Docket: EBSA-2009-0010 

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

Equity Act of 2008 

Comment On: EBSA-2009-0010-0001 

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

Equity Act of 2008 

Document: EBSA-2009-0010-DRAFT-0158 

Comment on FR Doc # E9-9629 

Submitter Information 

Name: Pat Bridgman 

Address: 

Columbus, OH, 

Organization: Ohio Council of Behavioral Health & Family Services Providers 

General Comment 

May 27, 2009 

Office of Health Plan Standards and Compliance Assistance 

Employee Benefits Security Administration 

Room N-5653 

U.S. Department of Labor, 200 Constitution Avenue, NW 

Washington, DC 20210 

Attention: MHPAEA Comments Regarding Federal Register Notice April 28, 2009 

The Ohio Council of Behavioral health & Family Services Providers welcomes the 

opportunity to respond to your “Request for Information” on The Paul Wellstone 

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

(MHPAEA). The Ohio Council is a full service trade association that represents 

over 180 non-profit addiction treatment, mental health and family service providers 

in Ohio. 

Enacted on October 3, 2008 the MHPAEA aims to ensure parity between mental 

health and substance use disorders (MH/SU) and medical/surgical benefits in 

PUBLIC SUBMISSION 

As of: May 27, 2009 

Received: May 27, 2009 

Status: Pending_Post 

Tracking No. 809b9255 

Comments Due: May 28, 2009

Submission Type: Web
group health plans that offer coverage for both. MHPAEA amends the Employee 

Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act 

(PHS Act), and the Internal Revenue Code of 1986 (Code) to create new 

requirements and amend several of the existing group market mental health parity 

provisions. Enactment of MHPAEA followed years of consideration of this issue 

by Congress, and a long history of documented problems with MH/SU coverage 

affecting millions of individuals and families. 

In Network Access: Reducing Cost-Shifting to Consumers 

Provider credentialing and network characteristics affect cost-sharing and timely 

access to the appropriate type or scope of service. Restrictive provider network 

designs often are used to help manage risk for adverse selection but they also 

increase consumer cost-sharing for out-of-network services. Given that the intent 

of MHPAEA was to protect consumers from unequal access, cost-sharing, and 

scope of treatment, the MHPAEA implementing regulations should include 

guidance to health plans on how to ensure in-network access to mental health and 

addiction services in addition to addressing other critical issues of out of network 

care and medical management of the benefit. We recommend that the regulations 

address the following: 

 Require that applicable health plans enroll “essential community 

providers” in their network in order to assure access for high-risk or special needs 

clients/patients. By definition, this would include behavioral health providers who 

are trained, licensed or credentialed to serve the needs of individuals with serious 

mental illness and addiction disorders. Adoption of this concept would ensure that 

behavioral health providers would be included in the network offered by a health 

plan. 

 Provide guidance to plans on how to conduct ample outreach and 

education to consumers/patients and their families to educate them about the 

availability of mental health and addiction providers in the provider network. 

Individuals must have access to accurate provider network information in order to 

avoid additional out-of network cost-sharing that may occur because in-network 

providers are not accessible or available. 

 Ensure that there are standards that require networks to have sufficient 

enrolled, participating providers to assure access to services equal to other health 

services. Based on our experience, we are especially concerned that providers 

may be listed in a network, but in reality are not accepting new patients, an 

obvious contradiction. The standards should be the same standards as primary 

care in terms of wait time for appointments, travel distance or travel time. Access 

to specialized services should have at least the same geo-access standards as 

would be applied in the local service area to hospital/inpatient care for medicalsurgical. Wait time for appointments should be specified in hours for emergency, 

crisis, or urgent care and days for routine outpatient. For example, for geo-access 

standards, Minnesota requires 30 minutes or 30 miles for outpatient mental health 

(same as primary care); 60 minutes or 60 miles for hospital. 

 Provider competencies and scope of practice of enrolled providers and 
treatment programs should match the benefit design. Restrictions on the type of 

MH/SU providers and services included in the network commonly limit access and 

increase consumer cost-sharing unequal to what other health services. To cover a 

type of treatment, but not enroll providers would be illogical and inconsistent with 

the purpose of the MHPAEA. 

“Financial Requirement'' and Treatment Limitations on Benefits 

If a health plan covers mental health and addiction services, the MHPAEA law 

prohibits “limitations on the frequency of treatment, number of visits or days of 

coverage, or other similar limits on the duration or scope of treatment” under the 

plan that are more restrictive than the predominant limitations applied to 

substantially all the medical-surgical benefits. In addition, the Act stipulates that 

there must be “no separate treatment limitations that are applicable only with 

respect to MH/SUD benefits.” For example, if a plan offers a full continuum of 

benefits under medical/surgical benefits and only one or two services, such as 

detoxification and outpatient services, for alcohol and other drug treatment, under 

the MH/SUD benefit, the plan will likely not be in compliance with the parity 

requirements in this Act. It is important for the regulations to emphasize those 

limitations which have the effect of shifting more financial risk or responsibility to 

the patient than for medical surgical services will violate the Act. The MHPAEA 

regulations should articulate that limitations of services have to meet 

the “requirements of the Act” i.e., should prohibit restrictive limitations on scope of 

treatment that has the effect of shifting risk to the consumer or to secondary 

coverage. 

