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May 3, 2010 

Submitted via E-mail: E-OHPSCA.EBSA@dol.gov 

U.S. Department of Labor 

Employee Benefits Security Administration 

Office of Health Plan Standards and Compliance Assistance 

Attention: MHPAEA Comments 

Room N-5653 

200 Constitution Avenue, NW 

Washington, DC 20210 

U.S. Department of Health and Human Services 

Centers for Medicare & Medicaid Services 

Attention: CMS-4137-NC 

P.O. Box 8017 

Baltimore, MD 21244-8010 

U.S. Department of the Treasury 

Internal Revenue Service 

Attention: CC:PA:LPD:PR (REG – 120692-09) 

Room 5205 

P.O. Box 7604 

Ben Franklin Station 

Washington, DC 20044 

Re: Response to Interim Final Rules Under the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addiction Equity Act of 2008 

Dear Sir or Madame: 

Aetna1

 welcomes the opportunity to comment on the Interim Final Rules (“IFR”) under 

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

2008 as published in the February 2, 2010 Federal Register (75 Fed. Reg. 5410). 

Aetna is one of the nation’s leading diversified health care benefits companies, serving 

members with information and resources to help them make better informed decisions 

about their health care. Our programs and services strive to improve the quality of health 

care while controlling rising employee benefits costs. Aetna offers a broad range of 

traditional and consumer-directed health insurance products and related services, 

 

1

 Aetna is the brand name used for products and services provided by one or more of the Aetna group of 

subsidiary companies. The Aetna companies that offer, underwrite or administer benefits coverage include: 

Aetna Health Inc., Aetna Health of California, Inc., Aetna Health of the Carolinas, Inc., Aetna Health of 

Illinois, Inc., Aetna Health Insurance Company of Connecticut, Aetna Health Insurance Company of New 

York, Corporate Health Insurance Company and/or Aetna Life Insurance Company. 
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including medical, pharmacy, dental, behavioral health, group life, long-term care and 

disability plans and medical management capabilities. 

Aetna has been at the forefront of the enactment of the Mental Health Parity and 

Addiction Equity Act of 2008 (“MHPAEA”). Our organization was a leader in 

supporting Senate Bill 558 in 2004. We then actively endorsed the Senate-House 

compromise agreed to in June of 2008 and we were fully and consistently engaged in the 

enactment of the final legislation. 

Because we have been so invested in the enactment of this law, we are equally invested 

in how it is implemented via the regulations. One in five Americans will suffer from a 

mental illness this year. The impact of the current economic climate will result in 

increases in depressive and anxiety disorders and the growing need for behavioral 

healthcare services may be unprecedented. MHPAEA was enacted to provide better 

access to quality care for mental health and substance use conditions. With limited 

resources and costs continuing to be a major concern for purchasers, it is important that 

the requirements associated with MHPAEA are not administratively cumbersome or 

costly to the extent that the intent of the statute is defeated or undermined in its 

implementation. Our specific comments are set forth below. 

1. We strongly recommend that the application date for the IFR be extended until 

plan years beginning on or after July 1, 2011. 

The Interim Final Rules are generally applicable to plan years on or after July 1, 2010. 

The complicated parity calculations and benefit design changes required by the rule 

require significant work within the next couple of months due to the large number of 

plans that have already been negotiated and finalized for the 2011 plan year. Given the 

complexity of the regulations and the significant operational changes required for 

compliance, the applicability date of the regulations should be extended to plan years 

beginning on or after July 1, 2011. 

The additional time is essential, primarily: (a) to make and communicate plan design 

modifications as result of the specific formula applications set forth in the regulations and 

in concert with anticipated plan design changes related to health care reform (as 

discussed further below); (b) to develop and release the system changes necessary to 

support revised plan designs; (c) to develop, test and implement system functionality 

needed to support shared deductibles and out of pocket maximums for behavioral health 

carve-out business as now required per the regulations; and (d) in order to complete a 

comprehensive analysis and implement necessary administrative changes specific to the 

new nonquantitative treatment limitations such as UCR and medical management. 

