Docket: EBSA-2009-0010 

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 

Comment On: EBSA-2009-0010-0409 

Interim Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 

2008 

Document: EBSA-2009-0010-DRAFT-0591 

Comment on FR Doc # 2010-2167 

Submitter Information 

Name: Marilyn Hillerman 

Address: 

2608 Renwick Ave 

Elk Grove, CA, 95658 

Email: marilynhillerman@yahoo.com 

Phone: 916-875-5644 

Organization: MHA 

General Comment 

April 28, 2010 

Submitted via Federal eRulemaking Portal: http://www.regulations.gov 

Office of Health Plan Standards and Compliance Assistance 

Employee Benefits Security Administration 

Department of Labor 

200 Constitution Avenue, NW 

Washington, DC 20210 

Attention: RIN 1210-AB30 

Centers for Medicare and Medicaid Services 

Department of Health and Human Services 

200 Independence Avenue, SW 

Washington, DC 20201 

Attention: CMS--4140—IFC 

Internal Revenue Service 

Department of the Treasury 

1111 Constitution Avenue, NW 

Washington, DC 20224 

Attention: REG-120692-09 

PUBLIC SUBMISSION 

As of: April 29, 2010 

Received: April 28, 2010 

Status: Pending_Post 

Tracking No. 80ae3299 

Comments Due: May 03, 2010

Submission Type: Web
Re: Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act 

of 2008; Final Rule 

To Whom It May Concern: 

Mental Health America of Northern CA appreciates the opportunity to comment on the Interim Final Rules under 

the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), published 

in the February 2, 2010 Federal Register. 

After spending many years advocating in support of federal mental health and addiction treatment parity 

legislation, we are eager to work with the agencies to ensure that the implementing regulations reflect Congress’ 

intent to prohibit discriminatory limits on mental health and substance use conditions by employer-sponsored and 

other group health plans. 

Non Quantitative Treatment Limitations 

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 conditions 

relative to the medical and surgical benefits they provide. 

Higher co-payments, deductibles, and other cost-sharing requirements, as well as restrictions on the number of 

outpatient visits and inpatient days covered are only the most obvious examples of discriminatory treatment of 

mental health and substance use care. The provisions in the interim final rules describing non quantitative 

treatment limits respond to the evidence indicating mental health and substance use benefits have historically 

been much more strictly managed than medical and surgical benefits in ways that, were they to continue, would 

circumvent congressional intent and objectives explicitly delineated in the new law. 

As the interim final rules explain, the examples of the types of treatment limitations and financial requirements 

included in the statutory provisions are illustrative and should not be interpreted as the only treatment limitations 

and financial requirements to which parity applies under the new law. Use of the term “includes” in the definitions 

of “financial requirement” and “treatment limitation” makes this point clear. 

Treatment limitations are defined in the statute as including “limits on the frequency of treatment, number of 

visits, days of coverage, or other similar limits on the scope or duration of treatment.” The non quantitative 

treatment limitations outlined in the interim final rules, including -- medical necessity standards, formulary design, 

standards for participation in provider networks, methods for determining usual, customary and reasonable 

charges, fail first and step therapy requirements, and exclusions based on failure to complete a course of 

treatment -- clearly fit within this category. This list of examples includes some of the most common methods 

used by health plans to inequitably limit mental health and substance use disorder services. 

We strongly support the provisions in the new rules clarifying that prior authorization requirements, fail first 

policies and step therapy requirements, will be subject to the protections of parity. Equally important for ensuring 

equitable coverage of mental health and substance use disorder benefits is requiring comparable standards for 

determining medical necessity or appropriateness as included in the interim final rules. 

We also strongly support applying parity to standards for provider networks including reimbursement rates. 

Offering a disproportionately limited network of providers for mental health and substance use disorder services 

compared to medical or surgical care undoubtedly results in inequitable limitations on treatment and higher 

financial requirements in the form of higher out-of-pocket costs resulting from the greater likelihood of having to 

go to an out-of-network provider. 

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. 

We also strongly support the application of parity to prohibit plans from requiring individuals to exhaust an 

employee assistance program (EAP) benefit before being eligible for mental health/substance use disorder 

benefits. Using EAPs to impede access only to other mental health or substance use benefits clearly constitutes an 

inequitable treatment limitation and should not be permitted. 
In addition, the standards used for determining whether a treatment is experimental or investigative should also 

be comparable and not more stringently applied to mental health and substance use benefits as specified in the 

interim final rules. Formulary designs and methods for determining usual, customary, and reasonable charges also 

clearly fall within the definition of treatment limitations and must be subject to the new parity requirements as a 

result. 

Applying the Parity Requirement to Non Quantitative Treatment Limitations 

In light of the more complex task of applying parity to the non quantitative treatment limitations, we appreciate 

the additional test delineated in the parity regulations to specify that any processes, strategies, evidentiary 

standards or other factors used in applying these limits must be comparable to and applied no more stringently 

for mental health and substance use conditions than for medical and surgical benefits except to the extent that 

recognized clinically appropriate standards may permit a difference. 

We do, however, urge the agencies to provide further guidance on what is meant by “recognized standards of 

care” so as to prevent this exception from becoming an unmanageable loophole in this critical requirement. 

