Docket: IRS-2009-0008 

Request for Information for Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 

2008 

Comment On: IRS-2009-0008-0001 

Request for Information Regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 

Document: IRS-2009-0008-0006 

Comment on FR Doc # E9-09629 

Submitter Information 

Name: Stephen Paul Melek 

Address: 

Denver, CO, 

Submitter's Representative: Stephen P. Melek 

Organization: Milliman 

General Comment 

See attached letter. 

Attachments 

PUBLIC SUBMISSION 

As of: May 22, 2009 

Tracking No. 809a1236 

Comments Due: May 28, 2009

IRS-2009-0008-0006.1 Comment on FR Doc # E9-09629
1099 Eighteenth Street 

Suite 3100 

Denver, CO 80202-1931 

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Tel +1 303 299 9400 

Fax +1 303 299 9018 

milliman.com 

May 19, 2009 

Internal Revenue Service, Department of the Treasury 

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

Employee Benefits Security Administration, Department of Labor 

Submitted via Federal eRulemaking Portal 

Attention: CMS-4137-NC 

Re: Request for Information on the Paul Wellstone and Pete Domenici Mental Health Parity 

and Addiction Equity Act of 2008 (“MHPAEA”) 

Ladies and Gentlemen: 

Milliman is pleased to respond to the agencies’ request for information regarding issues under the 

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

(MHPAEA). Milliman is a leader in providing actuarial consulting services to health insurance 

companies and health plans in the private and public sector, and believe our experience can be 

helpful as the agencies draft coordinated regulations. 

Although your request for information seeks comments on many areas for which health plans and 

health insurers will want guidance, we also believe there are several other concerns that must be 

addressed as part of that guidance. To that end, we hereby raise additional specific questions 

that we hope the agencies will consider when developing MHPAEA regulations: 

1. Preemption of State laws - How does MHPAEA affect a state mandated law that requires 

a specific number of inpatient days for substance use disorder treatment and also 

prohibits the application of medical necessity criteria during that stay? In this case, a 

benefit limit is in place for a substance use disorder benefit and no medical necessity 

criteria are allowed, both of which are contrary to MHPAEA. Does MHPAEA preempt 

state law here? 

2. Similarly, how does MHPAEA affect a state with a mandated benefit for autism, such as a 

required minimum $50,000 annual benefit? Is autism considered a disorder covered by 

MHPAEA? If so, and plans have to cover $50,000 of annual benefits under state law, this 

is contrary to the MHPAEA requirement of no treatment limitations for mental health 

benefits. Does MHPAEA preempt state law here? 

3. Are separate but equal deductibles or separate but equal out-of-pocket limits for 

medical/surgical benefits and for mental health/substance use disorder benefits allowed 

under MHPAEA? 
 Internal Revenue Service, Department of the Treasury 

Centers for Medicare & Medicaid Services, Department of HHS 

Employee Benefits Security Administration, Department of Labor 

May 19, 2009 

Page 2 of 2 

4. Can a health plan exclude all mental health and substance use disorders from its benefit 

plan and provide a separate Integrated EAP-Behavioral Health benefit plan with limits on 

the mental health and substance use disorder benefits and be considered in compliance 

under MHPAEA? 

5. Can limits exist on mental health and substance use disorder benefits that have no 

analogous medical-surgical benefit, such as residential treatment services or partial 

hospital services? 

6. Can plans apply medical necessity criteria to residential treatment benefits which become 

custodial in nature and deny coverage under their criteria? 

7. How does MHPAEA affect coverage for drugs that are used to treat mental illnesses and 

substance use disorders? Can health plans use formularies to help manage these 

pharmacy benefits? Can different brand-name and generic drugs be placed on different 

tiers of the pharmacy benefits? Can specific psychotropic drugs be excluded from a 

formulary? 

8. Can plans provide mental health and substance use disorder benefits through a rider 

instead of the base health plan? If so, do the MHPAEA requirements apply to the rider 

coverage? 

Thank you for the opportunity to submit these questions regarding MHPAEA at this time. We will 

be pleased to provide you any information that might be helpful as you develop the regulations. 

Sincerely, 

 

Stephen P. Melek, FSA, MAAA 

Consulting Actuary