Act by May 28 to Submit Employer Comments on Mental Health Parity

Employers still have an opportunity to shape the finer details of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), which amended the Mental Health Parity Act of 1996 (MHPA).

Most employers, operating with calendar-year health plans, must comply with the new parity law beginning January 1, 2010. Congress has finished its work, but three federal agencies are now charged with developing implementing regulations, and they are obligated to seek and respond to public input. This is more than a formality. Implementing regulations can have tremendous impact on the way a law is enforced, and how much burden it places on employers.

The Internal Revenue Service, the Employee Benefits Security Administration, and the Centers for Medicare & Medicaid Services (parts of the Departments of Treasury, Labor and Health and Human Services, respectively) have requested comments about issues related to the new MHPAEA law. Comments are due on or before May 28, 2009.

 The Departments are requesting comments that may contribute to the analyses that will be performed under these requirements, both generally and with respect to the following specific areas:

• (i) What policies, procedures, or practices of group health plans and health insurance issuers may be impacted by MHPAEA? What direct or indirect costs would result? What direct or indirect benefits would result? Which stakeholders will be impacted by such benefits and costs?
• (ii) Are there unique costs and benefits for small entities subject to MHPAEA (that is, employers with greater than 50 employees that maintain plans with fewer than 100 participants)? What special consideration, if any, is needed for these employers or plans? What costs and benefits have issuers and small employers experienced in implementing parity under State insurance laws or otherwise?
• (iii) Are there additional paperwork burdens related to MHPAEA compared to those related to MHPA, and, if so, what estimated hours and costs are associated with those additional burdens?

The Departments are seeking comments to aid in the development of regulations under MHPAEA.  Among the specific areas of interest:

• 1. The statute provides that the term “financial requirement” includes deductibles, copayments, coinsurance, and out-of-pocket expenses, but excludes an aggregate lifetime limit and an annual limit. The statute further provides that the term “treatment limitation” includes limits on the frequency of treatment, number of visits, days of coverage, or other similar limits on the scope or duration of treatment. Do plans currently impose other types of financial requirements or treatment limitations on benefits? How do plans currently apply financial requirements or treatment limitations to (1) medical and surgical benefits and (2) mental health and substance use disorder benefits? Are these requirements or limitations applied differently to both classes of benefits? Do plans currently vary coverage levels within each class of benefits?
• 2. What terms or provisions require additional clarification to facilitate compliance? What specific clarifications would be helpful?
• 3. What information, if any, regarding the criteria for medical necessity determinations made under the plan (or coverage) with respect to mental health or substance use disorder benefits is currently made available by the plan? To whom is this information currently made available and how is it made available? Are there industry standards or best practices with respect to this information and communication of this information?
• 4. What information, if any, regarding the reasons for any denial under the plan (or coverage) of reimbursement or payment for services with respect to mental health or substance use disorder benefits is currently made available by the plan? To whom is this information currently made available and how is it made available? Are there industry standards or best practices with respect to this information and communication of this information?
• 5. To gather more information on the scope of out-of-network coverage, the Departments are interested in finding out whether plans currently provide out-of-network coverage for mental health and substance use disorder benefits. If so, how is such coverage the same as or different than out-of-network coverage provided for medical and surgical benefits?
• 6. Which aspects of the increased cost exemption, if any, require additional guidance? Would model notices be helpful to facilitate disclosure to Federal agencies, State agencies, and participants and beneficiaries regarding a plan’s or issuer’s election to implement the cost exemption?

Comments may be submitted to the Department of Labor via email to E-OHPSCA.EBSA@dol.gov.  The Department of Labor will share the comments with the other Departments.