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May 28, 2009 

Office of Health Plan Standards & Compliance Assistance 

Employee Benefits Security Administration 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Room N-5653 

Washington, DC 20210 

RE: Request for Information Regarding the Paul Wellstone and Pete Domenici Mental 

Health Parity and Addiction Equity Act of 2008 (MHPAEA) (PL110-343) 

On behalf of the sixty coalition members and over 10,000 employer members of the National 

Business Coalition on Health (NBCH) appreciates the opportunity to comment on the 

implementation of the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) 

in effort to ensure that employers, purchasers, consumers and providers can effectively 

comply with this new law. In terms of comments, we will begin with general observations 

about the state of our nation’s health care system and the opportunity for reform, and then 

transition to specific MHPAEA issues. 

GENERAL COMMENTS: 

Our coalition members and their employers understand the vital importance of mental health 

and substance abuse benefits, and its integration and equity with medical and surgical 

insurance benefits. Even during our nation’s difficult economic situation, employers can 

justify comprehensive mental health benefits given the strong connection to total health 

status. Untreated mental health and substance abuse conditions can greatly affect employees’ 

productivity and attendance, as well as become extremely debilitating and costly. In fact, the 

World Health Organization (WHO) has pronounced mental health disorders to be the most 

burdensome health conditions in the United States.i

 It is indeed in the employers’ best 

interest to cover behavioral health benefits and to appropriately manage them to maximize 

employee productivity. However, these are challenging times for employers with 

considerable economic instability, increasing burden for employers to provide basic 

employee health benefits, and impending national health care reform. An appropriate 

balance needs to be found to ensure that with the implementation of MHPAEA, employers 

can appropriately contain health care costs, manage resource utilization and improve 

population health status. Burdensome, inefficient benefit mandates that are difficult for 
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plans and employers to understand and to implement will preempt the original intent of 

MHPAEA. 

As our nation’s health care system continues to escalate in cost and complexity, people link 

into the system in a variety of different ways depending on their employment, insurance 

eligibility, health status, financial circumstances and citizenship status. A major concern is 

that rising health care costs put America’s business industry at a competitive disadvantage in 

a global economy, while adding to the economic insecurity of the American public who 

must increasingly contribute their own hard earned dollars to an ever growing health care 

industry. We all gain from accessible, efficient, thoughtful, evidence-based health care but 

we all loose from perpetuating an opaque system of inefficiency, and inaccessibility. We 

need a new, integrated system based on a complete transformation of the health care system 

towards higher performance, population health status improvement, integration and care 

coordination, system-wide reengineering, and a strong information technology 

infrastructure. All of these concepts are highly applicable and integral to behavioral health 

care. 

 Ultimately, NBCH and our coalition members believe that a strong employer-based health 

care delivery system holds the key to driving efficient, effective health care in this country. 

Employers as purchasers working in unison with large public stakeholders (i.e. Medicare and 

Medicaid) could aggressively instituted a value based purchasing strategy that combines 

performance measurement, transparency, payment reform, and consumer activation and 

choice to drive system-wide quality improvement standards while controlling costs. 

In terms of MHPAEA, it is important to strike an appropriate balance between protecting 

consumers and creating a business-friendly environment for purchasers, insurers, providers 

and other stakeholders. Relative to NBCH’s mission and focus, we would like to offer the 

following comments, as well as seek clarification and confirmation regarding the proposed 

mental health and substance abuse parity regulations. 

MHPAEA-SPECIFIC COMMENTS: 

Define the coverage parity requirement.

Health insurers and employers often offer beneficiaries an array of health plans to choose 

between. These health plans may have very different coverage of medical/surgical and 

behavioral health benefits, different financial limitations such as deductibles and copayments, and different designs of in-network and out-of-network providers. The unique care 

settings of behavioral health care can make it challenging to implement parity in benefit plan 

designs. The parity requirement in the law is “no more restrictive than the predominant 

financial requirement (or treatment limitation) applied to substantially all medical and 

surgical benefits”. It is important to ensure that the comparison of care is made between 

similar aspects of coverage. For example, outpatient is compared to outpatient and inpatient 

to inpatient. This clarification also needs to be made for out-of-network coverage. Some 

employers offer employees a choice between multiple health plans but contract with a single 

behavioral health vendor whose benefits are “carved-out” from the medical/surgical benefit. 

This issue is vague is the new law so guidance is needed To what standard are health plans 

and employers held in these instances? 

Clarify that employers/plans can choose the diagnosis covered.
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MHPAEA does not mandate coverage of mental health or substance use disorder benefits. 

It allows employers/plans to choose what mental health conditions and substance use 

disorders that they will cover and whether they will cover no mental health or substance use 

disorders at all. Is a plan required to cover a full continuum of services for alcohol and drug 

use disorders, if it covers a full continuum of services for medical conditions under the 

medical/surgical benefit? Also, it is important to reinforce that employers, through 

contracted health benefit plans, decide what diagnosis to cover and not cover. The ability to 

choose the diagnosis covered impacts the cost of providing parity. 

Confirm that the law allows for management of the benefit and does not require “parity” 

in the management of the benefit. 

