Aetna RFI Resp CB Final 052809 Confidential Page 1 of 8 

May 28, 2009 

Submitted via the Federal eRulemaking Portal: http://www.regulations.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: Request for Information Regarding the Paul Wellstone and Pete Domenici Mental 

Health Parity and Addiction Equity Act of 2008 

Dear Sir or Madame: 

Aetna1

 welcomes the opportunity to submit this response to the request for information 

regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 (“MHPAEA”). The request was published by the Departments of 

Labor, Health and Human Services and the Treasury (the Departments) in the Federal 

Register on April 28, 2009. 

It is understood that MHPAEA requires group health plans of 50 or more employees that 

provide both medical and surgical benefits and mental health or substance abuse benefits 

to ensure that financial requirements and treatment limitations are the same for both 

physical and mental illness. Specifically, if the employer offers mental health and 

 

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. 
Aetna RFI Resp CB Final 052809 Confidential Page 2 of 8 

substance use benefits, MHPAEA prohibits imposing more restrictive financial 

requirement (such as co-pays, deductibles, out of pocket limits) or treatment limitations 

(such as day or visit limits) on mental health or substance use benefits than those applied 

to medical or surgical benefits. MHPAEA does not dictate whether parity is achieved by 

reducing medical benefits or increasing mental health benefits. In addition, if a plan 

offers out-of-network coverage for medical or surgical benefits, it must provide 

comparable out of network coverage for mental health and substance use disorder 

benefits. 

Aetna’s Background in the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity Act of 2008 (“MHPAEA”). 

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, 

including medical, pharmacy, dental, behavioral health, group life, long-term care and 

disability plans and medical management capabilities. 

Aetna provides benefits through employers in all 50 states. Our membership includes 

19.066 million medical members, 14.536 million dental members and 11.240 million 

pharmacy members. Aetna customers include employer groups, individuals, college 

students, part-time and hourly workers, health plans and government-sponsored plans. 

Because MHPAEA and the regulations interpreting the statute will have a broad and 

significant impact on our constituents, we look forward to working constructively and 

collaboratively with the Departments in contributing to the development of regulations 

that can be both afforded and administered. 

Aetna’s Role in the Enactment of the Statute 

Aetna has been at the forefront of the enactment of MHPAEA. Our organization was a 

leader in supporting Senate Bill 558 in 2004. We then actively endorsed the SenateHouse compromise agreed to in June of 2008. Between June and October of last year we 

were fully and consistently engaged in the enactment of the final legislation. 

Aetna’s General Response to the MHPAEA as it is Understood 

Our support of MHPAEA is rooted in our basic belief that it affords the long overdue 

right to non discriminatory mental health and substance use disorder coverage. The law is 

the socially responsible response to an overwhelming body of scientific evidence 

demonstrating that mental illnesses represent legitimate diseases of the brain. The 

passage of MHPAEA is an acknowledgement that illness of the brain should be treated 

like any other illness. 

We believe that this law will promote timely and appropriate care for mental health, 

essential to the overall health of our members. There is widespread recognition and 
Aetna RFI Resp CB Final 052809 Confidential Page 3 of 8 

research that supports the fact that untreated mental health conditions are key drivers of 

medical cost. When employees and their dependents can receive timely, appropriate, and 

evidenced- based behavioral healthcare, patient outcomes including overall health and 

productivity are shown to improve, and are also shown to lead lower overall plan sponsor 

costs.2

Aetna is also embracing MHPEA because our commitment to innovation, quality of care 

and our demonstrated integration capabilities are notable differentiators that will enable 

our constituents to optimize MHPAEA’s opportunities. The recognition that mental 

health benefits should be the same as physical benefits coupled with the fact that mental 

illness has an impact on physical health and vice versa strongly supports Aetna’s 

approach to the value of integration of care and our holistic approach to patient 

management. We believe that MHPAEA is likely to improve health outcomes through 

integrated medical and behavioral benefits and services. Such health improvements can 

lead not only to lower healthcare costs but to improved productivity among employees. 

