrictive” standard.” 

A plan may not offer a full continuum of medical/surgical services and limited 

behavioral health services for mental health conditions or substance use 

disorders. The Department of Labor has determined that “benefits for treatment of 

drug and alcohol abuse, stress, anxiety, depression and similar health and 

medical problems constitute “medical” benefits or “benefits in the event of 

sickness” within the meaning of section 3(1). The Department does not make a 

distinction whether behavioral health benefits are provided contractually under a 

plan’s medical/surgical benefit, a behavioral health carve-out, or an employee 

assistance program with counseling benefits: benefits for treatment of behavioral 

health disorders are “medical” benefits or benefits “in the event of sickness.” 

Mental health and substance use benefits across the array of medical benefits 

that plans or employers use are subject to the “no more restrictive” requirements 

of the Act. Plans frequently cover emergency or inpatient medical detoxification 

for alcohol or drug use disorders within their medical/surgical benefit. Employers 

may contract with EAPs that provide limited counseling services for “treatment of 

drug and alcohol abuse, stress, anxiety, depression and similar health and 

medical problems”. If a plan covers some services for a mental illness or 

substance use condition, then “to the extent” the plans offers some services, 

these benefits must be no more restrictive than the preponderance of 

medical/surgical benefits. 

• If the fee schedule is so low that access to in-network or out-of-network 

care is more restrictive than the treatment limitations for medical conditions, does 

that violate the intent or letter of the Act? If the network of mental health or 

substance use treatment providers is more restrictive than the network of 

medical/surgical providers, does that violate the intent or letter of the Act? If the 

end result is a reduction in access to services, does this constitute a violation of 

the “treatment limitations” section of the law? 

The broad language of the treatment limitations section of the Act provides a nonexhaustive list of limits on treatment and indicates that “other similar limits on the 

scope and duration of treatment” come within the definition. To comply with the 

Act, a plan must ensure that “the treatment limitations applicable to such mental 

heath or substance abuse disorder benefits are no more restrictive than the 

predominant treatment limitations applied to substantially all medical and surgical 

benefits covered by the plan.” A strong argument can be made that, in light of 

the purpose of the Act, as stated in the House Education and Labor and Energy 

and commerce Committee Reports that the purpose of the legislation is to 

ensure “fairness” and “equity” for mental health services. Equity and fairness are 

not achieved when the end result of fee schedules or network provider panels is 

reduced access to treatment. To end discrimination in form, but not in effect, 

would stand against the purpose of the Act. Plans should not be able to limit 

fairness and equity though provider fee schedules or restricted provider networks 

what they are not permitted through other treatment limitations or financial 

requirements. 

However, the Act’s discussion of treatment and financial limitations appear to be 

applied to beneficiaries, not to providers. The Act requirements apply 

to “deductibles, copayments, coinsurance, and out of pocket expenses and other 

similar limits on the scope and duration of treatment.” It is difficult to argue that 

fee schedules or extent of provider networks are “other similar limits on the scope 

and duration of treatment.” Practically, however, fee schedules that are so low 

that there are few or no providers to provide services, or that provider networks are 

so restrictive that medically necessary services are many miles distant from 
beneficiaries or have wait lists that are disproportionately lengthy create treatment 

limitations that undermine the goal of parity and equity. If a low fee schedules or 

restrictive provider panels results in disparities in access to MH/SU benefits 

compared to substantially all medical/surgical benefits, a strong argument can be 

made that it is “more restrictive” and thus a violation of the Act. 

• Does the Act permit plans or employers to exclude specific services 

for which there are no directly comparable medical/surgical procedures? 

Examples might include intensive outpatient programs for addictions, 

psychosocial rehabilitation services, psychoanalytic psychotherapy, and 

electroconvulsive therapy? 

Can a plan cover some mental health and substance use treatment services, but 

not others? The Act states that plans must ensure that: “treatment limitations 

applicable to such mental health or substance use disorder benefits are no more 

restrictive than the predominant treatment limitations applied to substantially all 

medical and surgical benefits covered by the plan (or coverage).” The Act 

prohibits a treatment limitation if it is more restrictive than the predominant 

treatment limitations applied to substantially all medical and surgical benefits 

covered by the plan. Under the Act, a treatment limit is considered to be 

predominant if it is the most common or frequent of such type of limit. The limit in 

question must also be applied to substantially all medical and surgical benefits 

under the plan. Applying these concepts, it seems unlikely that a plan that 

limited services to some types of mental health and substance use treatment 

services but not others could be justified, unless there were similar limitations in 

the most common or frequent medical and surgical benefits under the plan. The 

Act imposes significant hurdles before a plan can impose more restrictive 

limitations only for MH/SU benefits. The Act states that health plans must ensure 

that “there are no separate treatment limitations that are applicable only with 

respect to mental health or substance use disorder benefits.” If a plan does not 

cover a particular mental health service or substance use service that does not 

exist outside of mental health or substance use, it is clear that the treatment 

limitation applies only to mental heath or substance use disorders. The criteria for 

inclusion or exclusion of mental health or substance use services must meet the 

high standard of the Act that these be no more restrictive than the predominant 

limitations applied to substantially all medical and surgical benefits. 

