CMSlogo.jpgFriday's announcement about the partial interim federal regulations ending discrimination for mental health and addiction disorders earned praise from advocates. Words like "applaud,"commendable" and "victories for fairness" peppered press releases from organizations working to end insurance discrimination. Rep. Patrick Kennedy, the only sitting official who co-authored the law, called it "an example of successful health insurance reform." In addition to his father, the late Sen. Edward Kennedy, two Republicans who drove this landmark bill did not seek re-election, former Sen. Pete Domenici, and former Rep. Jim Ramstad.

The work of three departments (Labor, Treasury and Health and Human Services) required reading more than 400 comments from vested parties, including individuals, advocates, and insurance companies. This contributed to a delay of the interim regulations. The law applies only to private insurance for employee-sponsored health plans for businesses with more than 50 employees.

The regulations represent the final stages of a decades-long fight, culminating in the 2008 passage of the Wellstone-Domenici Mental Health Parity and Addictions Equity Act, about what to include to end discrimination. Should there be two deductibles - one for mental health and addictive disorders, a second for medical and surgical problems? Should federal law override states with more favorable benefits? Will the costs to insurance companies outweigh the benefits of early and accessible treatment?

The answers to the last two were "no" and "no." The interim regulations (which may still be amended although it is unlikely according to people familiar with the process) will not penalize residents of states that are more favorable to the federal law. Costs to insurance companies that carve-out separate benefits will average less than one penny a year after the initial 60 cent start-up to develop a mechanism.

In explaining why the departments decided to upon a single deductible, they wrote:

The Departments carefully considered the alternative of requiring separately accumulating or combined deductibles. Given that the statutory language does not preclude either interpretation, the Departments choose to require combined deductibles, because this position is more consistent with the policy goals that led to the enactment of MHPAEA.

Analysis indicates they read widely and carefully to understand the costs and the benefits of ending discrimination that insurance companies have built into health coverage.

"comments that supported requiring combined deductibles argued that allowing separately accumulating deductibles undermines a central goal of parity legislation: to affirm that mental health and substance use disorder benefits are integral components of comprehensive health care and generally should not be distinguished from medical/surgical benefits. Distinguishing between the two requires individuals who need both kinds of care to satisfy a deductible that is greater than that required for individuals needing only medical/surgical care. Other comments that supported requiring combined deductibles noted that mental health and substance use disorder benefits typically comprise only 2 to 5 percent of a plan's costs, so that even using identical levels for separately accumulating deductibles imposes a greater barrier to mental health and substance use disorder benefits.

The departments cite the experience of nine states, and evidence from the federal government's drug policy office to conclude, "The returns on investment from treatment of substance use disorders can be large." This confirms what advocates have been arguing. Parity for Medicare became law in 2008.

Unfinished business
Not all agree this is a panacea. Atlantic blogger Megan McCardle is skeptical of a law affecting private insurance for companies with 50 or more employees: "The more likely you are to have the social or financial resources with which to obtain private insurance, the less likely you are to have the kind of severe mental illness we're worrying about."

Insurance companies and advocates disagree over two key elements -- "scope of services" and the "continuum of care" -- yet to be specified. The questions address who decides and on what basis? The American Benefits Council, which represents Fortune 500 Companies, asked that group plans have the authority "to exclude coverage for a particular mental health or substance use condition." United Health Group asked the law to allow "plans and health insurance carriers the right to define which diagnoses they will cover as mental health and substance use disorder benefits (subject to other applicable federal and state laws)"

Before writing regulations about these, the three departments will extend the comment process. They explain:

Some commenters requested, with respect to a mental health condition or substance use disorder that is otherwise covered, that the regulations clarify that a plan is not required to provide benefits for any particular treatment or treatment setting (such as counseling or non-hospital residential treatment) if benefits for the treatment or treatment setting are not provided for medical/surgical conditions. Other commenters requested that the regulations clarify that a participant or beneficiary with a mental health condition or
substance use disorder have coverage for the full scope of medically appropriate services to treat the condition or disorder if the plan covers the full scope of medically appropriate services to treat medical/surgical conditions, even if some treatments or treatment settings are not otherwise covered by the plan. Other commenters requested that MHPAEA be interpreted to require that group health plans provide benefits for any evidence-based treatment.

The Departments recognize that not all treatments or treatment settings for mental health conditions or substance use disorders correspond to those for medical/surgical conditions. The Departments also recognize that MHPAEA prohibits plans and issuers from imposing treatment limitations on mental health and substance use disorder benefits that are more restrictive than those applied to medical/surgical benefits. These regulations do not address the scope of services issue. The Departments invite comments on whether and to what extent MHPAEA addresses the scope of services or continuum of care provided by a group health plan or health insurance coverage.

These are not mere incidentals but affect nearly 140 million people. Comments may be sent to any of the departments as per instructions below:

Comments may be emailed to the federal rulemaking portal at:

•Comments directed to HHS should include the file code CMS-4140-IFC.

•Comments to the Department of Labor should be identified by RIN 1210-AB30.

•Comments to the Treasury's Internal Revenue Service should be identified by REG-120692-09.

Comments may be sent to any of the three departments and will be shared with the other departments. Please do not submit duplicates.

HHS: 202-690-6145
DOL: 202-693-8666
Treasury: 202-622-2960

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