[Federal Register: July 22, 2005 (Volume 70, Number 140)]
[Rules and Regulations]
[Page 42276-42278]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jy05-10]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
45 CFR Part 146
[CMS-4094-F3]
RIN 0938-AN22
Amendment to the Interim Final Regulation for Mental Health
Parity
AGENCY: Centers for Medicare & Medicaid Services (CMS), DHHS.
[[Page 42277]]
ACTION: Amendment to interim final regulation.
-----------------------------------------------------------------------
SUMMARY: This document contains an amendment to the interim final
regulation that implements the Mental Health Parity Act (MHPA) to
conform the sunset date of the regulation to the sunset date of the
statute under legislation passed by the 108th Congress.
DATES: Effective date: The amendment to the regulation is effective
August 22, 2005.
Applicability dates: Under the amendment, the requirements of the
MHPA interim final regulation apply to group health plans and health
insurance issuers offering health insurance coverage in connection with
a group health plan during the period commencing August 22, 2005
through December 31, 2005. Under the extended sunset date, MHPA
requirements do not apply to benefits for services furnished after
December 31, 2005.
FOR FURTHER INFORMATION CONTACT: Dave Mlawsky, Centers for Medicare &
Medicaid Services (CMS), Department of Health and Human Services, at 1-
877-267-2323, ext. 61565.
SUPPLEMENTARY INFORMATION:
I. Background
The Mental Health Parity Act of 1996 (MHPA) was enacted on
September 26, 1996 (Pub. L. 104-204). MHPA amended the Public Health
Service Act (PHS Act) and the Employee Retirement Income Security Act
of 1974 (ERISA) to provide for parity in the application of annual and
lifetime dollar limits on mental health benefits with dollar limits on
medical/surgical benefits. Provisions implementing MHPA were later
added to the Internal Revenue Code of 1986 (Code) under the Taxpayer
Relief Act of 1997 (Pub. L. 105-34).
The provisions of MHPA are set forth in Title XXVII of the PHS Act,
Part 7 of Subtitle B of Title I of ERISA, and Chapter 100 of Subtitle K
of the Code. The Secretaries of Health and Human Services, Labor, and
the Treasury share jurisdiction over the MHPA provisions. These
provisions are substantially similar, except as follows:
The MHPA provisions in the PHS Act generally apply to health
insurance issuers that offer health insurance coverage in connection
with group health plans and to certain State and local governmental
plans. States, in the first instance, enforce the PHS Act for issuers.
Only if a State does not substantially enforce the MHPA provisions
under its insurance laws will the Department of Health and Human
Services enforce the provisions, through the imposition of civil money
penalties. Moreover, no enforcement action may be taken by the
Secretary of Health and Human Services against any group health plan
except certain State and local governmental plans.
The MHPA provisions in ERISA generally apply to all group health
plans other than governmental plans, church plans, and certain other
plans. These provisions also apply to health insurance issuers that
offer health insurance coverage in connection with those group health
plans. Generally, the Secretary of Labor enforces the MHPA provisions
in ERISA, except that no enforcement action may be taken by the
Secretary against issuers. However, individuals may generally pursue
actions against issuers under ERISA and, in some circumstances, under
State law.
The MHPA provisions in the Code generally apply to all group health
plans other than governmental plans, but they do not apply to health
insurance issuers. A taxpayer that fails to comply with these
provisions may be subject to an excise tax under section 4980D of the
Code.
II. Overview of MHPA
The MHPA provisions are set forth in section 2705 of the PHS Act,
section 712 of ERISA, and section 9812 of the Code. MHPA applies to a
group health plan (or health insurance coverage offered by issuers in
connection with a group health plan) that provides both medical/
surgical benefits and mental health benefits. MHPA's original text
included a sunset provision specifying that MHPA's provisions would not
apply to benefits for services furnished on or after September 30,
2001. On December 22, 1997, the Departments of Health and Human
Services, Labor, and the Treasury issued interim final regulations
under MHPA in the Federal Register (62 FR 66931). The interim final
regulations included this statutory sunset date.
On January 10, 2002, President Bush signed H.R. 3061 (Pub. L. 107-
116), the 2002 Appropriations Act for the Departments of Labor, Health
and Human Services, and Education (``Appropriations Act''). (During the
107th Congress, legislation was passed by the Senate to amend and
expand the substantive provisions of MHPA. This legislation was offered
as an amendment to the provisions of H.R. 3061. The Conference Report
accompanying the underlying provisions of H.R. 3061 states that instead
of the amendment proposed by the Senate, the amendment to MHPA
contained in H.R. 3061 extends the original sunset date of MHPA, so
that MHPA's provisions will not apply to benefits for services
furnished on or after December 31, 2002, H.R. Rep. 107-342, at 170
(2001)). This legislation extended MHPA's original sunset date under
the PHS Act, ERISA, and the Code, so that MHPA's provisions in all
three statutes would not sunset until December 31, 2002.
