May 3, 2010

Office of Health Plan Standards and Compliance Assistance

Employee Benefits Security Administration, Room N–5653 

U.S. Department of Labor 

Attention: RIN 1210–AB30

200 Constitution Avenue, NW. 

Washington, DC 20210

Centers for Medicare & Medicaid Services

U.S. Department of Health and Human Services

Attention: CMS–4140–IFC 

P.O. Box 8016

Baltimore, MD 21244–1850

CC:PA:LPD:PR (REG–120692–09), Room 5205

Internal Revenue Service

P.O. Box 7604

Ben Franklin Station 

Washington, DC 20044

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

Parity and Addiction Equity Act of 2008

Dear Secretary Solis, Secretary Sebelius, and Commissioner Shulman:

The Association for Behavioral Healthcare (ABH), formerly Mental Health and Substance Abuse 

Corporations of Massachusetts, is a statewide association representing ninety-one communitybased mental health and substance abuse provider organizations. Our members are the primary 

providers of publicly-funded behavioral healthcare services in the Commonwealth, serving 

approximately 117,000 Massachusetts residents daily and employing 22,000 people. On behalf of 

the membership of ABH, thank you for the opportunity to provide comments on the Interim Final 

Rules (IFR) under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity of 2008 (MHPAEA).

1

ABH recognizes that a great deal of work and analysis has gone into the Interim Final Rules and 

commends the Departments for their efforts to ensure the Act is implemented in a manner that will 

convey strong parity protections consistent with the intent of Congress. The Interim Final Rule is 

consistent with the MHPAEA statute and Congress’s goals of eliminating discrimination in group 

 

 1 75 Fed. Reg. 5410 (Feb. 2, 2010).
health plan coverage of mental health and substance use disorder and mental health treatment 

benefits and improving access to care.

State Laws

Many states, including Massachusetts, have implemented their own mental health parity laws. 

ABH strongly supports the IFR’s interpretation that state parity laws with stronger protections than 

those contained in the MHPAEA will not ordinarily be preempted by the Act. State insurance 

commissioners need continued guidance from the Departments to ensure the greatest compliance

with the MHPAEA. In particular, although the IFR preamble affirms that the MHPAEA does not 

preempt any state laws except those that would prevent the application of the MHPAEA, 

additional education and outreach is needed to ensure that managed care organizations continue to 

comply with state laws that provide greater protections than the MHPAEA.

The operative issue in determining whether a state parity law is preempted is not whether the law 

is weaker or stronger than MHPAEA, but rather whether the state law acts to “prevent the 

application” of MHPAEA.”2

 The regulations state that MHPAEA requirements are not to be 

“construed to supersede any provision of state law...except to the extent that such standard or 

requirement prevents the application of a requirement of MHPAEA.”3 For example, a state law 

that mandates that an insurer offer a minimum dollar amount of mental health/substance use 

disorder benefits “does not prevent the application of MHPAEA.” This is presumably because, 

even with the minimum dollar amount requirement, the plan could still provide (and would be 

required to provide) parity between mental health/substance use disorder and medical/surgical 

benefits. The regulations specify that state insurance laws that are stronger than the federal 

requirements are unlikely to prevent the application of MHPAEA and be preempted.4 

Accordingly, “States have significant latitude to impose requirements on health insurance issuers 

that are more restrictive than the federal law.”5 ABH strongly supports this interpretation of the 

Act, and requests that it be included in the Final Rules.

Quantitative and Non-quantitative Treatment Limitations in the IFR

The IFR’s inclusion of both quantitative and non-quantitative treatment limitations in the 

MHPAEA parity analysis is fully within the scope of the MHPAEA and is consistent with the 

statute and its legislative history.

Limiting the scope of the MHPAEA analysis solely to day or visit limits or frequency of treatment 

limits would not achieve the legislation’s intended result of ensuring that substance use disorders 

and mental health benefits are not provided in a more restrictive way than benefits for other 

medical and surgical procedures. In Massachusetts, state parity laws have been applied mainly 

with regard to prohibitions on benefit limits. However, medical management tools, identified in the 

IFR as non-quantitative treatment limitations (NQTLs), are a fundamental means through which 

plans limit treatment. In Massachusetts, plans are currently using NQTLs as a way to limit 

 2 75 Fed. Reg. 5418.

3 Id. 

4 75 Fed. Reg. 5430.

5 Id. 
treatment. For example, plans use utilization management, medical necessity criteria, “fail first” 

requirements, and prior authorization requirements to limit access to certain behavioral health 

treatment. NQTLs were determined by both Congress and the regulators as a form of treatment 

limitation as defined under the law and hence subject to the purview of the statute and regulations. 

Application of the MHPAEA to Medicaid Managed Care Plans

ABH strongly urges the Centers for Medicare and Medicaid Services (CMS) to issue guidance 

clarifying that the IFR applies to Medicaid managed care plans. There is no rationale for a 

separate, different parity standard for Medicaid managed care plans. 

The MHPAEA statute and its legislative history do not include any distinction between how the 

law applies to group health plans and Medicaid managed care plans. The IFR implements the 

MHPAEA, and Medicaid managed plans must adhere to the MHPAEA. As such, Medicaid 

managed plans must comply with the IFR.

Until CMS affirms that the IFR applies to Medicaid managed care plans, there will likely be 

significant confusion as the MHPAEA is implemented for Medicaid managed care plans. In 

Massachusetts, Medicaid managed care plans are already stating that federal parity does not apply 

to these plans. The MHPAEA is in effect, and guidance is quickly needed to ensure the Medicaid 

managed care plans comply with the requirements of the current law.

Recognized Standards of Care and Scope of Services

The IFR includes a number of references to “generally recognized independent standards of 

current medical practice” and the need for managed care organizations to use these standards in 

making decisions about coverage for mental health and substance use disorders. The substance use 

disorder treatment field has a body of widely accepted standards of care and evidence-based 

practices for the treatment of substance use disorders. In providing additional guidance to plans on 

standards of care and the scope of services covered in substance use disorder treatment benefits, 

the Departments should adopt these recognized best practices and standards so that plan decisions 

best reflect recognized clinically appropriate standards of care for substance use disorder 

treatment.

Thank you for your consideration.

Sincerely,

Vicker V. DiGravio III

President/CEO