Finally, we applaud MHPAEA as a landmark decision also because “By bringing 

together all stakeholders, by encouraging the exchange of ideas, by pushing those 

involved to understand real-world consequences of legislative action, and by finally 

reaching compromise, this effort provides an excellent roadmap of how well meaning 

individuals and groups can accomplish meaningful healthcare reform.” 3

Because we have been so invested in the enactment of this law for the reasons noted, it 

follows that we would be equally invested in how it is implemented. 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. 

Clarification of Terms and Provisions 

The Departments have asked whether terms or provisions of the MHPAEA require 

clarification in order to facilitate compliance. II B 2. What terms or provisions require 

additional clarification to facilitate compliance? What specific clarifications would be 

helpful? Aetna has identified the terms and provisions delineated below as those critically 

in need of clarification. 

1. Flexibility on Design of Financial Requirements 

 

2

 Kovach PhD Judith “The Impact of Inadequate Mental Health Care in Michigan” CSG. 24 June 2008. 

Council of State Governments 

3

 Williams, Ronald and Un, Hyong, MD; The Hill, September 28, 2008
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The application of parity to plan financial requirements, including deductibles and out of 

pocket maximums is a critical component of MHPAEA. It is essential that, in 

implementing this key element of full parity, plan sponsors have the flexibility to design 

plans with either integrated or separate deductibles, maximums and limits. An integrated 

deductible or limit would involve a single deductible, maximum or limit applicable to 

both the medical/surgical benefit and to the mental health substance abuse benefit. A 

separate deductible, maximum or limit would involve two parallel deductible or limits for 

the medical surgical benefit and the behavioral/substance abuse benefit. Separate 

deductibles, maximums or limits would be designed to meet the parity standard, meaning 

that mental health/substance abuse financial requirements would be either equal to or 

more generous than those applicable to comparable medical/surgical benefits. 

 

A requirement that a single integrated deductible be used would have a very serious 

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

behavioral health/substance abuse benefit from their medical plan and utilize separate 

carriers or administrators for the two benefits. Plan sponsors taking this approach will, of 

course, need to ensure that parity is met across these benefits. An integrated deductible 

in this context would require, however, that the carriers or administrators have the 

necessary system interfaces to share and coordinate the deductible accumulator, which 

could cost as much as $750,000 for each interface. The number of interfaces required 

will depend on the customer base of a given carrier, but for a typical carrier who needs to 

interface with 40-50 other carriers or TPAs in the market, the cost could be $30 million. 

 

A requirement for separate, as opposed to integrated, limits would also have a significant 

impact on benefits costs and could impact the ability and willingness of many plan 

sponsors to offer mental health/substance abuse benefits. 

 

For this reason, Aetna proposes that the regulations allow plan sponsors to design or 

select plans which provide valuable mental health and substance abuse benefits, in parity 

with medical surgical benefits, using either integrated or separate deductibles and limits. 

This range of design options within the framework of parity is essential to encouraging 

mental health and substance abuse coverage and keeping such coverage affordable. 

Finally, while we think that requiring integrated accumulators would be unnecessary, 

costly and problematic; if that approach is taken it will be critical that a single industry 

file layout (format and coding) be implemented. 

2. Management of the Benefit- The regulations should confirm that MHPAEA does 

not require parity in the management of the benefits. 

A close examination of the language of the law confirms that it intended to allow for 

plans to manage the mental health and substance use disorder benefits. The law amends 

the construction clause in Section 712 of ERISA which contains language which states 

“Nothing in this section shall be construed ....” The amendment made by MHPAEA adds 

“in the case of a group health plan (or health insurance coverage offered in connection 

with such a plan) that provides mental health or substance use disorder benefits as 
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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)”. The reasonable interpretation 

of this is that the only terms and conditions to which the law applies are the financial 

requirements and treatment limitations and out of network parity requirements defined by 

MHPAEA. 