Ohio Council members have identified a range of treatment limitations often used 

to deny or make care more difficult to access, including: limits on yearly sessions 

and/or requiring more paperwork after a certain number of sessions; requiring 

providers to be in-network (on their panel) for coverage/reimbursement, the 

practical effect of which is to force chronic patients to choose another provider 

leading to lack of continuity of care and doctor/patient relationship; requiring priorauthorizations for out of network services that are rarely, if ever approved; and 

medical necessity criteria that effectively restrict appropriate and timely care. In 

addition, the following are specific examples of practices that often result in 

limitations in MH/SU care: 

- Annual and lifetime caps 

- Deductibles 

- Coinsurance 

- Out-of-pocket expenses 

- Limits on the frequency of treatment, number of visits, and days of coverage 

- Utilization review 

- Coverage based on completing assessment/review with exceedingly short time 

frames (as little as an hour) or in face to face assessments in the state of the 

plans’ corporate headquarters 

- Pre-authorization practices 

- Medical necessity and appropriateness criteria, including ever-changing criteria 

lacking clear definitions for specific levels of care such as “inpatient,” “rehab” 

or “residential” 
- Coverage requirements based on patient completing an entire course of 

treatment 

- “Fail first” policies such as the patient has to fail 1 – 2 times at outpatient 

treatment within the last year to be eligible to use detoxification or residential 

benefits 

- Utilization review being conducted by professionals with no training in mental 

health or addiction 

- Exclusion of certain levels of care like residential treatment or partial 

hospitalization (in or out of network) 

- Review of treatment services as to whether or not services are evidence-based 

- Review of treatment as to whether or not services are experimental 

- Review of treatment as to whether or not services are cost effective 

- Fee schedules that do not enlist an adequate supply of providers to assure 

access 

- Limit on specific providers or geographic licensure requirements in the state of 

the plan’s corporate headquarters 

- Preferred provider networks (including elimination of providers from network if 

they allow a plan participant to self pay for care deemed “not medically necessary” 

by plan) 

- Prohibiting plan coverage for eating disorders 

- Prohibiting plan coverage for MH/SUD services required due to court order 

Scope of Treatment 

While frequency, duration or number of visits or days of coverage can be 

objectively measured, what is meant by “scope of treatment” will require more 

definition in the regulations. The regulations should provide guidance and 

clarification on the types of covered treatment and how other services whether new 

or long established become accepted. It is the intent of the MHPAEA that the 

scope of services offered under the mental health and addiction benefit are 

consistent with the level applied to substantially all medical-surgical benefits. 

Although “services” are referenced throughout the statute, additional guidance is 

necessary to ensure that the covered treatment and services are of sufficient type, 

duration, frequency, and intensity to “correct or ameliorate” the episode of illness 

for the covered conditions. 

The regulations should articulate that the covered services and level of care should 

be appropriate to the covered diagnoses. Services recognized as community 

standards or evidenced-based practices for a given condition should be covered. 

For example, for major depression, coverage of only medications prescribed 

through primary care would restrict access to psychotherapy in the benefit design, 

thus shifting the cost for this benefit to the patient. Similarly, for medication-based 

addiction treatment, coverage of the medication only would leave patients without 

access to critical psychosocial rehabilitation services, a community standard. 

Medication for the treatment of mental health and addiction disorders has been 

proven to be critical to many individual’s recovery and should be part of the scope 

of treatment offered under the benefit, no less than for medication for other medical 

and surgical conditions. 

The regulations should recognize that the scope of treatment for mental illness 

and addiction disorders should be no more restrictive than what is available 
substantially for other chronic health conditions such as diabetes, epilepsy, heart 

disease, or respiratory conditions. Comprehensive disease management, chronic 

care, or packages of services with proven efficacy for treatment and rehabilitation 

services for people with serious mental illness, addictions and emotional 

disturbance should be covered if similar approaches are covered for substantially 

all other chronic health conditions. Comprehensive approaches that organize and 

coordinate packages of care can structure copayments and other cost-sharing to 

provide an incentive to active engagement in treatment. 

