May 26, 2009 

Internal Revenue Service 

U.S. Department of the Treasury 

Employee Benefits Security Administration 

U.S. Department of Labor 

Centers for Medicare & Medicaid Services 

U.S. Department of Health and Human Services 

Re: Request for Information Regarding the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addiction Equity Act of 2008 (published in 74 Fed. 

Reg.19155 et seq.) 

To the Departments: 

Thank you for the opportunity to comment on issues surrounding the Paul 

Wellstone and Pete Domenici Mental Health Parity and Addiction Equity 

Act of 2008 (MHPAEA). The attached document represents the comments 

from the Bazelon Center for Mental Health Law, established in 1972 and 

the leading national legal advocacy organization for people with mental 

disabilities. 

In the document, we have addressed many of the specific areas for which 

comments were solicited. We hope you will take our recommendations 

under careful consideration as regulations are developed. 

Thank you again for this opportunity to comment. 

Sincerely, 

Chris Koyanagi 

Policy Director 

Civil Rights and Human Dignity 

BOARD OF TRUSTEES 

Nikki Heidepriem, Chair 

Heidepriem & Mager, Washington DC 

David B. Apatoff 

Arnold & Porter, Washington DC 

Eileen A. Bazelon 

Department of Psychiatry 

Medical College of Pennsylvania

Robert A. Burt 

Yale Law School 

Jacqueline Dryfoos 

New York NY

Kenneth R. Feinberg 

The Feinberg Group, Washington DC 

Howard H. Goldman 

Department of Psychiatry 

University of Maryland School of Medicine 

Emily Hoffman 

On Our Own Maryland 

Jacki McKinney 

National Association of People of Color 

Consumer/Survivor Network 

Martha L. Minow 

Harvard Law School 

Stephen J. Morse 

University of Pennsylvania Law School 

Joseph G. Perpich 

JG Perpich LLC, Bethesda MD 

Paul Recer 

Science and medical journalist Washington DC 

Rhonda Robinson-Beale, MD 

United Behavioral Health 

Harvey Rosenthal 

New York Association 

of Psychiatric Rehabilitation Services 

Elyn R. Saks 

University of Southern California 

Gould School of Law 

W. Allen Schaffer, MD 

Williston, VT 

Cynthia M. Stinger 

Washington Group International 

Martin Tolchin 

Journalist and author 

Washington DCs 

Sally Zinman 

California Network of 

Mental Health Clients 

HONORARY TRUSTEE 

Miriam Bazelon Knox 

Washington DC 

TRUSTEES EMERITI 

Mary Jane England 

Regis College 

H. Rutherford Turnbull, III 

Beach Center for Families and 

Disability, University of Kansas 

EXECUTIVE DIRECTOR 

Robert Bernstein 

Affiliations listed for informational purposes only

1101 Fifteenth Street NW, Suite 1212, Washington DC 20005 u 202-467-5730 (voice) 202-223-0409 (fax) u www.bazelon.org 
Response to Request for Information: 

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 

Submitted by the Bazelon Center for Mental Health Law 

A. Comments Regarding Economic Analysis, Paperwork Reduction Act and Regulatory 

Flexibility Act 

1. Do plans currently impose other types of financial requirements or treatment limitations on 

benefits? How do plans currently apply financial requirements or treatment limitations to (1) 

medical and 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?

There has been debate in the field regarding whether or not there should be a single 

deductible that includes both physical health care services and mental health care 

services, or “separate but equal” deductibles for these services. Given that the primary 

goals of parity legislation are to prohibit discriminatory insurance practices and affirm 

that mental health and substance use disorder treatments are integral components of 

comprehensive health care, creating discrete but equal deductibles undermines these 

goals by suggesting that it is necessary to treat physical and mental health services 

differently. We strongly suggest that one single, inclusive deductible for physical health 

care and mental health services is necessary to avoid further discrimination. 

2. Are there unique costs and benefits for small entities subject to MHPAEA (that is, employers 

with greater than 50 employees that maintain plans with fewer than 100 participants)? What 

special consideration, if any, is needed for these employers or plans? What costs and benefits 

have issuers and small employers experienced in implementing parity under State insurance 

laws or otherwise?