We believe that the location of this provision in the law was deliberate and specifically 

intended to fall outside of the scope of the parity requirement. The law was worded so 

that the benefits would not be required, with respect to other terms and conditions of the 

plan other than financial requirements, treatment limitations and out of network coverage 

requirements, to be managed in the same way as the medical and surgical benefits. This 

recognizes the fact that there are significant clinical differences between 1) mental health 

and substance use disorders and 2) medical conditions that would make parity in the 

practical clinical management of these benefits extraordinarily challenging and 

significantly cost prohibitive. 

These differences include but are not limited to the practical reality that mental health and 

substance use disorder diagnoses and courses of treatment are not as clear and objectively 

defined as most medical surgical diagnoses and treatments. Also, treatment outcomes in 

mental health and substance use disorders often rely on patient self reporting at times 

promoting services beyond those that are medically necessary and requiring a different 

type of clinical management. 

The MHPAEA has been applauded by diverse and multiple stakeholders to date because 

it does not limit plans’ ability to use care coordination and management tools that are 

advancing high-quality, evidence based mental health and substance use disorder care. 

Utilization review, concurrent review, case management, application of medical necessity 

criteria, clinical practice guidelines and discharge planning are among the tools needed to 

ensure quality and to control costs. These tools have proven successful in controlling 

excessive behavioral healthcare spending that existed many years ago. The utilization 

management practices developed by managed behavioral healthcare organizations have 

helped establish a set of working guidelines that continue to evolve. “These practices 

show how behavioral disorders can be covered without runaway costs and limitless 

treatment horizons”.4

 These are, incidentally some of the tools currently used in the 

Federal Employees Health Benefit Plan used by Congress. Management of the benefit is 

crucial in cost containment. It is important to note that the Congressional Budget Office 

(CBO) took into account the use of managed care arrangements in the analysis of 

MHPAEA. Without the ability to manage care the costs will increase significantly over 

the estimates done by the CBO. 

The federal government has recognized the need for different management strategies for 

medical and surgical benefits than those for mental health and substance use disorder 

benefits. The Department of Defense TRICARE program requires pre-certification and 

concurrent review for non-emergency admissions to psychiatric and residential treatment 

facilities and for outpatient visits that go beyond a pre-determined number. It is our 

 

4

 Melek, S; Milliman White Paper, May 2009 
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understanding that TRICARE does not uniformly apply the same requirements across 

medical and surgical services. Also, the Office of Personnel Management ( OPM) has 

recognized in FEHBP’s implementation of the MHPAEA that plans may manage care 

through referrals, prior authorization, treatment plans, pre-certification of inpatient 

services, concurrent review, discharge planning, case management, retrospective review 

and disease management programs” 

Management of benefit delivery is not a financial term or a treatment limitation and 

therefore should not be within the scope of the parity requirement. Because of the critical 

cost and administration implications inherent in compromising or complicating current 

medical management of mental health substance use disorders, the regulations should 

make clear that MHPAEA does allow for clinical management of mental health and 

substance use disorder benefits and does not require parity in the medical management of 

the benefits. 

3. The regulations should confirm that group health plans may continue to 

determine plan design specific to covered diagnoses and treatment. 

of the MHPAEA does not limit the employer’s ability to determine which mental health 

or substance use disorder conditions the plan will cover and we believe this was the 

specific intent of the drafters of the law. This interpretation is grounded in Aetna’s 

significant involvement in discussions with the drafters regarding this issue during the 

evolution of the final bill. MHPAEA defines mental health benefits and substance used 

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. The regulations should clarify that in administering MHPAEA, an employer 

may define coverage with respect to particular diagnoses or groups of diagnoses. 