Furthermore, we urge the agencies to clarify that the predominant and substantially all standards specified in 

MHPAEA and these new regulations also apply to non quantitative treatment limitations. The statute clearly 

requires that all treatment limitations applicable to mental health or substance use condition benefits must be no 

more restrictive than the predominant treatment limitations applied to substantially all medical and surgical 

benefits. However, the regulations could be interpreted as only requiring plans to apply the “comparable to and 

applied no more stringently than” standard to non quantitative treatment limitations. Relying only on this 

standard to implement parity with regard to these pervasive forms of treatment limitation could frustrate the 

intent of this important clarification in the regulations. Health plans, as a result, could take a highly restrictive non 

quantitative treatment limitation that only applies to a small minority of medical/surgical benefits and apply that 

highly restrictive limitation to the majority of mental health and substance use disorder benefits. 

Separate Deductibles 

We strongly support the provision in the interim final rules prohibiting separately accumulating financial 

requirements – including deductibles and quantitative treatment limits. Separate deductibles, even if they are set 

at equal levels, do not impose an equal burden on individuals with mental health or substance use conditions but 

instead an additional burden. Separately accumulating deductibles represent the type of discriminatory practice 

disadvantaging individuals in need of mental health or substance use treatment that Congress meant to remedy 

with enactment of MHPAEA. 

Moreover, the provisions in the statute prohibiting “separate cost-sharing requirements that are applicable only 

with respect to mental health or substance use disorder benefits” clearly provide statutory authority for prohibiting 

separate deductibles. 

Whether and How MHPAEA Addresses Scope of Services 

Comprehensive and thoughtful implementation of the parity requirement has led the agencies to require 

classification of benefits into six classes (i.e., inpatient in-network, inpatient out-of-network, outpatient innetwork, outpatient out-of-network, emergency care, and prescription drugs) to facilitate analysis of treatment 

limitations and financial requirements for comparable types of care. The resulting requirement that mental health 

and substance use condition services must be provided across a set of benefit classes comparable to the benefits 

provided for medical/surgical care does represent a scope of services or continuum of care that plans must 

provide on an equitable basis under the new parity law. 

As recognized in the interim final rules, standards for determining whether a service is medically necessary or too 

experimental are primary means of limiting the scope or duration of treatment and as such must be administered 

in an equitable manner in order to comply with the new parity law. Application of these standards certainly results 

in coverage of a certain scope of services or continuum of care. The regulations should specify that application of 

the parity requirements to treatment limitations, including medical necessity and evidentiary standards, should 

result in a scope of service for mental health and substance use disorders that is comparable to a medical/surgical 

continuum of care. 

Need for Further Clarification on Disclosure Requirements Regarding Medical Necessity and Coverage Denials 

With regard to medical necessity, the regulations should— 
• Set timeframes for disclosure of medical necessity criteria; 

• Include a detailed description of appeal and enforcement mechanisms with the disclosure of the medical 

necessity criteria; 

• Clarify that disclosure of the criteria used to make medical necessity determinations must include the standards 

used to determine medical necessity judgments (e.g., standard of practice, strength of the evidence base, 

definition of medical conditions); and 

• Make available to beneficiaries, upon request, the standards used to assess medical necessity for medical and 

surgical benefits. 

With regard to coverage denials, we are pleased to see the new parity regulations incorporate the requirements 

from the regulations under Employee Retirement Income Security Act (ERISA) directing, for example, that 

disclosure of reasons for denial must be automatic and free of charge, set timeframes for these disclosures, and 

outline the process for appealing coverage determinations. We urge the agencies to extend this requirement to all 

plans (not just ERISA plans) instead of merely recommending that all plans comply with these requirements. 

Need for Further Clarification on Cost Exemption 

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. 

The regulations should provide guidance on the evidence that would be required to attribute any cost increase to 

the provision of equitable services as opposed to other market conditions. 

Defining Mental Health and Substance Use Disorder Benefits 

We also support steps taken in the interim final rules to prevent plans from misclassifying mental health or 

substance use disorder benefits in order to avoid having to comply with the parity law. Requiring that mental 

health and substance use disorder benefits must be defined in accordance with generally recognized independent 

standards of current medical practice (including the Diagnostic and Statistical Manual of Mental Disorders, the 

International Classification of Diseases and state guidelines) should help to prevent any attempts to undermine 

application of the critical consumer protections called for by the parity law. 

Generalist v. Specialist Classifications 

In addition, we support the provision in the preamble to the interim final rules directing that separate 

classifications of generalists and specialists will not be permitted in determining the predominant financial 

requirement (e.g., co-pays or co-insurance) for medical and surgical benefits compared to mental health and 

substance use disorder benefits. This important component to the parity analysis will again help improve access to 

mental health care and addiction treatment by keeping co-pay and co-insurance levels comparable to general 

health care providers. We note that this direction to plans not to classify mental health and substance use 

provider in a group of specialty providers was only discussed in the preamble but not included in the actual 

regulations. We urge you to include this important provision in the interim final rules. 

Thank you for your consideration of our views. 

Sincerely, 

Marilyn Hillerman 

Adult Family Advocate 

Mental Health America of Northern CA