National Coalition for Mental Health Recovery 

1101 15th Street, NW #1212

Washington, DC 20005

www.ncmhr.org

The National

Coalition for

Mental Health

Recovery 

is united by these

values:

Recovery:

We believe it is possible 

for everyone.

Self Determination:

We need to be in control

of our own lives.

Holistic Choices:

We need meaningful 

choices, including a range 

of recovery-oriented 

services.

Voice:

We must be centrally 

involved in any dialogues 

and decisions affecting us.

Personhood:

We will campaign to 

eliminate stigma and 

discrimination.

Steering Committee:

Daniel Fisher

Joseph Rogers 

Kathy Muscari 

Effie Smith

Carole Glover

Linda Corey

Mike Finkle

Sally Zinman

Molly Cisco

Alan Green

877-246-9058

www.NCMHR.org

May 3, 2010

Internal Revenue Service

Department of the Treasury

Employee Benefits Security Administration

Department of Labor

Centers for Medicare and Medicaid Services

Department of Health and Human Services

Re: Interim Final Rules under the Paul Wellstone and Pete Domenici Mental 

Health Parity and Addiction Equity Act of 2008 

(published in 75 Fed. Reg. 5410 et seq.)

VIA EMAIL: E-OHPSCA.EBSA@dol.gov

To the Departments:

The National Coalition for Mental Health Recovery (NCMHR), representing tens 

of thousands of people with psychiatric histories across the United States, 

appreciates the opportunity to comment on the interim final rules (IFR) for the 

Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act 

of 2008 (MHPAEA), as published in the February 2, 2010, Federal Register. With 

the passage of the MHPAEA, we believe that Congress has taken an important 

step forward to end health insurance benefits discrimination against people 

needing and seeking coverage for mental health and substance use services, and 

we are pleased that the IFR implements the law to its full extent.

Below, we have addressed some of our major areas of concern.

1. The rules do not apply to employers with fewer than 50 employees which is a 

significant portion of the U.S. working population. If small employers are not 

required to provide parity in insurance coverage, persons in recovery from mental 

illnesses will be severely limited in their employment options. We urge the 

Departments to consider including small employers in the rules. To those who 

might believe that this would unduly raise insurance costs, we would point out that 

a large majority of persons who have medical insurance do not need to use 

behavioral health benefits, even if offered within their coverage. 
National Coalition for Mental Health Recovery Page 2

2. The language chosen to describe the scope of services is inappropriate. 

Even the Social Security Advisory Board Report, September 2006, states that we need to redefine 

disability. The report concluded, “A new system must support an integrated approach providing 

an alternate path directed to economic self-sufficiency, independence, and community inclusion.”

Parity opens up access so that individuals with mental health problems may seek affordable 

services, treatment, and supports that are essential to recovery and to community integration. The 

more integrated people are into the life of the community – such as advancing their education, 

living in safe, affordable housing, and entering the workplace – the fewer public entitlements they 

will need.

The federal definition of medical necessity is no longer appropriate since we now know that 

people recover from even the most severe states of emotional distress, often referred to as mental 

illness. The definition should be amended to include recovery and community integration for 

persons with long-term mental health problems.

The rules use the term “generally accepted medical standards” and other ambiguous terminology. 

There are many conditions and many effective services and supports that do not fit into the 

category of “generally accepted medical standards.” Mental health recovery cannot be measured 

simply by a reduction in symptoms. The United States Department of Health and Human 

Services, Substance Abuse and Mental Health Services Administration (SAMHSA), defines 

mental health rcovery as “ a journey of healing and transformation enabling a person with a 

mental health problem to live a meaningful life in a community of his or her choice while striving 

to achieve his or her full potential.” Further, SAMHSA identified ten fundamental components of 

recovery: Self-Direction, Individualized and Person- Centered, Empowerment, Holistic, NonLinear, Strengths-Based, Peer Support, Respect, Responsibility, and Hope. These components 

lead to resiliency in persons dealing with the challenges all people face. Federal medical 

standards have lagged far behind the innovations and extraordinary successes in the mental 

health/substance use disorder arena, including significant cost-saving applications, that have been 

achieved across the U.S. We urge the Departments to consider expanding this language to include 

other standards of care that are not solely based on medical definitions, interventions or 

outcomes. We urge the Departments to consider allowances that promote flexibility in assessing, 

planning and measuring services and outcomes. Recovery practitioners and researchers have 

defined several evidenced-based practices and emerging practices, and we urge the Departments 

to include these and other promising practices within the scope of services and to require plans 

and States to learn how these practices are designed, administered, delivered, funded and 

measured. For example, these include, but are not limited to, consumer-run alternatives to 

psychiatric hospitalization, which have proven effectiveness and save many millions of dollars 

per year in the U.S. 

