MHN - 2370 Kerner Blvd - San Rafael, CA 94901 

May 3, 2010 

Submitted via the Federal eRulemaking Portal: http://www.regulations.gov

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, DC 20210 

Attention: RIN 1210-AB30 

Centers for Medicare & Medicaid Services 

U.S. Department of Health 

and Human Services 

Attention: CMS-4140-IFC 

P.O. Box 8016 

Baltimore, MD 21244-8016 

CC:PA:LPD:PR 

(REG — 120692-

09) Room 5205 

Internal Revenue Service 

P.O. Box 7604 

Ben Franklin Station 

Washington, DC 20044 

Re: Interim Final Rules Under the Paul Wellstone and Pete Domenici Mental Health 

Parity and Addiction Equity Act of 2008 

Dear Sir or Madame: 

MHN, a Health Net Company, is writing to provide comments and recommendations in 

response to Interim Final Rules (IFR) released by the Departments of Health and Human 

Services, Labor and Treasury on February 2, 2010 (75 Fed. Reg. 5410). The IFR 

implements the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). 

MHN, a Health Net Company, is a managed behavioral health organization that has been 

providing employee assistance and managed behavioral health services for over 30 years. 

MHN is a member of the Association for Behavioral Health and Wellness and through 

the association has been supportive of the mental health parity initiative. MHN 

recognizes the importance of equitable treatment for those individuals with mental illness 

and substance use disorders, however, MHN is concerned that the interim final rules have 

created confusion and misinterpret key aspects of the process needed to treat mental 
 MHN - 2370 Kerner Blvd - San Rafael, CA 94901 

illness and substance use disorders. 

By way of history` the managed behavioral health care industry came into existence 

because the medical managed care approach was and remains unable to appropriately 

understand and manage the needs and treatments of those individuals suffering from 

mental illness and substance use disorders. Prior to the development of managed 

behavioral health care, one of the most common reasons that people were discharged 

from inpatient psychiatric facilities was exhaustion of benefits. Treatment plans were 

vague and were tailored more to the length of time allowed by coverage rather than the 

clinical needs of individuals. At the same time outpatient treatment was often 

nondirective and displayed a great deal of variability. It became clear that there was a 

need to address the variability in care and develop processes to enhance effective and 

efficient care for those with mental illness and/or substance use disorders. Seeing 

behavioral health as simply another specialty of medicine fails to acknowledge the 

complexities of behavioral health needs. It has become clear that different approaches 

were needed in order to address and effectively manage behavior health care. 

It is important to note that the majority of providers in behavioral health care (i.e. those 

providers treating mental illness and substance use disorders) are not physicians, and do 

not operate from a medically oriented model. These providers come with widely 

disparate types of educational backgrounds and thus the variability seen in behavior 

health care has been significant. Before managed behavioral health care there were fewer 

formal assessments of individuals seeking care and treatment plans therefore tended to be 

vague with unclear goals and objectives. Outpatient treatment most typically ended when 

people chose not to come any more. Managed behavioral health, by separating itself 

from physical medical care management, was able to effect change which has improved 

access as well as outcomes by requiring providers to develop an understanding of the 

problem they are treating and develop and document a treatment approach with specific 

outcome goals. In the past 20 years a significant number of evidence based treatment 

guidelines have been developed for mental illness and substance use disorders. Through 

the evolution of behavioral treatment and its management we have been able to develop 

both highly effective and efficient care. MHN believes the IFR failed to recognize this, 

and by attempting to the overly match physical medical management and behavior health 

care in ways that are not appropriate, these rules will bring about an unfortunate result of 

diminishing the effectiveness of behavioral health care and are very likely to increase 

overall costs. 

In the preamble to the IFR the document acknowledges the fact that the specialization 

and the effectiveness of managed behavioral health was an important aspect leading to 

the success in being able to bring mental illness and substance use disorders treatment 

parity about. The rules, however, inadvertently undermine managed behavioral health 

by stating that it must match medical management in ways that we know failed in the 

past. By attempting to shoehorn behavior health back into the approaches used to 

manage physical medicine cases the IFR is turning back the clock almost 30 years. The 

IFR preamble recognizes the value of behavioral health care management and its role in 
 MHN - 2370 Kerner Blvd - San Rafael, CA 94901 

leading to parity, but then within the body of the regulations the proposed new rules 

attempt to return behavioral health to the times when treatment was unfocused, 

inefficient, and overly costly. 

Specific Concerns 

MHN believes that the non-quantitative treatment limitations (NQTLs) should be 

removed. As noted above the differences in physical and behavioral health management 

are significant. The tools used by managed behavioral health are key to maintaining 

access and assuring the delivery of effective and efficient care. The non quantitative 

treatment limitations are vague, overly complex to administer, and they leave open many 

opportunities for interpretation that are likely to force behavioral health to use the 

management tools of physical medicine that have failed in the past and which risk a 

return to non directed treatment and uncontrolled costs. 

Further, along with the negative effects on treatment and costs, MHN believes that these 

limitations go beyond the MHPAEA. The vagueness of this section and the fact that 

these rules are attempting to utilize physical medical practices which were abandoned by 

behavioral health almost 30 years ago because of their ineffectiveness is likely to turn 

back the clock rather than move the field forward. 

MHN supports the position put forward by ABHW regarding the use of NQTL’s. 

