146 Washington Avenue Albany NY 12210 www.coalitionforthehomeless.org 518-436-5612 fax 518-436-5615 

May 28, 2009 

 

by email to E-OHPSCA.EBSA@dol.gov 

 

Office of Health Plan Standards and Compliance Assistance 

Employee Benefits Security Administration, Room N-5653, 

U.S. Department of Labor 

200 Constitution Avenue, N.W. 

Washington, DC 20210 

 

Dear Sir or Madam: 

 

I write in response to the joint Request for Information regarding the Paul Wellstone and Pete Domenici 

Mental Health Parity and Addiction Equity Act of 2008. 

 

I am the Deputy Executive Director for Policy with Coalition for the Homeless, a non-profit direct 

service and advocacy organization based in Manhattan and a member of the Steering Committee of the 

Timothy's Law Campaign which secured passage of our mandated minimum mental health insurance 

and parity law, entitled Timothy's Law, in 2006. We also played an instrumental role in the negotiations 

on the new federal law, and in particular the modifications intended to leave Timothy's Law and other 

very strong state laws intact or strengthened by, but in no way weakened, by the new federal law. 

 

We believe the language of the act is true to this purpose, having consulted at length with both the NY 

Delegation and the House and Senate sponsors, as well as our Governor's Office, the NYS Office of 

Mental Health, and the NYS Insurance Department. 

 

However, we met with the industry and our Insurance Department following the enactment to review the 

implications of the Act as it will apply in New York and discovered that there may be some further 

issues for interpretation that should be called to your attention so that the intent of the Act is preserved 

in the rulemaking process. 

 

Let me start by making a very clear note that it is our understanding that the interaction between federal 

and state law in the case of New York, will be that our mandated minimum benefits for mental health 

and chemical dependency (at least 20 outpatient visits and 30 inpatient days for mental health, and a 

separate 60 outpatient visits for chemical dependency) would be uncapped for the large fully insured 

group plans to the degree that they are treated as maxima by the plans, and because these plans are 

required to provide coverage of diagnoses that is no more restrictive than our state employee benefit 

plan (which covers all in the DSM IVr except a handful of the "v-codes" for which no practice 

guidelines are published), the enhanced unlimited coverage unde Timothy’s Law for selected 

"biologically-based" mental illnesses and selected children's diagnoses will be rendered obsolete for 

these groups with one exception. 

 

The exception would be if the plan were to exercise its option to exempt itself from the operation of the 

federal law, in which case it would again be subject to the two-part requirement of state law. (We think 

that would be an extremely rare exception because the bulk of the costs of complying with mental health 
 

mandatory coverage and parity requirements have already taken place under state law, and stateregulated plans will be hard-pressed to show the requisite premium increases in order to qualify for the 

exemption based solely on the operation of the federal law.) 

 

Further, it is our understanding that state regulated health plans in New York that are subject to the 

federal law will be required to provide coverage for both mental health care and chemical dependency 

treatment, on both an inpatient and an outpatient basis. 

 

We understand that some health plans believe in the absence of a mandated inpatient benefit for 

chemical dependency treatment in state law, that they will remain free to refuse this coverage even after 

the new federal law takes effect. 

 

We believe they are wrong for three reasons. First, the new federal law is clear that if a plan provides 

mental health or substance abuse benefits, it must comply with the new parity requirements. This means 

if a plan only provides chemical dependency and not mental health coverage, it must provide both when 

the federal rules take effect, and if it provides inpatient coverage for either mental health or substance 

use disorders, it must also provide outpatient coverage for both types of disorders. 

 

Second, some benefits in some plans (like our Family Health Plus program for low income families) are 

blended benefits, so that an inpatient or outpatient benefit is provided for x number of days of inpatient 

coverage for both chemical dependency and mental health treatment, and y number of days of outpatient 

treatment for either chemical dependency or mental health needs, or both. 

 

Third, some treatments are not distinctly inpatient or outpatient services. The most obvious of these is 

"partial hospital" which takes place as a hospital based day service that, for example in NYS, is counted 

as two partial hospital days exchanged for one hospital inpatient day. We would urge a federal rule on 

this exchange as well, and that it be three for one, rather than two for one, since partial hospital days are 

typically less than eight hours. 

 

Finally, it is our understanding that the new federal law has a very useful new rule that may require New 

York to modify what constitutes parity in cost sharing. Over our objections, New York has allowed 

health plans that have tiered co-pays to charge mental health visit co-pays at the specialty rather than at 

the primary care rate. The problem we have with this practice is that many mental health services are 

really primary care types of services, and because of their frequency, specialty co-payments can become 

prohibitively costly for consumers. Such a practice is not commonly used with other "specialists" when 

they perform primary care functions. For example, an endocrinologist can be the primary care provider 

for a patient with diabetes who will be charged a primary care co-payment for even frequent visits. 

 

Turning to the solicited comments, I hope the above remarks are responsive to some of the questions 

about practices of group health plans that may be impacted. Regarding the questions relating to 

regulatory guidance, i will not repeat the above, although all of these matters should be considered in the 

development of the regulations. 

