Docket: CMS-2009-0040 

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

Comment On: CMS-2009-0040-0048 

Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity Act of 2008 

Document: CMS-2009-0040-DRAFT-0091 

MI 

Submitter Information 

Name: Pamela Casper 

Address: 

Wixom, MI, 48393 

General Comment 

See attached file(s) 

Attachments 

PUBLIC SUBMISSION 

As of: May 03, 2010 

Received: May 02, 2010 

Status: Draft 

Category: Nurse - HC065 

Tracking No. 80ae5618 

Comments Due: May 03, 2010

Submission Type: Web

CMS-2009-0040-DRAFT-0091.1: MI

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file://C:\Documents and Settings\baum.beth.EBSADOL\Local Settings\Temporary Internet ... 5/4/2010
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May 2, 2010 

Centers for Medicare and Medicaid Service 

U.S. Department of Health and Human Services 

Attention: CMS-4140-IFC 

P.O. Box 8016 

Baltimore, MD 21244-1850 

To Whom It May Concern: 

RE: CMS-4140-IFC, Comments on the Interim Final Rules under the Paul 

Wellstone and Pete Domenici Mental Health Parity and Addition Equity Act of 

2008; (Vol. 75, No. 21) issued on February 2, 2010. 

Thank you for the opportunity to comment on the Interim Final Regulations 

regarding the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity Act of 2008. I will address many of the areas for which comments 

were solicited. 

The Interim Final Regulations regarding the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) don’t adequately 

address “Scope of Services” or “Continuum of Care”. The MHPAEA doesn’t 

provide specific definitions for the terms “mental health conditions” and “substance 

use disorders. ”The regulations state, plans may define mental health conditions 

or substance use disorders. The definitions must be “consistent with generally 

recognized independent standards of current medical practice.” (Federal Register 

Vol. 75, No. 21, Tuesday, February 2, 2010 Interim Final Rules Under the Paul 

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

2008; Final Rule/ Rules and Regulations 45 CFR Part 146, p. 5412) 

The a fore mentioned is too broad and can be subject to many interpretations. 

Therefore, what is meant by “scope of treatment” requires more specific language 

in the regulations. It is imperative that the regulations provide further guidance on 

what is meant by “recognized standards of care” to prevent unmanageable 

loopholes. 

Under the regulations, medical/surgical benefits, mental health benefits and 

substance abuse disorder benefits are generally defined by reference to the terms 

of the health plan providing benefits. Mental health benefits and substance use 

disorder benefits are also defined by reference to applicable Federal and State 

law, and the benefits must be defined "consistent with generally recognized 

independent standards of current medical practice." 

Specific language in each state's parity laws have been analyzed. States have 

enacted mental health parity laws that require a health plan, insurer, or employer 

to provide coverage for mental illness equal to that for physical illness. The study 
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“An Analysis of the Definitions of Mental Illness Used in State Parity Laws” 

analyzed definitions of mental illness used in state parity laws, identified factors 

influencing the development of these definitions, and examined the effects of 

different definitions on access to care for persons with mental illness. (An Analysis 

of the Definitions of Mental Illness Used in State Parity Laws by Marcia C. Peck, 

M.D., M.P.H. and Richard M. Scheffler, Ph.D. Psychiatr Serv 53:1089-1095, 

September 2002 American Psychiatric Association) 

Policy makers, mental health providers, insurers, and advocates were interviewed 

to determine factors influencing a state's definition. Definitions of mental illness 

used in clinical literature and in federal policy were reviewed and compared with 

definitions used in state parity laws. The definitions of mental illness used in state 

parity legislation vary significantly and fit into one of three major categories: (1) 

"broad-based mental illness," (2) "serious mental illness," or (3) "biologically based 

mental illness." State legislatures didn’t rely on clinically accepted definitions or 

federal mental health policy to define each of these categories. Influenced by 

political and economic factors, they developed their own definitions. Peck & 

Scheffler stated that, “Definitions of mental illness in state parity laws have 

important implications for access, cost, and reimbursement; they determine which 

populations receive a higher level of mental health services.” 

Per the National Alliance on Mental Illness (NAMI): “Serious mental illness is used 

to refer to coverage of major mental illnesses, typically defined in statute[s] as 

schizophrenia, schizoaffective disorder, psychotic disorders, bipolar disorder, 

major depression, panic disorders, and obsessive compulsive disorder.”; “Broadbased mental health disorders” is used to refer to coverage of a relatively broad 

range of mental disorders.”; and “Substance abuse disorders” is used to refer to 

coverage of alcoholism and chemical dependency. 

(http://www.nami.org/Template.cfm?Section=Parity1&Template=/ContentManage

ment/ContentDisplay.cfm&ContentID=45313) 

Per the National Conference of State Legislatures, the definition of “biologically 

based mental illness” used in state parity legislation varies. It’s a list of diagnoses 

delineated by an individual state. 