We also urge that the regulations address “exclusion” provisions in health plan 

contracts. Common exclusions especially relevant to MH/SU include court-ordered 

treatment and experimental or investigative treatment that restrict the scope of 

treatment or services that would otherwise be appropriate to the patient’s 

diagnosis and functional condition. For example, court-ordered treatment that 

would otherwise be covered by a health plan could be covered when court decision 

is based on a diagnostic assessment and plan of care developed by a licensed 

professional within the plans provider network. Under MHPAEA, it is appropriate 

for healthplans to look to research evidence and expert consensus opinion to 

make coverage decisions; however, the regulations should not permit more 

restrictive exclusionary criteria for “experimental” or “investigative” treatments 

applied to MH/SU than for other health conditions. 

State Pre-emption Issues 

As the regulations are drafted special attention must be given to ensure that 

Federal parity regulations pre-empt weaker state laws, but do not supplant state 

laws that provide more protection to enrollees. Specific areas to consider include 

States with weaker substance abuse treatment requirements and State laws that 

limit parity to certain conditions versus MHPAEA that may apply parity to a 

broader list of disorders. 

Medical Necessity 

Medical necessity determinations are critical to equal access to appropriate care. 

Denials of care are denials of payment to the provider—directly shifting 

responsibility to the patient to either seek another plan of care or pay out of pocket 

for an otherwise covered benefit. Further, restrictive utilization management has 

the potential to shift risk and cost to government programs once a patient 

qualifies. The parity law regulations must provide guidance and predictability to 

healthplans, consumers and providers regarding how medical necessity is defined 

and criteria used to make utilization management decisions. 

A current Federal standard to consider while developing MHPAEA regulations 

exists under Medicare statute, which states “no payment may be made... for any 

expenses incurred for items or services which are not reasonable and necessary 

for the diagnosis or treatment of illness or injury or to improve the functioning of a 

malformed body member.” (42 U.S.C. 1395y (a) (1) (A)) There are specific areas 

that regulations should address in order to assure that this flexibility does not 

become a means to make other provisions of the law irrelevant. Regulations 
should require: 

- Clinical criteria for admission/authorization, continuing care and discharge 

should be used for utilization decisions and these criteria must be available to 

enrollees and their providers at the initiation of treatment. 

- There must not be a “fail-first” policy. If a service is necessary and appropriate, 

failure in another service should not be required as a prerequisite to authorization. 

- Health plans to make information available to providers on covered benefits, 

limitations, and authorization procedures so that they can verify before initiating a 

plan of care. 

- Health plans to make mental health/substance use disorder medical necessity 

criteria available to current or potential beneficiaries and providers upon request. 

- Health plans to make reasons for payment denials available to beneficiaries and 

their providers through a process specified in the regulations. 

- No pre-emption of stronger State laws: Federal regulations regarding utilization 

review and definition of medical necessity should not pre-empt criteria defined in 

state statute that provides more benefit and consumer protections. 

- Medical necessity should be based on local community standards and expert 

consensus opinion. Benefits and scope of services covered should be defined to 

include those necessary to sustain or maintain functioning when without the 

service the patient would deteriorate. 

- Medical necessity determinations for MH/SU have inappropriately shifted 

financial responsibility to the government or secondary payers. In order to protect 

the government from assuming this risk, medical necessity criteria should be not 

less restrictive than Medicaid in the state in which treatment is performed. 

Government subrogation rights would allow recovery of the cost of services when 

utilization management decisions have the effect of shifting risk and responsibility 

for covered benefits to Medicaid, Medicare, or a state government sponsored 

program. 

Appeals and Independent Review of Denial of Reimbursement or Payment for 

Services 

Parity for mental health and addictions services represents a significant change 

that will present implementation challenges for health plans and providers. As with 

any regulatory change, problems getting it right can be anticipated and plans to 

assist and respond must be put in place. To be effective, information about how to 

access internal member services or ombudsman assistance, appeals procedures 

and independent review must be made readily available to enrollees and easy to 

access. The MHPAEA regulations must provide guidance and standards for 

appeals and independent review that provide no less consumer protections than 

those that would exist for other health services. We recommend that the 

regulations specify: 

- Independent review must be available to re-consider utilization management 

decisions within a specified time period. The appeal or review process must be 

communicated to patients and the requesting provider. Summary results of review 

decisions must be available to plan members, network providers, state regulators, 

and the public. 
- If state law requires medical necessity criteria for various services to be publicly 

available without request, the state law pre-empts the federal statute. 

- Otherwise covered services/treatment should be covered while an appeal is 

pending. 

- Health plans and providers must inform consumers through an “advanced 

beneficiary notice” that they may be liable for the cost of services when denied or 

limited by management decisions. 

- Health plans should not be able to deny or limit an otherwise covered service 

without also recommending another allowable plan of care to the patient and/or 

provider. 

- There should be a mechanism for expedited appeal for situations in which a 

crisis or urgency that cannot be delayed without putting the patient at risk. 

Coverage should not be denied in situations where an emergency or urgency made 

prior approval unfeasible. 

We thank you for the opportunity to comment on the Paul Wellstone and Pete 

Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). 

Sincerely, 

Pat Bridgman, Associate Director