The Act very clearly permits health plans to determine which mental health 

conditions and substance use disorders are “defined under the terms of the 

plan.” Once the plan decides which conditions or disorders are covered, it is 

subject to the requirement discussed above concerning treatment limitations. It 

appears a reasonable interpretation that mental health and substance use 

services cannot be limited in a more restrictive manner than medical/surgical 

services. Plans may not subject specific mental health and substance use 

treatment services to greater categorical restrictions or exclusions than those 

applied to the predominant medical/surgical services. 

• Does the act require plans to cover medications that treat mental 

health and substance use disorders at the same level as medication coverage for 

medical/surgical conditions? 

Plans are not obligated by the Act to provide MH/SU benefits. The Act only 

applies to a plan that provides both medial and surgical benefits and mental health 

or substance use disorder benefits. Assuming that the plan offers both 

medical/surgical and MHSU benefits, the question can be raised whether the Act 

applies to medications. The text of the legislation does not specifically address 

coverage of medications. However, there is some indication that medications for 

treatment of mental illnesses and substance use disorders in the legislative 

history. The cost estimate prepared by the Congressional Budget Office includes 

estimates of the “increased use of prescription drugs that mental health parity 

would be likely to induce.” This statement was included in the reports from the 
Congressional Committees that approved the bill. It appears that Congress 

intended that medications would fall within the Act, so that treatment limitations 

and financial requirements respecting medications are subject to the “no more 

restrictive” standard. There would be no justification for allowing requirements for 

medications to be more restrictive for MH/SU benefits than for medical/surgical 

benefits, and would be prohibited under the Act. Similarly the Act could be 

interpreted to require that drug formularies for MH/SU benefits be nor more 

restrictive than those for medical/surgical benefits. Drug formulary management 

would likely fall within the non-exclusive list of benefits included within the 

treatment limitations section. The list included in the treatment limitations of the 

Act is clearly not intended to be exhaustive. Formulary management which is 

concerned with restricting access to medications would fall under the 

treatment “scope and duration” limitations covered by the Act. Coverage for 

medications to treat mental health or substance-related disorders, the tiers and copayments, deductibles, etc. for these medications, and inclusion of at least one 

medication for each FDA clinical indication are determinations would need to be 

made at the plan level based on the criteria in the act of no more restrictive 

financial or treatment limitations. If a plan offered one drug for each FDA clinical 

indication within the medical/surgical benefit and did not do so in the mental 

health or substance use disorder benefit, it would likely be in violation of the Act. 

• Does the Act permit separate but equal deductibles, cost-sharing and 

other financial limitations for mental health and substance abuse treatment and for 

medical/surgical treatment? 

The Act clearly states that “no separate cost sharing requirements ... are 

applicable only with respect to mental health or substance use disorder benefits” 

Separate and equal deductibles, cost-sharing or other financial limitations for 

mental health or substance use disorder benefits from those of medical/surgical 

benefits produces a result that would impose financial requirements on mental 

health and substance use benefits more restrictive than medical/surgical 

benefits. Mental health and substance use treatment expenditures typically 

make up between 2% and 5% of health plans’ expenditures. Separate and equal 

deductibles place a 20:1 or even a 50:1 greater financial limitation for persons 

accessing mental health or substance use benefits compared to persons 

accessing medical/surgical benefits. Separate and equal financial limitations 

would not be permitted by the Act. 

• Does the Act permit plans or employers to carve out behavioral health 

services from medical/surgical services, and to provide more limited behavioral 

health services, for example, through an Employee Assistance Program? Does 

the Act permit plans or employers to carve out behavioral health benefits to a 

separate vendor from other health benefits and apply more restrictive financial or 

treatment limitations on the separately contracted behavioral health benefits from 

those applied to medical/surgical benefits? 

Since at least 1983, the Department of Labor has determined that Employee 

Assistance Programs fall within the definition of an employee welfare benefit plan 

within the meaning of section 3(1) of ERISA and subject to the provisions of title I 

of ERISA. Section 3(1) of ERISA defines the term “employee welfare benefit plan” 

to include: ... any plan, fund, or program which was heretofore or is hereafter 

established or maintained by an employer or by an employee organization, or by 

both, to the extent that such plan, fund, or program was established or is 

maintained for the purpose of providing for its participants or their beneficiaries, 

through the purchase of insurance or otherwise, (A) medical, surgical, or hospital 

care or benefits, or benefits in the event of sickness, accident, disability, death or 

unemployment, or vacation benefits, apprenticeship or other training programs, or 

day care centers, scholarship funds, or prepaid legal services, or (B) any benefit 

described in section 302(c) of the Labor Management Relations Act, 1947(other 

than pensions on retirement or death, and insurance to provide such pensions).” 