3. We have concerns about the limitations of appropriate and cost-effective services within the 

required six broad categories of benefits – inpatient in-network, inpatient out-of-network, 

outpatient in-network, outpatient out-of network, emergency care and prescription drugs. States 

or health plans offering mental health/substance use disorder (MH/SUD) benefits must offer 

benefits in each classification for which any medical benefits are provided. Unfortunately, the 

scope of services for substance use disorders (SUD) or mental health (MH) benefits are not 
National Coalition for Mental Health Recovery Page 3

specified; this, therefore, permits States and group health plans to define the services 

covered in the benefit packages. Ancillary services considered essential to recovery are not 

specifically referenced in the rules. For example, respite care, warm lines, overnight hold 

beds, crisis diversion facilities, and residential support services are not addressed in the 

current rules. If the scope of services is left to States and health plans, we have serious 

concerns that such services will not be included, unnecessary costs will be incurred, and 

individuals will experience gaps in support, ultimately compromising their overall health.

4. Psychiatric hospitalization is not an evidence-based practice. We recommend that all 

possible non-coercive steps be taken to demonstrate that other avenues have been tried prior 

to hospitalization. We urge increasing the creation of alternatives to hospitalization to 

minimize force and cut costs.

We have concerns about the application of the MHPAEA to nonquantitative treatment 

limitations particularly as to what is considered “clinically appropriate standards of care,” 

and we urge an expansion of this definition to include evidence-based practices and other 

promising practices that have been researched and found to be effective.

The IFR requires that a group health plan may not impose a nonquantitative treatment 

limitation with respect to mental health or substance use disorder benefits in any 

classification unless, under the terms of the plan, “...any processes, strategies, evidentiary 

standards, or other factors used in applying the nonquantitative treatment limitation to 

mental health or substance use disorder benefits in the classification are comparable to, and 

are applied no more stringently than, the processes, strategies, evidentiary standards, or 

other factors used in applying the limitation with respect to medical/surgical benefits in the 

classification, except to the extent that recognized clinically appropriate standards of care 

may permit a difference.” 

The essence of parity, although not explicitly included in the IFR, is interpreted to mean that 

medical care is voluntary. It is not forced onto individuals but, rather, it is a choice by the 

individual or family, and protected by law. However, because of the pervasive abrogation of 

individuals’ civil rights – even a person accused of serious criminal behavior is given 

greater legal protection and due process than a person diagnosed with mental illness – these 

issues are not being properly considered by the courts (Gottstein, 25 Alaska L. Rev. 51 

[2008]; see, also Perlin, 42 San Diego L. Rev. 735, [2005]; and Morris, 42 San Diego L. 

Rev. 757, 772–74 [2005]). Research clearly shows that forcing patients to take medication 

is not supported by clinical evidence (Jarrett et al., Coerced medication in psychiatric 

inpatient care: literature review, Journal of Advanced Nursing, 538-548, Dec. 2008), and 

that coercive interventions are routinely traumatizing to the individuals they purport to help 

and make people fearful of seeking treatment (Campbell and Schraiber, In Pursuit of 

Wellness: The Well-Being Project, 1989). In addition, involuntary interventions are a poor 

substitute for building recovery-focused, culturally attuned, community-based mental health 

and social support services.

The IFR does not address the coverage, or lack of coverage, for involuntary “treatment” 

interventions. The National Coalition for Mental Health Recovery (NCMHR) supports 
National Coalition for Mental Health Recovery Page 4

minimizing the use of intrusive, coercive or mandated involuntary “interventions.” While 

we recognize the need for the system to have the capacity to detain persons who pose an 

imminent threat to self or others, we urge the respect for human and civil rights so that the 

intent of parity respects the dignity of individual choice to the maximum extent feasible. 

