From: Hinckson, Andrea [mailto:ahinckson@mhahouston.org] 

Sent: Tuesday, May 26, 2009 4:07 PM 

To: EBSA, E-OHPSCA - EBSA 

Subject: MHPAEA Comments

May 26, 2009 

Office of Health Plan Standards and Compliance Assistance 

Employee Benefits Security Administration, Room N-5653 

U.S Department of Labor 

200 Constitution 

Washington, DC 20210 

Attention: MHPAEA Comments 

To Whom It May Concern: 

Mental Health America of Greater Houston appreciates the opportunity to respond to the 

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

Parity and Addiction Equity Act (MHPAEA) of 2008 published in the Federal Register 

on April 28, 2009. 

In enacting the MHPAEA, Congress made clear that the goal of this new law was to 

remedy the long history of employers and insurers not providing comparable coverage for 

mental health and substance use treatment versus medical and surgical benefits. An 

overly strict reading of the MHPAEA could thwart its fundamental purpose and result in 

a situation similar to the outcome following enactment of the Mental Health Parity Act of 

1996 when the vast majority of employers substituted new restrictions on access to 

mental health benefits, thereby evading the spirit of the law. 

In light of these issues and concerns, our responses to the Request for Information are as 

follows: 

Questions from the Request for Information: 

1. Financial Requirements and Treatment Limitations: 

Do plans currently impose other types of financial requirements or treatment 

limitations on benefits?
The MHPAEA defines the term "financial requirement" as including deductibles, copayments, coinsurance, and out-of-pocket expenses. The statute likewise defines the term 

"treatment limitation" as including limits on the frequency of treatment, number of visits, 

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

But the lists of types of limitations and requirements included in these definitions should 

not be interpreted as the only treatment limitations and financial requirements to which 

parity applies under the new law. Other examples of treatment limitations that plans 

disproportionately use to limit the "scope or duration of treatment" for mental health or 

substance use conditions include the following: 

• Prior authorization that are applied more frequently and with higher standards for 

approval; 

• More restrictive medical necessity and appropriateness criteria; 

• Lower reimbursement rates for mental health/substance abuse providers; 

• "Fail first" policies that require people with mental health conditions to suffer 

adverse outcomes from a preferred treatment or medication before the treatment 

or medication recommended by their providers will be covered; 

• Step therapy requirements that force people with mental health conditions to try a 

series of preferred medications or treatments prior to accessing the recommended 

treatment; 

• Exclusion of certain specialized mental health services like collaborative care, 

assertive community treatment, residential treatment, and partial hospitalization; 

• Higher evidence-based standards; 

• More frequent restrictions on treatments due to experimental status; 

• Stricter cost effectiveness requirements; 

• Limitations on covering specific types of providers; 

• More restrictive provider licensure requirements; 

• More limited preferred provider networks or phantom networks with invalid 

phone numbers and names of providers no longer practicing or accepting new 

patients; 

• Requirements to prove current threat of harm to self or others as the justification 

for inpatient care; and 

• Separate deductibles or lifetime limits. 

The MHPAEA regulations should clarify that the parity standard applies to these other 

types of treatment limitations as well. Plans that manage their mental health and 

substance use benefits using these techniques must do so in a nondiscriminatory way. 
How do plans currently apply financial requirements or treatment limitations to (1) 

medical or surgical benefits and (2) mental health and substance use disorder 

benefits? Are these requirements or limitations applied differently to both classes of 

benefits? Do plans currently vary coverage levels within each class of benefits? 

Health plans often impose higher co-pays, deductibles, and other cost-sharing 

requirements, as well as restricting the number of outpatient visits and inpatient days 

covered. But these benefit design limitations are only the most obvious examples of 

discriminatory treatment of mental health and substance use care. 

Regulations implementing the MHPAEA must take into account evidence indicating 

mental health and substance use benefits have thus far been much more strictly managed 

than medical and surgical benefit. States with preexisting parity laws have not seen large 

increases in mental health and substance use care utilization, presumably due to strict 

medical management. A recent study reported that about two-thirds of primary care 

physicians could not get outpatient mental health services for their patients—a rate that 

was at least twice as high as that for other services due in part to health plan barriers and 

inadequate coverage. 

Thus, it is critical that the regulations specify that utilization management techniques are 

considered to be treatment limitations that may not be applied to mental health and 

substance use benefits in a discriminatory or more restrictive fashion. 

2. Terms/Provisions in the MHEAPA: 

What terms or provisions require additional clarification to facilitate compliance? 

What specific clarifications would be helpful?

We believe the following terms and provisions should be clarified in the regulations: 

• Parity means equal to or better than—The regulations should emphasize that 

financial requirements or treatment limitations for mental health and substance 

use benefits must be “no more restrictive than” those for medical and surgical 

benefits as stated in the MHPAEA. 

• Impact on state parity laws—Clarification is needed to emphasize the continued 

applicability of state laws that provide for greater protection of mental health and 

substance use benefits. 

• Application of the MHPAEA to Medicaid managed care plans and SCHIP—Since 

the 1996 parity law applied to Medicaid managed care plans and SCHIP, the 
regulations should make clear that the new parity law applies to these plans as 

well. 