Several new requirements that were recently enacted as part of the Patient Protection and 

Affordable Care Act ("PPACA") have a significant impact on the mental health parity 

rules. A delay in the applicability date of the IFR is necessary so that the agencies can 

analyze and provide guidance regarding how these provisions affect compliance with the 

IFR. Aetna is also concerned that making design changes that are necessary to fulfill the 
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parity requirements under the IFR will impact the grandfathered status of plans. Also, 

non-grandfathered plans will be required to cover preventive care services with no costsharing for plan years beginning on or after September 23, 2010. This new requirement 

will affect compliance with the IFR's substantially all and predominant tests because it 

will add to the portion of plan costs that are not subject to cost-sharing. In addition, as 

part of health care reform there is a change in the definition of the small group market 

(expanding to groups of 100). But there are open issues as to when those rules become 

effective and how the small employer exemption under the parity rules will apply in the 

small group market. These are critical issues that should be addressed in the Final Rule 

or in other guidance issued by the agencies as soon as possible. 

Additional time for planning and restructuring is needed to implement these 

unanticipated requirements. Adequate lead time will ensure that member service is not 

disrupted in any way and that all constituents are fully benefiting from the 

implementation of this Act. In the event that the applicability date of the IFR is extended, 

we ask that the agencies extend the current good faith compliance non-enforcement 

policy during such period. 

2. We request reconsideration of how to apply the parity requirements to deductibles 

and out of pocket maximums.

The application of parity to plan financial requirements, including deductibles and out of 

pocket maximums is a critical component of MHPAEA. In implementing this key 

element of full parity, we reaffirm that it is essential for plan sponsors to have the 

flexibility to design plans with either integrated or separate deductibles or maximums. 

An integrated deductible or maximum would involve a single deductible or maximum 

applicable to both the medical/surgical benefit and to the mental health substance use 

benefit. A separate deductible or maximum would involve two parallel, separately 

accumulating deductibles or maximums for the medical surgical benefit and the 

behavioral/substance use benefit. The regulations should allow separate deductibles or 

maximums to be designed to meet the parity standard, meaning that if plan costs subject 

to a deductible or maximum for medical/surgical benefits pass the substantially all and 

predominant tests, then the plan would be able to apply a separately accumulating or an 

integrated deductible or maximum for mental health/substance use disorder benefits. 

As acknowledged in the preamble to the IFR, the agencies believe MPHAEA could be 

interpreted to either permit or allow separate deductibles or out of pocket maximums by 

stating, “the statutory language does not preclude either interpretation” and “the language 

of the statute can be interpreted to support either position.” 

The IFR requirement that a single integrated deductible be used could result in higher out 

of pocket costs for some members. A single deductible under the new rule must combine 

mental health/substance use disorder services with medical services. A plan that includes 

a $250.00 annual deductible for mental health/substance use disorder services and a 

separate $250.00 annual deductible for medical benefits is not allowed. Instead, the plan 

may have a $500.00 annual deductible that includes both mental health/substance use 
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disorder services. In this example, a member who seeks only mental health or substance 

use disorder services might need to spend more money before reaching the higher 

combined deductible than if the plan included a separate but lower deductible. And 

members who don’t use mental health substance use disorder services at all will spend 

more for medical services before reaching the combined deductible. 

The IFR requirement that a single integrated deductible be used will have a very serious 

impact on implementation costs. A large number of plan sponsors carve out their 

behavioral health/substance use benefits from their medical plan and utilize separate 

carriers or administrators for the two benefits. Plan sponsors will now of course, need to 

ensure that parity is met across these benefits. An integrated deductible in this context 

will require, however, that the carriers or administrators have the necessary system 

interfaces to share and coordinate the deductible accumulator. We reaffirm our original 

estimate that this system functionality costs $750,000 for each interface. This cost 

estimate does not include resource expenditures needed for related additional manual 

processes that are also required. Alternative batch processing deemed less expensive by 

the agencies would require the same signficant expenditure of $750,000 per interface due 

to lack of a universal file layout (i.e., each carrier has their own format), program 

development, intensive integrated testing for claim data exchange and reconciliation.

