Centers for Medicare and Medicaid Services
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We hope that this comment is helpful to those who have the difficult task of crafting
regulations to implement this landmark piece of legislation.

Sincerely yours,
Gleitle, #&L-~~

CHRISTINA L. GOE
General Counsel


COMMISSIONER OF SECURITIES & INSURANCE

MONICA J. LINDEEN NY OFFICE OF THE MONTANA
COMMISSIONER | STATE AUDITOR
May 3, 2010

Centers for Medicare and Medicaid Services
Department Health and Human Services
Attn: CMS-4140-IFC, Mail Stop C4-26-05
7500 Security Blvd

Baltimore, MD 21244-1850

DELIVERED BY EMAIL ATTACHMENT

RE: Comments on Interim Final Rules under the Paul Wellstone and Pete Domenici
Mental Health Parity and Addiction Equity Act of 2008

Dear CMS Staff:

Thank you for providing this opportunity to comment on the above-referenced rules.
We appreciate the work these rules represent on the part of many.

The Commissioner of Securities and Insurance, Office of the Montana State
Auditor, offers the following comments on the Interim Final Rules Under the
Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity
Act of 2008. This comment focuses on the need for a more detailed definition of
inpatient and outpatient care for addiction disorders.

The preamble to the federal interim final rules states: “These regulations do not define
inpatient, outpatient, or emergency care. These terms are subject to plan design and
their meanings may differ from plan to plan. Additionally, State health insurance laws
may define these terms.” However, the preamble also states: “another potential benefit
associated with MHPAEA and these regulations is that use of mental health and
substance use disorder benefits could improve. Untreated or under treated mental health
conditions and substance use disorders are detrimental to individuals and the entire
economy. Day and visit limits can interfere with appropriate treatment thereby reducing
the impact of care for workers seeking treatment.” The preamble goes on for several
pages reiterating that eliminating day and visit limits will improve the health of workers
and the economy.

Phone: 1-800-3:
Securities Fax: (406) 444-
840 Helena Ave., Helena }

32-6148 / (406) 444-2040 / Main Fax: (406) 444-3497
58 / PHS Fax: (406) 444-1980 / Legal Fax: (406) 444-3499
59601 Website: www.csi.mt.gov E-Mail: csi@mt.gov



Centers for Medicare and Medicaid Services
May 3, 2010
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However, the lack of any kind of a definition of “inpatient” and “outpatient” could have the
effect of requiring no payment at all for inpatient or even outpatient treatment for addiction
disorders. The Montana definition referenced above has been in place since 1999. Even
so, this department continues to observe through consumer complaints and policy form
review that health insurance issuers sometimes deny any kind of residential treatment for
addiction disorders, even if treatment has been identified as “medically monitored” or
“clinically managed,” unless the department intervenes to enforce the statute.

“Inpatient” treatment for mental health and addiction disorders is often provided in a
facility that is separate from a traditional acute-care hospital. These facilities are
licensed by state health departments to provide different levels of care. Many acute
care hospitals offer medical detoxification treatment (medically managed), but do not
offer all types of “inpatient” treatment that is medically indicated for addiction
disorders. That treatment is often identified as “high-intensity residential.” Medically
managed and clinically monitored residential treatment provided in acute care
hospitals, if available, would be much more expensive.

The Montana statute, which requires a limited benefit for chemical dependency
treatment, provides as follows:

Mont. Code Ann., § 33-22-705 Inpatient and outpatient benefits.

(1) "Inpatient benefits" are benefits payable for charges made by a hospital or
freestanding inpatient facility for the necessary care and treatment of mental illness,
alcoholism, or drug addiction furnished to a covered person while confined as an
inpatient and, with respect to major medical policies or contracts, also includes those
benefits payable for charges made by a physician for the necessary care and treatment
of mental illness, alcoholism, or drug addiction furnished to a covered person while
confined as an inpatient. Care and treatment of alcoholism or drug addiction in a
freestanding inpatient facility must be in a chemical dependency treatment center that is
approved by the department of public health and human services under 53-24-208.
Inpatient benefits include payment for medically monitored and medically
managed intensive inpatient services and clinically managed high-intensity
residential services.

(2) "Outpatient benefits" are benefits payable for:

(a) reasonable charges made by a hospital for the necessary care and treatment of
mental illness, alcoholism, or drug addiction furnished to a covered person while not
confined as an inpatient;

(b) reasonable charges for services rendered or prescribed by a physician for the
necessary care and treatment for mental illness, alcoholism, or drug addiction furnished
to a covered person while not confined as an inpatient;


Centers for Medicare and Medicaid Services
May 3, 2010
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(c) reasonable charges made by a mental health or chemical dependency treatment
center for the necessary care and treatment of a covered person provided in the
treatment center. The chemical dependency treatment center must be approved by the
department of public health and human services under 53-24-208.

(d) reasonable charges for services rendered by a licensed psychiatrist, psychologist,
licensed professional counselor, licensed social worker, or addiction counselor licensed
by the department of labor and industry under Title 37, chapter 35. (Emphasis added.)

The Montana definition of “inpatient” includes terms that directly relate to certain
American Society of Addiction Medicine [ASAM] levels of care: medically managed
(ASAM level IV) and medically monitored intensive inpatient treatment (ASAM level III.7)
and clinically managed high intensity residential treatment (ASAM level III.5) and also
refers to care provided in facilities that are specifically licensed by the state department of
health and human services to offer that level of care. ASAM is the nationally recognized
standard for medical professionals diagnosing treatment for addiction disorders. Certain
freestanding facilities are licensed by the state health department to provide residential
treatment that is medically managed (ASAM level III.7) and clinically managed high-
intensity residential treatment (ASAM level III.5).

If the federal rules do not define inpatient and outpatient more specifically, the end result
may be that many health plans will deny access to the most widely prescribed and
commonly accepted treatment for addiction disorders. We respectfully suggest that the
drafters of these regulations determine whether or not that result is contrary to
congressional intent and the goals expressed in the preamble. A definition of “inpatient”
residential treatment can be limited to (1) certain diagnosis levels as specified in ASAM
and (2) treatment provided in state licensed facilities authorized to offer that type of
treatment. In addition, every claim that is made for addiction disorder residential treatment
can be subjected to a preauthorization requirement and a medical necessity
determination (like other physical illness generally). As stated above, residential
treatment provided in a fully licensed, freestanding facility can be more cost effective than
treatment delivered in an acute care hospital setting.

Our department has not surveyed the states to determine how their inpatient definitions
compare to ours. However, if these regulations provide a uniform definition for inpatient
and outpatient care, the federal government has the opportunity to continue to set the
standard for access to this type of care by defining a minimum standard that the states
could follow. Therefore, we offer the Montana definitions as a workable example of
statutory language, and our experiences with how insurers cover or fail to cover these
types of claims as an example of how the definition of inpatient and outpatient affects
access to care.