MHPAEA uses the words “terms and conditions of the plan or coverage” to allow for the 

management of the benefit. The intent of the parity requirement was for it to apply to 

financial and treatment limitations not the management of the benefit. Managed care is 

what makes parity affordable for employers. There are unique clinical differences between 

behavior health disorders and medical and surgical conditions which make equitable 

management of these benefits unrealistic and costly. The Office of Personnel Management 

(OPM) has recognized the need for flexibility in the Federal Employee Health Benefit Plan 

(FEHBP) implementation of MHPAEA in 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.” 

Confirm that separate but equal deductibles and out-of-pocket maximums are an option. 

In the financial requirements section of the law it states “there are no separate cost-sharing 

requirements that are applicable only with respect to mental health or substance use disorder 

benefits”. The business and insurance community understands the intent of this language to 

mean that there cannot be cost-sharing or a financial requirement that is applicable to mental 

health and substance abuse and not have an equal one for medical/surgical benefits. 

Separate but equal deductibles and out-of-pocket maximums are current practice and the 

regulation for the 1996 law specifically allows for separate but equal annual and lifetime 

limits. There is concern that single deductibles will be costly to track and administer. 

How can employers that provide multiple health plans with multiple and very different 

benefits, cost-sharing, deductibles and co-pays meet MHPAEA’s requirements? Can 

employers offer multiple health plans and a single carve-out behavioral health plan? 

Confirm that the law does not require coverage of all evidence-based treatments. 

The MHPEAE definition of treatment limitation includes the language “or other similar 

limits on the scope or duration of treatment”. We are concerned that this language could be 

misconstrued in that employers must cover all evidence-based treatments for the diagnosis 

they choose to cover. We do not believe this was the intent of the legislation and we do not 

believe that actual treatments are “similar” to the number of visits or days of coverage. In 

addition, the definition of mental health benefits states that services for mental health 

conditions are defined under the terms of the plan and in accordance with applicable Federal 

and State law (i.e. the plan decides what services, or treatments, it covers). Also, the 

medical/surgical side does not require coverage of all evidence-based treatments. It is 

possible that this provision could result in increased costs if regulators decide to require 

coverage of all evidence-based treatments. 
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However, we recommend quality of care measures to be developed and implemented by 

plans to encourage the use of established best practices and to identify patients who are not 

receiving appropriate care. 

Clarification of Prescription Drug Coverage. 

Plans are not obligated by MHPEAE to provide mental health and substance use disorder 

benefits. The Act only applies to a plan that provides both medial and surgical benefits and 

mental health or substance use disorder benefits. Assuming that the plan offers both of these 

types of benefits, the question can be raised whether the Act applies to medications. The text 

of the legislation does not specifically address coverage of medications. Does MHPAEA 

require plans to cover medications that treat mental health and substance use disorders at the 

same level as medication coverage for medical and surgical conditions? 

 

Clarification of Size and Cost Exemption.

Do small employers with not more than fifty employees need to formally file for a parity 

coverage exemption? MHPAEA also needs to be clearer on the process for filing a cost 

exemption. Our questions include: how should an employer file? What is the time frame for 

filing? what is the process for filing an exemption?, will model forms be provided for filing? 

Clarification of HIPAA Preemption.

MHPAEA uses the Health Insurance Portability and Accountability Act (HIPAA) 

preemption standard. What will be the process for determining which state laws are and are 

not preempted? 

Clarification of Applicable Carve-out Entities.

Some large employers offer employees a choice between multiple health plans but contract 

with a single behavioral health vendor whose benefits are “carved-out” from the medical and 

surgical benefit. With mental health and substance addiction benefits included, this could be 

administratively burdensome and nearly impossible for vendors trying to track co-payments 

and deductibles across multiple plans. Health plan cooperation would be absolutely 

essential. Clarification is needed regarding MHPAEA applicability to carve-out vendors. To 

what standard are health plans and employers held?

Clarification of Applicability to Medicaid 

Clarification is needed as to whether or not MHPAEA’s “no more restrictive” standard 

applies to Medicaid managed care plans. Does MHPAEA require that Medicaid managed 

care plans provide mental health and substance use treatment services that are comparable to 

medical and surgical services, even when the full range of services are not reimbursable 

under the States' Centers for Medicare and Medicaid Services (CMS) approved state 

Medicaid plans? Must States reimburse Medicaid managed care plans for mental health and 

substance use treatment services that are not included in state Medicaid plans or CMS 

approved waivers? 

Request no penalty for acting in good faith.

Because the final MHPAEA regulations will be issued late in 2009 and many self-insured 

employers will have either already filed with the state or finalized health plans with 

beneficiaries, it would be helpful to not apply the financial penalty if an employer or plan can 

show that it acted in good faith in implementing the law. It also makes since for the Agency 

to specify the actions that qualify as acting in good faith by employers. Furthermore, we are 

requesting that employers that have acted in good faith not have to make changes to the plan 
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mid-year. Employers do not have the resources to re-review selected plans and to change a 

benefit package in the middle of a benefit cycle. This would be a costly and burdensome 

requirement. 

I appreciate the consideration extended to our comments and concerns regarding 

implementation of MHPAEA. If there are questions, please feel free to contact me directly 

at awebber@nbch.org or 202.775.9300. 

Sincerely, 

President and Chief Executive Officer 

National Business Coalition on Health 

 

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 D. Shern, K Beronio, H.T. Harbin-“ After Parity-What’s Next:” Health Affairs, Volume 28, no. 3 (2009): 

660-662.