“MHPAEA amended section 712(a) of ERISA (and the parallel provisions of the Internal 

Revenue Code and the Public Health Services Act) by adding new section 712(a)(3), which 

states 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." [Emphasis added.] All of the examples used by Congress are limitations that 

would, under the regulations, fall within the category of "quantitative" limitations. As 

required by the statute, any other limitations subject to the parity requirement would have 

to be "similar" to these listed examples. The regulations, however, include 

nonquantitative limitations and at the same time recognize that the nonquantitative 

limitations are inherently different from the quantitative limitations and therefore require 

separate rules. To the extent that these two types of limitations are not "similar," there is, as a 

matter of logic, no basis for including the nonquantitative limitations in the regulation. 

Even beyond the plain words of the statute and a logical reading of this provision, there is 

ample support for the conclusion that NQTLs should not be included in the IFRs. First, 

support for this "similarity" analysis can be found by examining the prior mental health 

parity provisions contained in ERISA § 712 prior to amendment by MHPAEA. Prior to 

MHPAEA, section 712(b) of ERISA (and the parallel provision of the Internal Revenue 

Code and Public Health Service Act) provided that the parity requirements were not to 

be construed "as affecting the terms and conditions (including cost sharing, limits on 

numbers of visits or days of coverage, and requirements relating to medical necessity) 

relating to the amount, duration, or scope of mental health benefits under the plan or 

coverage" except as specifically provided by the statute. With the exception of the 

medical necessity determination (which is addressed elsewhere in MHPAEA and the 

IFRs), these limits are all quantitative in nature, and are thus similar to the limitations 
 MHN - 2370 Kerner Blvd - San Rafael, CA 94901 

included in section 712(a)(3), above. Recognizing that these quantitative limits would 

be subject to the new parity standards, Congress amended section 712(b)(2) to provide 

that MHPAEA should not be construed "as affecting the terms and conditions of the plan 

or coverage relating to such benefits under the plan or coverage, except as provided in 

subsection (a)." (Emphasis added.) There is no indication in either section 712(a) or (b) 

as amended by MHPAEA that Congress intended nonquantitative limitations to be 

included under the new parity rules. Indeed, the language at the end of section 

712(b)(2) can only be read as a limitation on the application of the law and on the 

types of practices that must be subject to parity analysis. This limitation essentially 

eliminated from the law under the IFRs, which would subject virtually all practices and 

procedures, quantitative or otherwise, to the parity standard. 

Second, the legislative history of MHPAEA supports applying the parity standard only to 

the type of quantitative standards listed in ERISA § 712(a)(3). The Senate Committee 

Report discussing the Senate version of the bill that ultimately became MHPAEA 

contains the following statement: 

S. 558 does not prohibit group health plans from negotiating 

separate reimbursement or provider payment rates, or managing the 

provision of mental benefits in order to provide medically necessary 

treatments under the plan. 

Sen. Rep. No. 110-53, 110th Cong., 1st Sess. (2007) at p. 3. The Senate Committee 

specifically indicated that separately negotiated provider payment and reimbursement 

rates would not be subject to the parity rule. It is impossible to square this clear 

expression of intent with the inclusion of such items within the NQTL illustrative list. 

Further, with the exception of medical necessity issues (which as noted above are 

addressed elsewhere in the IFRs), the Committee report clearly indicates an intention 

that MHPAEA will not interfere with the management of mental health and substance 

abuse benefits. Such management would not be possible if the practices listed as 

NQTLs are open to constant attack and second-guessing under the IFRs.” 

Shared vs. Combined Deductibles 

MHN requests that the departments reverse the decision to require that plans have to use 

combined deductibles and annual out-of-pocket maximums, rather than allowing 

separate, but equal, deductibles as has been the practice to this point.. We believe that 

this disadvantages both those patients with only behavior health disorders or those 

patients with only medical disorders. A combined single deductible will have to be 

higher than either of the component single deductibles, so those individuals receiving 

treatment for a single behavioral or medical illness will now have an increase in their 

deductibles. It is difficult for MHN to understand how the combining of deductibles is of 

value to the general population receiving care. There seems little to be gained for 

consumers by the combination, while additional expenses are being added to payers and 

plans. We respectfully suggest that the present system of deductibles, and annual and 

lifetime maximums, as set forth in the Mental Health Parity Act of 1996, with the 

allowance for separate, but no less restrictive deductibles in behavioral health, is a more 
 MHN - 2370 Kerner Blvd - San Rafael, CA 94901 

effective and efficient way to manage this aspect of MHPAEA. 

As noted above the shared accumulator work will take a minimum of four to six months. 

Therefore, MHN believes that if the IFR rules on the combination of deductibles and out 

of pocket maximums are not reversed, then the implementation date for these rules 

should move a minimum of 12 months to July 1, 2011. This will allow needed time for 

insurers and payers to create the bridges that are being required as a result of these rules. 

While we feel that the most appropriate approach is to eliminate the shared deductibles 

and the shared annual out-of-pocket maximums, should that not occur the rules must 

leave enough time for the accumulator bridges to be built. Some medical carriers are 

dragging their feet or refusing to work on shared accumulators with behavioral health 

organizations, as required under the MHPAEA. MHN is pleased to have had the 

opportunity to provide comments on the IFR. We are happy to answer any questions that 

arise from this document. 

Respectfully submitted, 

Ian Shaffer MD, MMM, CPE 

Chief Medical Officer