 

A requirement for integrated, as opposed to separate, deductibles and out of pocket 

maximums will also have a significant impact on benefit costs and could impact the 

ability and willingness of many plan sponsors to offer mental health/substance use 

disorder benefits. 

For these reasons, Aetna requests that the agencies reconsider this IFR provision and 

permit plan sponsors to design or select plans which provide valuable mental health and 

substance use benefits, in parity with medical surgical benefits, using either integrated or 

separate deductibles and out of pocket maximums. This range of design options within 

the framework of parity is essential to encouraging mental health and substance use 

coverage and keeping such coverage affordable. 

Finally, while we think that continuing to require integrated deductibles or out of pocket 

maximums would be unnecessary, costly and problematic; if that approach is retained, it 

will be critical that a single industry file layout (format and coding) be implemented and 

additional time be provided to carriers and plan sponsors to build the interfaces necessary 

to comply. 

3. We request that the “substantially all” formula be modified to offer additional and/ 

or alternative calculations for plan designs that contain multiple types of comparable 

financial requirements in one classification. 

 

Per the IFR, a plan is prohibited from imposing a type of financial requirement on mental 

health/substance use disorder benefits if such financial requirement does not apply to 

“substantially all” medical surgical benefits in the relevant classification. Types of 

financial requirements cannot be combined and “substantially all” is defined as applying 
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to at least 2/3 of all medical/surgical benefits in the classification. Thus, if a particular 

type of financial requirement such as co-pay or coinsurance does not apply to at least 2/3 

of the medical surgical benefits in the classification, that type cannot be imposed on 

mental health/substance use disorder benefits in the classification. 

This rule is problematic because plan designs often include varying types of financial 

requirements within the outpatient classification. For example, physical therapy visits 

could be subject to a copay, home health could be subject to coinsurance, and outpatient 

surgery could be subject to both. Plans designed to have a blend of copays and 

coinsurance frequently do not pass the substantially all test because no single type of 

financial requirement applies to at least 2/3 of medical/surgical benefits. In such 

situations, compliance options include: (a) waiving any financial requirement to mental 

health/substance use disorder benefits (driving costs up), while most medical surgical 

services continue to require some member cost share; or (b) changing the plan design for 

medical/surgical (which is intended to incentivize certain behaviors with lower costsharing for specific services) so that financial requirements can be applied to mental 

health/substance use disorder benefits. Neither of these options appears to be a 

reasonable or logical outcome of the formula, nor are they consistent with the basic parity 

goal of MHPAEA. 

Using the current guidelines, the cost sharing for an outpatient mental health/substance 

use professional service (generally office visits) is impacted by cost sharing for outpatient 

medical/surgical services of a very different nature (e.g., ambulatory surgery or lab/x-ray 

services). Such services are included in testing results and prevent the “substantially all” 

threshold from being met. Therefore, in order to keep within what we believe to be the 

spirit and intent of the law, we recommend that it is most appropriate to permit additional 

classifications or sub classifications that would allow plans to compare outpatient mental 

health/substance use disorder professional services, (i.e., counseling/therapy sessions 

typically performed by a master’s level provider, psychologist or psychiatrist) to medical 

surgical professional services. Additionally, we request that the final regulations permit 

flexibility (i.e, sub classifications) with respect to all six classifications to take into 

account severity of illness and intensity of services. 