The definition is broad, encompassing “medical, surgical, or hospital care or 

benefits, or benefits in the event of sickness, accident, disability” without 
distinction to the type of contractual arrangements that employers or health plans 

make to provide such medical benefits. In a series of ERISA Opinion Letters, the 

Department of Labor clearly indicates that EAPs that deliver counseling benefits 

fall within the definition of a medical benefit. The Department of Labor has 

consistently determined that “benefits for treatment of drug and alcohol abuse, 

stress, anxiety, depression and similar health and medical problems 

constitute “medical” benefits or “benefits in the event of sickness” within the 

meaning of section 3(1). An ERISA Opinion Letter interpreted the phrase “to the 

extent” to indicate Employee Assistance Programs that offer counseling by 

personnel with special training in counseling, psychology, social work, public 

health or other health disciplines falls within section 3(1) of title I of ERISA. An 

EAP that provides telephone or in-person counseling by employees of the 

company, by employees of the EAP or through counselors or other health 

professionals contracted by the EAP are delivering “medical” benefits or 

benefits “in the event of sickness.” An EAP that provides only telephone referrals 

and does not provide any benefits which are in the nature of “medical” benefits or 

benefits “in the event of sickness” and is not staffed by employees with special 

medical or counseling training, is not considered an employee welfare benefit 

plan. 

Employers that choose to offer an Employee Assistance Plan or other “benefits 

for treatment of drug and alcohol abuse, stress, anxiety, depression and similar 

health and medical problems constitute “medical” benefits or “benefits in the event 

of sickness” within the meaning of section 3(1) would be subject to the Parity 

Act’s requirement that financial and treatment limitations for mental and 

substance use benefits be no more restrictive than the medical/surgical benefits. 

Employers or health plans may contract for Employee Assistance Services or 

carve-out behavioral health benefits from their medical/surgical benefits. They are 

not permitted by the Act to impose treatment limitations or financial restrictions 

more stringent than those applied to medical/surgical benefits. 

• Does the Act require that Medicaid managed care plans provide mental 

health and substance use treatment services that are comparable to 

medical/surgical services, even when the full range of services are not 

reimbursable under the States' CMS approved state Medicaid plans? Must 

States reimburse Medicaid managed care plans for mental health and substance 

use treatment services that are not included in state Medicaid plans or CMS 

approved waivers? 

The Act does not mandate Medicaid managed care plans cover mental health or 

substance use disorders. State Medicaid agencies or the health plans that they 

contract with may choose what mental health conditions and substance use 

disorders that they will cover. They may choose to cover no mental health or 

substance use disorders. The State Medicaid agency may choose to cover 

certain diagnoses within their Medicaid managed care plans and others remain in 

Medicaid fee-for-service or in a separately contracted managed behavioral health 

plan. Mental health and substance use benefits are defined as “benefits with 

respect to services for mental health conditions [and substance use disorders], as 

defined under the terms of the plan and in accordance with applicable Federal and 

State law.” Once the State Medicaid agency or its Medicaid managed care plan 

contractor decides to cover some services for a mental health or substance use 

condition, then the “no more restrictive” standard of the Act operates. If a plan 

covers every level and type of medical/surgical care for substantially all medical 

and surgical benefits, but only provides for certain levels or types of care for a 

substance use or mental health disorder, it is likely that the plan has violated the 

Act’s “no more restrictive” standard.” 

State Medicaid agencies use a variety of contractual models for managing 

medical benefits. The Department of Labor has determined that for 

ERISA, “benefits for treatment of drug and alcohol abuse, stress, anxiety, 

depression and similar health and medical problems constitute “medical” benefits 

or “benefits in the event of sickness” within the meaning of section 3(1). There is 
no distinction whether behavioral health benefits are provided contractually through 

a medical/surgical benefit, a behavioral health carve-out, or a disease 

management program: benefits for treatment of behavioral health disorders 

are “medical” benefits or benefits “in the event of sickness.” If State Medicaid 

agencies choose to include some services for a mental illness or substance use 

condition, then it must be subject to the “no more restrictive” requirements of the 

Act. A State that chooses to cover emergency or inpatient medical detoxification 

for alcohol or drug use disorders within their medical/surgical benefit would have to 

expand coverage to match the predominant treatment limitations applied to 

substantially all medical and surgical benefits covered by the plan. If a plan 

covers every level and type of medical/surgical care for substantially all medical 

and surgical benefits, but only provides for certain levels or types of care for a 

substance use or mental health disorder, it is likely that the plan has violated the 

Act’s “no more restrictive” standard.”