(http://www.ncsl.org/IssuesResearch/Health/StateLawsMandatingorRegulatingMe

ntalHealthB/tabid/14352/Default.aspx) 

Mandating coverage for biologically based mental illnesses, while not offering 

coverage for other mental health conditions and substance use disorders, is not 

adequate nor moral. For example, the etiology for Post Traumatic Stress Disorder 

(PTSD) is not biological. PTSD is not limited to war veterans who can receive 

mental health services through the Veterans Administration. Many people who 

experienced Hurricane Katrina and the 9/11 (September 11, 2001) tragedy have 

suffered from PTSD. Per the National Center for PTSD (the world’s expert on 

PTSD and Traumatic Stress), there is evidence-based treatment for PTSD which 
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includes, psychotherapy, psychoeducation, psychopharmacology and other 

supportive measures. (http://www.ptsd.va.gov/public/pages/faq-about-ptsd.asp) 

Although the etiology for PTSD is not biological, it is a mental health condition 

recognized by the Diagnostic and Statistics Manual of the American Psychiatric 

Association (DSM). The DSM includes universally accepted definitions and 

descriptions of mental illnesses and conditions. Andrew Sperling, the director of 

federal legislative advocacy for the National Alliance on Mental Illness stated that 

NAMI's research has found that most plans will continue to cover "medically 

necessary services" for disorders in the Diagnostic and Statistical Manual of 

Mental Disorders. (http://articles.latimes.com/2008/oct/13/health/he-parity13) 

The regulations need to clearly state a minimum standard to define the terms 

“mental health conditions” and “substance use disorders”. For example, “Covered 

mental health conditions and substance use disorders must include, at the 

minimum, the applicable standards of the most current version of the Diagnostic 

and Statistical Manual of Mental Disorders (DSM)”. 

One of congress’s primary objectives in enacting MHPAEA was to improve access 

to mental health and substance use disorder benefits by eliminating discrimination 

that existed with respect to these benefits after the Mental Health Parity Act of 

1996. (Federal Register Vol. 75, No. 21, p. 5413) The MHPAEA requires that a 

plan must provide parity regarding access to services and the continuum of care. 

This is substantiated by the language in the regulation: 

...Under these regulations, if a plan provides any benefits for a mental 

health condition or substance use disorder, benefits must be provided for 

that condition or disorder in each classification for which any medical/ 

surgical benefits are provided. This follows from the statutory requirement 

that any treatment limitations applied to mental health or substance use 

disorder benefits may be no more restrictive than the predominant 

treatment limitations applied to substantially all medical/ surgical benefits. 

(Federal Register Vol. 75, No. 21, p. 5413) 

However, not all treatments or treatment settings for mental health conditions or 

substance use disorders correspond to those for medical and surgical conditions. 

For example, if a plan limits treatment for major depression to only the use of 

medications prescribed through a primary care provider, it would restrict access to 

psychotherapy and other treatment modalities in the benefit design, thus shifting 

the cost for this benefit to the patient. 

Relapse & relapse prevention is another type of treatment. When people seek help 

for depression and other mental health conditions, hopefully they receive 

treatment that reduces or eliminates symptoms. However, once they leave 

treatment, they may revert to old habits and ways of living. This results in a return 

of symptoms known as relapse. These concepts can be used to describe the 
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dynamics of any mental illness. (Manderscheid RW, Ryff CD, Freeman EJ, 

McKnight-Eily LR, Dhingra S, Strine TW. Evolving definitions of mental illness and 

wellness. Prev Chronic Dis 2010;7(1) [Electronic version] 

www.cdc.gov/pcd/issues/2010/jan/09_0124.htm )

Any strategies or treatments applied in advance to prevent future symptoms are 

known as relapse prevention. Prevention of relapse in mental health conditions is 

crucial because the occurrence of relapse increases chances for future relapses. 

With each relapse, symptoms tend to be more severe and have more serious 

consequences. (www.cdc.gov/pcd/issues/2010/jan/09_0124.htm) Relapse 

prevention aims to teach people strategies that will maintain the wellness skills 

they learned while in treatment. 

The National Institute of Mental Health (NIMH) Collaborative Depression Study 

delineated desirable clinical outcomes for remission and recovery for persons with 

depression. The study refers to: (1) Response as a clinically significant reduction 

in depressive symptoms; (2) Remission as the absence of depressive symptoms 

after a response; (3) Relapse as a return of depressive symptoms after remission; 

(4) Recovery as to sustained remission, with or without concurrent treatment; and 

(5) Recurrence as a return of depressive symptoms after recovery. 

(Keller MB, Shapiro RW, Lavori PW, Wolfe N. Relapse in major depressive 

disorder: analysis with the life table. Arch Gen Psychiatr 1982;39(8):911-5.) 