In addition to allowing more flexibility with respect to classifications, we believe there 

are alternative approaches available that could be included in the final regulations for 

purposes of determining “substantially all” for plan designs that contain multiple types of 

comparable financial requirements in one classification. For example, the guidance 

should permit an actuarial equivalence method of calculating cost sharing in a particular 

classification (e.g., if 2/3 of the benefits within a classification are subject to some form 

of cost sharing, then an actuarially equivalent mix of cost sharing, such as determining an 

equivalent copay value for benefits subject to coinsurance, or vice versa, should be 

permitted for mental health/substance use disorder benefits). Additionally, the final 

regulations should permit plans to exclude services that are provided with no cost sharing 

or with reduced cost sharing from the substantially all and predominant tests (particularly 

with regard to preventive care). We would be happy to provide more specific examples 

upon request. 
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Finally, although we believe that the language of the IFR is clear, we ask that the 

agencies confirm in the final regulations that where a specialist copay satisfies both the 

substantially all and predominant tests, the specialist copay could be applied to mental 

health/substance use benefits. In this regard, we recognize the requirement that a plan 

cannot automatically use its specialist copay for all mental health/substance use 

providers. However, where a copay applies to at least 2/3 of the medical/surgical benefits 

within a classification, and the specialist copay is the "predominant" copay amount, then 

it appears clear that the IFR would allow the use of the specialist copay for mental 

health/substance use benefits. Although the above interpretation was verbally confirmed 

during the technical assistance call held by the agencies on February 19, 20102 we 

request that it also be confirmed in the final regulations. 

4. We request that the Final Rule retain the flexibility provided under the IFR with 

respect to scope of services issues. 

MHPAEA does not limit plans and insurers’ ability to determine which mental health or 

substance use disorder conditions plans and insurers will cover. The IFR does not 

mandate that plans provide coverage for any specific types of mental health/substance use 

disorders, types of services or treatment or settings of care. 

MHPAEA defines mental health benefits and substance use disorder benefits as the 

benefits “defined under the terms of the plan.” Plans need to retain the ability to 

determine which mental health and substance use disorders will be covered in the same 

way that plans determine which physical health conditions will be covered. 

 

Additionally, MHPAEA does not mandate that a group health plan cover all possible 

treatments or treatment settings for a given mental health or substance use diagnosis, any 

more than a group health plan is required to cover all possible treatments or treatment 

settings for a specific physical diagnosis. It is essential that the Final Rule retains the 

flexibility set forth in the IFR with respect to scope of services so that plans may continue 

to exclude specific mental health/substance use disorder conditions, treatments and 

treatment settings. For example, plans should be able to exclude coverage for treatment 

settings or providers where licensure requirements are not met. 

MHPAEA prohibits group health plans from applying treatment limitations to mental 

health or substance use disorder benefits that are more restrictive than the treatment 

limitations that apply to medical surgical benefits. The law defines treatment limitations 

to include limits on the frequency of treatment, number of visits, days of coverage “or 

other similar limits on the scope or duration of treatment." 

We reaffirm that we do not believe that the intent of MHPAEA was for a specific type of 

actual treatment to fall within “scope or duration of treatment” in the same manner as 

 

2

 Regulators in attendance included Pam Hyde, SAMHSA; Richard Frank, HHS; Jim M, HHS/CMS; Amy 

Turner, DOL; Kevin Knopf, Treasury; Russell Weinheimer, Treasury. 
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frequency of treatment, number of visits, days of coverage or to compare type of 

treatment with frequency of treatment, number of visits and days of coverage. 

The final regulations should make clear that in administering MHPAEA, an employer 

may define coverage with respect to particular diagnoses or groups of diagnoses, types of 

services and settings of care. This interpretation is grounded in Aetna’s significant 

involvement in discussions with the drafters regarding this issue during the evolution of 

the final bill and is supported by documentation from the Senate Committee Report 

regarding the application of the parity requirements as follows: 

The bill would not require plans to offer mental health benefits nor would it 

require that those plans cover all types of mental health services or ailments if the 

plan covered any mental health services or ailments. 

See Sen. Rep. No. 110-53, 110th Cong., 1st Session (2007) at p. 7. 