The Departments are encouraged to include, within the scope of services and clinically 

appropriate standards of care, alternatives to forced interventions and coercion, including 

coverage for peer-run alternatives, and promising as well as evidence-based practices. 

5. We agree with and support the parity standard devised by the Departments as one that 

ensures that mental health and substance use benefits are not discriminated against in health 

plan benefit design.

We believe that the parity standard devised by the Departments fully and appropriately 

implements the statutory requirement in the MHPAEA. Specifically, the IFR reflects the 

MHPAEA requirement that a group health plan that provides both medical/surgical and 

mental health/substance use disorder benefits must ensure that the financial requirements 

and treatment limitations applicable to mental health/substance use disorder benefits are no 

more restrictive than those requirements or limitations placed on medical/surgical benefits.

The Departments essentially keep in place the current parity standard, effective since 1998, 

as it applies to annual and lifetime dollar limits. We agree and support retention of this 

standard for annual and lifetime dollar limits.

For all other financial requirements and quantitative treatment limitations, the Departments 

employ a two-step test, based on the statutory language of the MHPAEA. The first step is to 

determine whether the type of financial requirement or quantitative treatment limitation 

applies to substantially all – meaning two-thirds – of all medical/surgical benefits in a 

classification. If not, the requirement or limitation cannot be applied to mental 

health/substance use disorder benefits. If it is applied to substantially all medical/surgical 

benefits, then the second step is applied to determine the predominant level – meaning the 

level that applies to more than one-half of the medical/surgical benefits. The predominant 

level may be applied to mental health/substance use disorder benefits. This level may be 

reached by a combination of levels, the least restrictive of which is then applied.

This second step – applying the predominant level – is necessary for some financial 

requirements and treatment limitations. The Mental Health Parity Act of 1996 provided 

parity only for annual and lifetime dollar limits. These are relatively simple financial 

requirements imposed by health plans or coverage, since plans generally do not apply a 

limit or have a single limit for the entire benefit.

The concept of the “predominant” level was necessary to address the greater complexity 

associated with a broader range of financial requirements or treatment limitations where 

there may be a number of varying levels associated with a particular financial requirement 

or treatment limitation. For example, while most health plans have a single lifetime limit 

that applies to its medical/surgical benefits, it may impose several levels of copayment 

requirements that are applied to various services, such as primary physician, specialty, 
National Coalition for Mental Health Recovery Page 5

chiropractic, physical therapy and various other services.

In implementation of the parity standard with regard to these more complex financial 

requirements and treatment limitations, it is important to ensure that the predominant level is 

employed so that mental health and substance use disorder services are compared to the 

prevailing or common financial requirements or treatment limitations imposed on 

medical/surgical services. Mental health and substance use disorder services should not be 

compared to outlier requirements or limitations that would, in essence, allow health plans to 

avoid the intent of the law. Application of the predominant standard as provided in the IFR 

addresses our concern and will provide parity in the application of these various requirements 

and limitations to mental health and substance use disorder services.

We also appreciate the specific provision in the IFR that applies the MHPAEA to out-ofnetwork benefits, reflecting clear Congressional intent to apply parity to out-of-network 

services. This provision is particularly important for mental health professionals and their 

patients, since plan enrollees often seek out-of-network mental health services. 

6. We agree with the Departments’ determination that the MHPAEA prohibits health plans 

from applying separate deductibles, out-of-pocket maximums or other cumulative financial 

requirements on mental health/substance use disorder benefits.

We are pleased that the Departments have determined that, while the statutory language of the 

MHPAEA is not as clear with regard to separate deductibles, out-of-pocket maximums and 

other cumulative financial requirements, Congress clearly intended to completely end benefits 

discrimination against mental health and substance use disorder services in enacting the law. 

Therefore, plans that apply separate deductibles and out-of-pocket maximums have been a 

barrier to care where individuals have had to forego care when they could not meet the separate 

requirements. Prohibiting separate cumulative financial requirements will dramatically improve 

access to mental health and substance use disorder services for individuals and their families 

who need and use such services.

Sincerely,

Lauren Spiro

Director
National Coalition for Mental Health Recovery Page 6