The term “medical necessity” is the criteria used to determine a beneficiary’s 

eligibility for treatment and the scope of treatment. Persons who have a mental 

health condition and/or a substance use disorders often require maintenance 

treatment to prevent further deterioration, more intensive outpatient treatment and 

hospitalization. If the treatment is designed to avert deterioration rather than treat 

illness to a point of significant improvement, it might be considered outside the 

scope of coverage as defined by medical necessity. Nevertheless, such treatment 

is a clinical necessity. The regulations need to add the term “clinical necessity” to 

the language of the MHPAEA. This is important in order to ensure coverage for 

services which are necessary to sustain or maintain functioning when without the 

service the patient would deteriorate.

This is supported by William Ford who “proposed the concept of ‘treatment 

necessity’ or ‘clinical necessity’ to encompass this broader view of the goals of 

psychiatric services. Treatment necessity requires a service to be: for the 

treatment of mental illness and substance abuse disorders, or symptoms of these 

disorders, and impairments in day-today functioning related to them; for the 

purpose of preventing the need for a more intensive level of psychiatric care; for 

the purpose of preventing relapse of persons with psychiatric disorders; consistent 

with generally accepted clinical practice for psychiatric disorders ...” (“Medical 

Necessity and Psychiatric Managed Care” The Psychiatric Clinics of North 

America 23(2):309–317; http://download.ncadi.samhsa.gov/ken/pdf/SMA03-

3790/SMA03-3790.PDF p. 48. 
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The Paul Wellstone and Pete Domenici Mental Health Parity and Addition Equity 

Act of 2008 states that there are six classifications of benefits. 

“The MHPAEA regulations specify, in paragraph (c)(2)(ii), that there are six 

classifications of benefits (i) inpatient/in-network, (ii) inpatient/out-ofnetwork, (iii) outpatient/in-network, (iv) outpatient/out-of-network, (v) 

emergency care and (vi) prescription drugs. However, the Regulations do 

not define inpatient, outpatient or emergency care.” Thus, these terms are 

subject to plan design and their meanings may differ from plan to plan. 

(Federal Register Vol. 75, No. 21, p. 5413)

However, not all treatments or treatment settings for mental health conditions or 

substance use disorders correspond to those classifications for medical and 

surgical conditions. The language in the regulations need to assure adequate 

access to a full range of settings for patient care. For mental health conditions and 

substance use disorders, treatment settings should include: outpatient, crisis,

hospitalization, partial hospitalization, rehabilitation, detoxification, and residential 

care. (Often persons who have a mental illness also have a substance use 

disorder. Thus, it the individual may need concurrent treatment/services for both 

mental health conditions and substance use disorders.) 

Additionally, the regulations must explicitly prohibit exclusions of levels of care. For 

example, if a plan covers day treatment for programs such as stroke rehabilitation 

under medical/surgical benefits, it must cover partial hospitalization/day treatment 

programs for mental health conditions and substance abuse disorders. 

Furthermore, the regulations should recognize that the scope of treatment for 

mental illness and substance use disorders should be no more restrictive than 

what is covered for other chronic health conditions. For example, if a plan covers 

preventive services for diabetes, heart disease, and cancer; the plan must cover 

preventive services for mental health conditions and substance use disorders. 

This is substantiated in the MHPAEA. 

 “The general parity requirement of paragraph (c)(2) of these regulations 

prohibits a plan (or health insurance coverage) from applying any financial 

requirement or treatment limitation to mental health or substance use 

disorder benefits in any classification that is more restrictive than the 

predominant financial requirement or treatment limitation applied to 

substantially all medical/surgical benefits in the same classification.”

(Federal Register Vol. 75, No. 21, p. 5413)

Before ending my public comment, I would like to include some additional remarks 

regarding access to benefits for mental health and substance use disorders: 

1. It’s essential that the regulations clarify the terms used for the classification 

of benefits because “Plans often vary the financial requirements and 

treatment limitations imposed on benefits based on whether a treatment is 
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provided on an inpatient, outpatient, or emergency basis; whether a 

provider is a member of the plan’s network . . . ” (Federal Register Volume 

75, No. 21 pages 5413). 

2. The language in the regulations should explicitly state that covered services 

and levels of care should be appropriate to the covered diagnoses. 

3. There must not be a “fail-first” policy. If a service is medically or clinically 

necessary and appropriate, failure in another service should not be required 

as a prerequisite to authorization. 

4. The regulation must ensure that there are standards that require networks 

to have sufficient enrolled, participating providers to assure access to 

treatment/services for mental health conditions and substance use 

disorders equal to other health services. Some examples of concerns are: 

(a) If there are a lot of providers listed who are no longer practicing or 

accepting new patients, there may not be adequate access to providers. (b) 

Plans’ whose fee schedules do not entice an adequate supply of providers 

limit access to treatment/services for mental health conditions and 

substance use disorders. 

5. The regulations must require that plans’ utilization management staff 

include credentialed professionals who have specialized training in mental 

health and substance use disorders. 

6. It should be noted that cost effectiveness does not necessarily mean lowest 

cost. 

Thank you for the opportunity to comment on the Interim Final Regulations 

regarding the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity Act of 2008. I have addressed many of the specific areas for 

which comments were solicited. Please take my comments under careful 

consideration as the regulations are further developed.