 

With respect to the remaining questions, I wish to discuss a few points: 

 

1. The New York State Department of Health maintains that Medicaid managed care programs such as 

child health plus are not "group" policies and therefore not covered by the federal parity law. I and 

others disagree. We know that the CBO estimated costs of compliance for these programs in association 

with the federal enactment, and the prior federal parity requirements applied to them as well. Further, I 
 

note that Community Advocates Public Policy Institute has provided extensive comment (May 19 2009 

addressed to CMS) on this matter, and we join in their call for regulatory direction to states on this so 

that the regulators, plans, providers and consumers all are aware that parity does indeed apply. 

 

As you may be aware, for Child Health Plus this is a somewhat moot point because parity is included in 

the separate and more recent S-chip reauthorization. We have confirmation from our Governor's Office 

that NYS is complying, but were advised that implementation could not be effected immediately. The 

effective date was April 1 and some time is needed to adjust rates and for the plans to ramp up their 

networks to meet the network adequacy requirements. Further, it is my understanding that even if a 

Medicaid managed care limit is applied to a mental health service, the services above the limit are 

subsequently covered as fee-for-service or stop-loss payment, so recipients may not be facing serious 

harm due to the lack of parity in our Medicaid program. Nevertheless, it is necessary for the ground 

rules to be made clear to all concerned. 

 

2. Residential rehabilitation (or crisis residence) services are a problem area since for mental health 

these tend not to take place in a "rehab," but in a residence (for which there may or may not be a 

comparable service). The NYS Insurance Department allows plans to deny coverage for mental health 

residential services, even though these are licensed in NY and provide rehabilitation services. For 

chemical dependency, rehabilitation may or may not be covered, depending on plan benefits and auspice 

of the rehabilitation service. It appears hospital-based rehabilitation is more well accommodated by 

health plans than residential rehabilitation services, notwithstanding that residential rehabilitation is 

more cost-effective. By contrast, with physical and brain injury, rehabilitation is a known quantity and 

covered - rehab - period, although it is typically a hospital-based service. Assuring that residential 

rehabilitation is covered should be an important focus of the rule making. 

 

3. Medication management visits: We agreed with the plans and the NYS Insurance Department that 

such visits (typically a 15 minute review of blood work, side effects, interactions, efficacy, and any 

needed adjustments) are not to be counted against mental health benefits minima, but this has posed a 

problem in some complaints in the wake of Timothy's Law where plans are counting these visits as 

mental health visits. Federal direction to prohibit this would be of help. 

 

4. The most serious problems with medical management are that our state regulators cannot reverse a 

bad decision upheld on external appeal - it has to be litigated. This is true for both mental health and 

physical health matters, but it appears to me that there should be some way to overcome bad clinical 

analysis that falls short of litigation, especially in complex areas like mental health and addiction. It may 

be that the new federal rules about medical necessity disclosure can help with such problems, or that the 

rules could empower regulators to accept clinical documentation sufficiently robust to permit them to 

overturn such denials when there is clear error in an external appeal decision. 

 

5. There is a kind of gaping hole with respect to coverage of services for those with autism spectrum 

disorders. Those with milder conditions like Aspergers disorder as well as those more severe instances 

of autism face the same problem - the schools and the insurance plans both deny services, endlessly 

passing the buck back and forth. Each says the other is responsible for the various tests and services, 

even when the service is called for by licensed evaluators; even when all agree the service is needed, but 

disagree about whether it is for academic or emotional or social or other needs; and even when the child 

has no IEP, or a declassified IEP. Even then, insurance plans deny coverage and make parents pay outof-pocket on the grounds that the services are needed for academic, not medical needs. 

 
 

There needs to be a "default" payor" for testing and treatment for this unique set of conditions where a 

wide array of educational, occupational, physical, and psychiatric assessments, tests and treatments are 

needed. It is clear that at times, the default payor or safety net should be insurance coverage, while in 

other instances it should be the educational system - it is very complex to sort out, but quite necessary. 

Further, these disorders are considered "of childhood" notwithstanding the fact that these children 

become adults without adequate support and services. 

 

Recent coverage in the New York Times, including an article about expensive educational services, and 

an op-ed about the needs of adults with autism help to illustrate the complexity of the problem and the 

inadequacy of the current structures. Unfortunately, the solutions to this area of controversy appear to 

require the navigation of some tricky boundaries between the educational and health care systems. As 

many states are now examining legislation to mandate better coverage or educational services for people 

with autism, it may be suitable for the regulations to weigh in on this subject as well. 

 

6. Not unrelated to the problem of covering services needed by children and adults with autism is the 

problem of obtaining coverage for so-called experimental services. I would note that this is a problem 

across healthcare, but more so in the area of autism and chemical dependency than in other mental 

health areas, at least from what I observe as I review Timothy's Law complaints. Perhaps federal 

guidance could help with this problem. 

 

7. A serious problem we witness, for which we hope there may be a federal regulatory remedy, it the use 

of a retrospective medical necessity determination to revoke approval for coverage of a prior authorized 

service. Federal regulations should rein in this problem. 

 

In closing, I welcome any opportunity to help further inform the rule making process should there be a 

need to explore these matters further. 

 

Thank you for your interest and consideration. 

 

Yours, 

 

 

Shelly Nortz 

 

 

 

Shelly Nortz 

Deputy Executive Director for Policy 

Coalition for the Homeless 

146 Washington Ave. 

Albany, NY 12210 

518-436-5612 

SNortz@cfthomeless.org 

www.coalitionforthehomeless.org