• The MHPAEA prohibits separate cost sharing and treatment limits—The statute 

clearly prohibits separate deductibles and other cost sharing and treatment limits 

for mental health/substance abuse but this is not well understood. 

3. Medical Necessity: 

What information, if any, regarding the criteria for medical necessity 

determinations made under the plan with respect to mental health or substance use 

disorder benefits is currently made available by the plan? To whom is this 

information currently made available and how is it made available? Are there 

industry standards or best practices with respect to this information and 

communication of this information?

MHPAEA requires plans to provide the criteria they use to make medical necessity 

determinations to any current or potential enrollee or contracting provider upon request. 

Most medical necessity standards used by the health plans seem to focus on the following 

criteria: 

1. Customary standard of practice (whether the treatment accords with professional 

standards of practice); 

2. Evidence-based (whether there is sufficient evidence to demonstrate 

effectiveness); 

3. Medical service (whether the treatment is considered medical as opposed to social 

or custodial); and 

4. Cost (whether the treatment is considered cost-effective by the insurer). 

The following additional clarifications would make these criteria better: 

1. Evidence from national experts should be considered if peer-reviewed literature is 

not available; 

2. Services must be available to maintain or restore function and to prevent or 

ameliorate medical conditions in addition to treating injuries or illnesses; and 

3. Cost effectiveness does not necessarily mean lowest cost. 

The regulations should require plans to do the following: 

• Set timeframes for disclosure of medical necessity criteria; 

• Detail appeal and enforcement mechanisms; 
• Make available to beneficiaries, upon request, the standards used to determine the 

criteria for medical necessity (e.g., standard of practice, strength of the evidence 

base, and definition of medical conditions) with regard to mental health and 

substance use treatments; and 

• Make available to beneficiaries, upon request, the standards used to assess 

whether the medical necessity criteria have been met for medical and surgical 

benefits. 

4. Denials of Reimbursement/Payment for Services: What information, if any, 

regarding the reasons for any denial under the plan of reimbursement or payment 

for services with respect to mental health or substance use disorder benefits is 

currently made available by the plan? To whom is this information currently made 

available and how is it made available? Are there industry standards or best 

practices with respect to this information and communication of this information? 

The MHPAEA requires plans to provide the reasons for any coverage denials with 

respect to mental health or substance use benefits to any current or potential enrollee 

upon request. 

The regulations should: 

• Specify that beneficiaries may request at no charge copies of the documentation 

the plan used to make the coverage determination at issue; 

• Set et timeframes for disclosure of reasons for claims denials; and 

• Outline the process for appealing the determinations, including time frames and 

enforcement mechanisms. 

5. Out-of-Network Coverage: To gather more information on the scope of out-ofnetwork coverage, the Departments are interested in finding out whether plans 

currently provide out-of-network coverage for mental health and substance use 

disorder benefits. If so, how is such coverage the same as or different than out-ofnetwork coverage provided for medical and surgical benefits? 

The regulations should require that plans provide information to consumers regarding the 

relative availability of in-network and out-of-network providers for each of the medical 

specialties in order to evaluate the adequacy of the networks and their equivalence 

 6. Cost Exemptions: Which aspects of the exemption for increased cost resulting 

from the parity requirement, if any, require additional guidance? Would model 

notices be helpful to facilitate disclosure to Federal agencies, State agencies, and 

participants and beneficiaries regarding a plan's or issuer's election to implement 

the cost exemption? 
MHPAEA provides that plans may be exempt from the law if they can show that the 

parity requirements result in an increase in total costs of coverage by over 2 percent in the 

first year and one percent for each subsequent year. 

The regulations should clarify that assessment of whether a plan qualifies for a cost 

exemption must be determined on a retrospective basis and based on real experience with 

increased cost instead of hypothetical costs. 

Model notices would be very helpful to facilitate disclosure to Federal agencies, State 

agencies, and participants and beneficiaries regarding a plan’s or issuer’s election to 

implement the cost exemption. 

7. Other issues: The agencies have also stated that they will accept comments on 

any other issues relevant to the development of the MHPAEA regulations. 

The regulations should provide a methodology for comparing types of service across 

medical specialty areas to determine their equivalence. In addition, the regulations could 

outline broad categories of care within which parity will be required; for example, 

inpatient in-network services as a category and inpatient out-of-network as a separate 

category. 

Another issue to be addressed is whether only covering mental health medications 

constitutes providing a mental health benefit such that the parity requirements in the 

MHPAEA are triggered. To exclude medications from consideration as mental health 

benefits would imply that the new parity requirements do not apply to this essential form 

of mental health treatment that is one of the therapies most analogous to medical and 

surgical benefits. This result would be inconsistent with the intent of the MHPAEA to 

ensure equity between mental health/substance use benefits and medical/surgical benefits. 

Andrea Hinckson

Director of Policy & Government Relations

Mental Health America of Greater Houston

(formerly Mental Health Association of Greater Houston)

Office: 713-523-8963

Fax: 713-522-0698

www.mhahouston.org