Regulations Clarify Mental Health Parity Act

By Staff Report

Feb. 1, 2010

Employers would no longer be permitted to require separate deductibles for mental health and medical treatment under new proposed parity rules issued last week by the departments of Health and Human Services, Labor and the Treasury.

Mental health and substance abuse treatment also must be equivalent to that provided for medical and surgical care within benefit classifications and coverage tiers, such as in- and out-of-network care, emergency care and prescription drugs, according to the rules, which implement the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act. That 2008 law requires group health care plans offered by employers with more than 50 employees to provide the same coverage for mental health care services as for other medical, surgical and substance abuse services.

In addition, employee assistance programs cannot serve as gatekeepers, restricting or directing mental health care, unless a similar form of medical management is applied to medical and surgical benefits, according to benefit consultants’ preliminary interpretations of the new regulations.

“If you don’t have to jump through those hoops for medical/surgical, these regulations would prohibit this requirement for mental health and substance abuse treatment,” says Sharon Cohen, an attorney with Towers Watson in Arlington, Virginia.

Employers also cannot require employees to exhaust EAP benefits before they can access mental health care if a similar requirement does not exist for accessing medical care.

The regulations also appear to prohibit charging higher “specialist” co-payments for mental health providers.

“Our interpretation is that mental health care providers are specialists, but that does not seem to be the case in these regulations,” says Kathy Mahieu, a senior consultant in Hewitt Associates Inc.’s health management consulting practice, based in Norwalk, Connecticut.

The new regulations give employers until the first plan year beginning on or after July 1, 2010, to meet the requirements. The law took effect October 3, 2009.

The extended effective date also could give plan administrators time to develop systems for tallying up the value of mental health and substance abuse treatment and medical/surgical treatment, something that is not always done when the two benefit programs are administered separately.

“There are issues around the timeliness of sharing information. If someone gets an [explanation of benefits] that says they haven’t met their deductible because it doesn’t include the mental health care used,” then the plan would not be in compliance, according to Cohen.

Although the parity rules were developed based on the three departments’ review of more than 400 public comments received, additional comments still are being sought on such areas as “nonquantitative” treatment limits, such as precertification and utilization review; and how coverage for prescription drugs is determined, such as whether step therapy can be required for prescription drugs used to treat mental health conditions.

Comments are due May 3.

Filed by Joanne Wojcik of Business Insurance, a sister publication of Workforce Management. To comment, e-mail

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