Because of significant cost and administration implications not considered in the cost 

projections for MHPAEA, a requirement to include all diagnoses, treatments or treatment 

settings could force employers to transition to lower coverage type plans resulting in 

increased costs for members or cause employers to ultimately drop mental health and 

substance use disorder coverage entirely. These outcomes are in direct opposition to the 

purpose and spirit of MHPAEA in increasing access to quality mental health and 

substance use disorder treatment. 

The final regulations should retain the flexibility as to scope as set forth in the IFR as to 

the conditions, treatments and treatment settings that will be covered by plans. 

5. We recommend the removal of the requirements in the Interim Final Rule with 

respect to “nonquantitative” treatment limitations. 

The IFR applies parity to nonquantitative treatment limitations which include, but are not 

limited to, medical management standards, provider network standards, and methods for 

determining usual reasonable and customary charges. We do not believe that the intent 

of the law was for parity to apply to nonquantitative treatment limitations and we strongly 

request that this aspect of the IFR be dropped from the Final Rule. 

Our view is based on our first hand participation in the enactment of the legislation and is 

supported by MHPAEA's legislative history. The House Energy and Commerce 

Committee Report makes this clear: 

 

In addition, this requirement does not change the current ability of an insurer or 

provider to determine medically necessary and appropriate care and treatment for 

their patients. It merely ensures that patients are not denied mental health 

coverage based on the specific disorder they have. For example a person cannot 

be denied coverage by their health plan merely because they have autism. A plan 
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may determine, however, whether a treatment is medically necessary or 

appropriate for a given person at a given time based on their individual situation. 

H. Rep 110-374, Part 3, 110th Cong., 2nd Session (2008) at p. 33. 

The requirements associated with parity application to nonquantitative treatment 

limitations are ambiguous, leaving interpretation and administration highly challenging. 

The IFR states that: 

A group health plan may not impose a nonquantitative treatment limitation with 

respect to mental health or substance use disorder benefits in any classification 

unless under the terms of the plan as written and in operation, any processes, 

strategies, evidentiary standards or other factors used in applying the 

nonquantitative treatment limitation to mental health or substance use disorder 

benefits in the classification are comparable to and applied no more stringently 

than the processes, strategies, evidentiary standards or other factors used in 

applying the limitation with respect to medical surgical benefits in the 

classification except to the extent that recognized clinically appropriate standards 

of care may permit a difference. 

 

Practical application of this language is exceedingly challenging without clarification of 

the phrase “no more stringently.” The language included in the IFR furthermore prompts 

other key questions. For example, do plans have the discretion to manage mental health 

substance use disorder benefits on the basis of a clinically accepted rationale if less than 

all medical surgical benefits in a specific classification are managed? Can plans assume 

that a specific level of care management (i.e., concurrent review), is permissible for select 

mental health substance use disorder conditions meeting specific criteria even if that level 

of care management is not conducted for most medical surgical care if the mental health 

substance use disorder criteria for case selection is based on recognized clinically 

appropriate standards of care as referenced in the language of the IFR? 

Mental health and substance use benefits and medical surgical benefits may use 

utilization management selectively to manage cases or types of cases that are high 

volume, high unit cost, include high discretionary factors, and/or are highly variable, but 

also are an integral component of measuring the effectiveness of treatment. These 

processes may be applied differently, however, based on a specific condition and/or 

service and how it differs in a psychiatric context versus a medical surgical one. 

For example, in the case of a member with a diagnosis of bipolar disorder, it may be in 

that member’s best interest for the plan to do a concurrent review when that member is 

receiving ineffective or inappropriate treatment. In this case, the plan’s failure to 

intervene and recommend an evidence based treatment approach may needlessly prolong 

the member’s suffering or risk further deterioration. When treatment deviates 

significantly from accepted standards and there is an alternate approach likely to result in 

a more favorable outcome, managing that member’s benefits to facilitate that positive 

outcome is indicated. Such course of action seems reasonable and appropriate, even in 
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situations where there is no equivalent protocol to manage the medical condition. 