In the same way, we believe that MHPAEA does not mandate that a group health plan 

cover all possible treatment for a given mental health substance use diagnosis, any more 

than a group health plan is required to cover all possible treatments for a specific physical 

diagnosis. Group health plans can currently exclude certain treatments for medical 

conditions. MHPAEA prohibits group health plans from applying treatment limitations 

to mental/substance use 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 do not believe that the intent of 

MHPAEA was for type of actual treatment type to fall within “scope or duration of 

treatment” in the same manner as frequency of treatment, number of visits, days of 

coverage or to compare similarly with frequency of treatment, number of visits and days 

of coverage. 

If plans are required to cover all possible treatment for a particular diagnosis, employers 

may simply exclude that diagnosis from coverage entirely. Because of significant cost 

and administration implications, a requirement to include all diagnoses and or treatments 
Aetna RFI Resp CB Final 052809 Confidential Page 7 of 8 

could force employers to drop mental health and substance use disorder coverage 

entirely. These outcomes are in direct opposition to the purpose and spirit of MHPAEA 

which we believe was to increase access to quality mental health and substance use 

treatment. The regulations should confirm that determination of plan design specific to 

covered diagnoses and treatment will continue to be a purchaser decision. 

MHPAEA now, in addition to state laws, NCQA and other regulatory bodies all require 

transparency regarding disclosure of medical necessity and denial reasons for protection 

and accountability related to sound clinical decisions on coverage. The regulations should 

specify that MHPAEA does not prohibit a group health plan from excluding certain types 

of treatment for a particular mental health condition or substance use disorder just as the 

group health plan may exclude certain treatments for medical conditions. 

4. The regulations should clarify the application of MHPAEA to Employee 

Assistance Programs and confirm that the law does not apply. If the law does 

apply to EAP as gatekeeper prior to accessing mental health substance use 

disorder benefits, this provision should be clarified. 

MHPAEA applies to group health plans that provide both medical and surgical benefits 

and mental health or substance use disorder benefits. EAPs do not provide medical 

surgical benefits. Also, EAPs are often sold as separate plans and are intended to provide 

short term mental health and substance use disorder benefits for assessment and 

evaluation leading to appropriate referrals for further treatment when necessary. 

EAPs can play a significant role in achieving healthier outcomes while containing costs 

and interrupting that role would counter the purpose of the law. An EAP which serves not 

as a “gatekeeper” but as a 24/7 “welcoming front door” to the BH continuum enhances 

member engagement and enables its clinicians to assess and address issues early, before 

they become more serious. The EAP can be instrumental in helping members make 

optimal use of their mental health benefits. While not a substitute for mental health 

benefits, EAPs may help ease members into the BH benefits continuum and resolve 

member issues before they become more extensive. 

5. Effective Date 

It is our understanding that the regulations for MHPAEA are required to be promulgated 

by October 3, 2009. It is important for the Departments to understand that an extensive 

window of time is required by most employers, especially large employers to implement 

any plan designs or plan design changes. Most employers finalize benefit designs mid 

year for the next calendar year. The multitude of essential administrative tasks include 

analysis and pricing, customer and other business partner discussion and negotiations, 

communication and planning with third party administrators, system programming, 

creation and modification of enrollment materials, and the development and 

implementation of communication and education programs for enrollees including 
Aetna RFI Resp CB Final 052809 Confidential Page 8 of 8 

Internet based programs. As such, the timing for the publication of the regulations will 

not meet the preparation timing needs of most plan sponsors and will jeopardize effective 

and timely communication to members needed for them to make informed plan 

enrollment choices. 

Therefore, we are requesting that if a plan implements a benefit design based on good 

faith interpretation of MHPAEA, without the benefit of the regulations at the time of 

filing of the plan, the plan should be exempt from any enforcement action and monetary 

penalties if it is later determined that the plan is not in full compliance with the law as 

clarified in the regulations. Also- any further changes required should be deferred until 

the following year as further plan modifications during the same plan year will be cost 

prohibitive, inefficient and confusing to members. We would recommend that regulations 

promulgated under the MHPAEA not be effective earlier than 12 months after they are 

published in final form. 

Aetna is pleased to have the opportunity to respond to this Request for Information. 

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