Currently, there is no provision in the new law that allows for special considerations for 

small entities. We agree that the law should not permit such special considerations, and 

that small entities that are subject to MHPAEA should be required to comply in the same 

manner as other plans subject to MHPAEA. 

3. Are there additional paperwork burdens related to MHPAEA compared to those related to 

MHPA 1996, and, if so, what estimated hours and costs are associated with those additional 

burdens?

While acknowledging the potential for MHPAEA to create additional paperwork hours 

and costs is necessary, there should be no consideration given to any additional burden 

on plans associated with the costs of making a request to the federal government for 
exclusion from the parity requirements. 

B. Comments Regarding Regulatory Guidance 

2. What terms or provisions require additional clarification to facilitate compliance? What 

specific clarifications would be helpful?

Clarification is needed regarding the application of the parity law to Medicaid managed 

care plans. Uncertainty in the field continues to exist, despite statutory language or 

references in Medicaid to the 1996 parity Act. Explanation is also needed to affirm 

that parity applies to SCHIP plans, as provided by the Children's Health Insurance 

Program Reauthorization Act of 2009 (P.L. 111-3). 

Clear explanations indicating how to compare mental health to health with regard to 

limits on a benefit package and cost-sharing requirements are also necessary. For 

example, Section 512(a)(3)(A)(i) states that financial requirements for mental health 

benefits should be “no more restrictive than the predominant financial requirements 

applied to substantially all medical and surgical benefits covered by the plan;” there is 

almost identical language in subsection (ii) with respect to treatment limits. What do 

these terms mean? The regulations must clarify and explain these terms in order to 

ensure that any limits on mental health services are appropriate given the overall 

coverage (including limits and financial obligations of the insured) in a particular plan. 

Not all treatments are analogous, and mental health services that are offered on an office 

outpatient basis, for example, should be treated the same as medical or surgical outpatient 

visits. This is straightforward for some benefits – medication management, coverage of 

prescription drugs. It is less clear for some other benefits. However, the term “no more 

restrictive than” should mean that coverage and cost sharing are equal even when, for 

example, a mental health service, such as a psychotherapy visit, is not strictly identical to 

a medical-surgical service, such as a 10-minute office visit. A second example would be 

if the plan chooses to cover intensive outpatient services or residential treatment. The 

intensive outpatient treatment should be compared with a standard medical-surgical visit 

for purposes of out-of-pocket costs or limits on number of visits. The residential 

treatment service should be considered analogous to inpatient hospital stays. 

 

The regulation should make clear that the plan may also provide for improved coverage 

of mental health and addictions services. For example, some plans waive cost-sharing for 

the first few visits in order to encourage individuals into treatment. A plan that chooses 

to provide residential treatment with lower cost-sharing than hospital care should be free 

to do so. 

Clarification is necessary to assist with the identification of those instances when state 

laws are to be pre-empted. It is particularly important to provide examples that illustrate 

how broader mandates that remain in effect in States interact with the new federal law. 

For example, any mandate to cover mental health services (whether only for people with 
certain serious mental disorders or only for a certain number of days) should remain in 

force. The federal law would then preempt any inappropriate limits on those services, 

and thus a mandate for 30 days of inpatient care would become a mandate for coverage of 

inpatient mental health care at parity with other inpatient health services. Additionally, 

statements that explain how a mandated minimum benefit becomes a parity benefit and 

how mandated coverage of serious mental illness remains in effect and becomes mandate 

for parity for serious mental illness are necessary. 

4. What information, if any, regarding the reasons for any denial under the plan (or coverage) 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?

Individuals should be provided with more information than is now typically received 

when a service is denied to them based upon medical necessity. A plain language 

explanation of why this particular service was not considered appropriate at this time for 

this person should be required. 

6. Which aspects of the increased cost exemption, 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?

Regulations that restrict the use of the exemption for a plan based on their documentation 

of increased costs are needed – the regulation on this matter should be identical to the 

regulation on the 1996 law. Model notices would indeed be helpful to assist with 

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

implement the cost exemption.