Because mental health/substance use disorder conditions and medical conditions differ in 

cause, treatment course and prognosis, equivalent processes and protocols for managing 

these illnesses may not exist in all situations. However, this fact should not diminish a 

plan’s responsibility to use tools and protocols available to manage benefits, control costs 

and effect a better treatment outcome for their members. 

To further illustrate the impracticality of comparing behavioral health conditions to 

medical conditions, precertification might be required for psychological testing related to 

behavioral health conditions and not for medical diagnoses. The rationale for 

management of the mental health/substance use conditions is due to cost and potential for 

misuse of the benefit. Questions about differential diagnosis under the mental health 

benefit can often be answered by assessing symptoms and impairment during the 

diagnostic interview. Therefore, the psychological testing may not be necessary. 

However, psychological testing or neuropsychological testing may be an essential tool in 

making a differential diagnosis among medical conditions. Testing as part of establishing 

a differential diagnostic assessment would, for example, be done appropriately for 

medical conditions such as strokes, dementia, or brain injury. Cost of the test battery for 

these conditions is low in comparison to the cost of the total episode of care. For mental 

health substance use disorders there is much more potential for misuse of the benefit 

undermining availability and prioritization of resources. Additionally, many testing 

requests for mental health issues are for testing of learning disabilities because of long 

waits for testing in school settings. Many plans exclude coverage of educational services, 

remedial teaching, and learning differences because such services are not considered to 

be related to an illness or injury. 

In the IFR, the agencies expressed support for managed behavioral health care in 

containing costs including additional costs incurred as a result of parity, yet the potential 

impact of the nonquantitative treatment limitations rule runs counter to that position. A 

New England Journal of Medicine Study quoted in the IFR concluded that these fears 

were unfounded and “that parity of coverage of mental health and substance abuse 

services, when coupled with management of care is feasible and can accomplish its 

objectives of greater fairness and improved insurance protection without adverse 

consequences for health care costs." It is feared, however, that if nonquantitative 

treatment limitations, including those for medical management, are part of the Final Rule, 

those best qualified to treat, manage and coordinate care for those with mental 

health/substance use disorder conditions will expend inordinate time and resources 

attempting to force fit customized mental health/substance use disorder practices into a 

model(s) designed exclusively for medical surgical conditions and in doing so disservice 

the very constituents this law was designed to protect. 

Again, we respectfully request that the nonquantitative treatment limit rule be deleted 

from the Final Regulation. If this aspect of the IFR is not dropped, we request that it be 

substantially narrowed. In particular, we believe that the inclusion of parity for provider 

reimbursement, URC and provider network admission are in no way similar to the 

"treatment limitations" included in MHPAEA's statutory language and that the parity 
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requirements for providers be eliminated. Any rule with respect to medical management 

should be substantially narrowed so that only differences in medical management 

programs that are clearly and objectively discriminatory violate the nonquantitative 

treatment limit rule (e.g., penalties for failing to follow preauthorization are different 

between medical/surgical and mental health/substance use benefits). 

* * * 

As presented above, we believe that there are provisions of the IFR that are highly 

complex and that expand the scope of MHPAEA as set forth in the statute. The primary 

examples are the “substantially all” formula and the inclusion of nonquantitative 

treatment limitations. We also believe that the IFR must be reviewed in light of the 

subsequent adoption of the PPACA. Consequently, we recommend that the IFR be 

subject to prompt additional regulatory review and public input. The significant 

confusion and administrative obstacles inherent in any effort to comply with this IFR 

warrants a re-evaluation by all stakeholders. Requiring extraordinarily aggressive 

timelines for compliance mandated in light of the significant delay in the release of the 

IFR runs counter to the balanced approach and collaborative spirit that contributed to the 

passage of the Act. 

Aetna is pleased to have the opportunity to provide comments regarding the IFR. Thank 

you for considering our comments. Should you have any questions, please feel free to 

contact Flora Vivaldo at vivaldof@aetna.com (310) 827-0515. 

Sincerely, 

Louise Murphy 

Head of Behavioral Health 

On behalf of the Aetna MHPAEA Task Force