On March 9, 2002, President Bush signed H.R. 3090 (Pub. L. 107-
147), the Job Creation and Worker Assistance Act of 2002 (``Job
Creation Act''). That legislation amended section 9812 of the Code (the
mental health parity provisions), but did not amend the corresponding
MHPA provisions in the PHS Act or ERISA. The Job Creation Act extended
the sunset date under the Code to December 31, 2003.
On December 2, 2002, President Bush signed H.R. 5716 (Pub. L. 107-
313), the Mental Health Parity Reauthorization Act of 2002. This
legislation further extended MHPA's sunset date under the PHS Act and
ERISA so that MHPA's provisions would apply to any services furnished
before December 31, 2003.
On December 19, 2003, President Bush signed S. 1929 (Pub. L. 108-
197), the Mental Health Parity Reauthorization Act of 2003. That
legislation further extends MHPA's sunset date under the PHS Act and
ERISA so that MHPA's provisions apply to any services furnished before
December 31, 2004.
As a result of those pieces of legislation, the Department
published conforming changes to the interim final mental health parity
regulations, conforming the regulatory sunset date to the new statutory
sunset date. The Department also made conforming changes extending the
duration of the increased cost exemption to be consistent with the new
sunset date (68 FR 38206, June 27, 2003).
On October 4, 2004, President Bush signed H.R. 1308 (Pub. L. 108-
311), the Working Families Tax Relief Act of 2004. That legislation
further extends MHPA's sunset date under the PHS Act and ERISA so that
MHPA's provisions apply to any services furnished through December 31,
2005. It also extends MHPA's sunset date under the Tax Code so that
MHPA's provisions apply to any services furnished from October 4, 2002,
through December 31, 2005.
This statutory amendment has not altered MHPA's scope. It continues
to apply to a group health plan (or health insurance coverage offered
by issuers in connection with a group health plan) that provides both
medical/surgical benefits and mental health benefits. (The parity
requirements under MHPA,
[[Page 42278]]
the interim regulations, and the amendment to the interim regulations
do not apply to any group health plan (or health insurance coverage
offered in connection with a group health plan) for any plan year of a
small employer. The term ``small employer'' is defined as an employer
who employed an average of at least 2 but not more than 50 employees on
business days during the preceding calendar year and who employs at
least 2 employees on the first day of the plan year.) As a result of
this statutory amendment, and to assist employers, plan sponsors,
health insurance issuers, and workers, the Department is publishing
this amendment to the interim final regulations, conforming the
regulatory sunset date to the new statutory sunset date. The Department
is making the effective date of this amendment to the interim final
regulations effective as of August 22, 2005. Since the extension of
this sunset date is essentially self-implementing, this amendment to
the MHPA regulations is published on an interim final basis under
section 2792 of the PHS Act.
This amendment to the interim final regulations is adopted under
the authority contained in sections 2701 through 2763, 2791, and 2792
of the PHS Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-
92), as added by HIPAA (Pub. L. 104-191), and amended by MHPA (Pub. L.
104-204, as amended by Pub. L. 107-116, Pub. L. 107-313, Pub. L. 108-
197, and Pub. L. 108-311).
III. Collection of Information Requirements
This document does not impose information collection and
recordkeeping requirements. Consequently, it need not be reviewed by
the Office of Management and Budget under the authority of the
Paperwork Reduction Act of 1995.
IV. Regulatory Impact Statement
Overall Impact
We have examined the impacts of this rule as required by Executive
Order 12866 (September 1993, Regulatory Planning and Review), the
Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354),
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive
Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which
merely reassigns responsibility of duties) directs agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis (RIA) must be prepared for major rules with
economically significant effects ($100 million or more in any 1 year).
According to the terms of the Executive Order, it has been determined
that this action is not a ``significant regulatory action'' within the
meaning of the Executive Order. Rather, it is an amendment to the 1997
interim final regulations that makes no substantive changes to those
regulations, and merely extends the regulatory sunset date to conform
to the new statutory sunset date added by Public Law 108-696. Because
it is not a major rule, we are not required to perform an assessment of
the costs and savings.
The RFA requires agencies to analyze options for regulatory relief
of small businesses. For purposes of the RFA, small entities include
small businesses, nonprofit organizations, and government agencies.
Most hospitals and most other providers and suppliers are small
entities, either by nonprofit status or by having revenues of $6
million to $29 million in any 1 year. Individuals and States are not
included in the definition of a small entity. We are not preparing an
analysis for the RFA because we have determined, and we certify, that
this rule will not have a significant economic impact on a substantial
number of small entities.
Section 202 of the Unfunded Mandates Reform Act of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule that may result in expenditure in any 1 year by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $110 million. This rule will have no consequential effect on
the governments mentioned or on the private sector.
Executive Order 13132 establishes certain requirements that an
agency must meet when it publishes a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. We have reviewed this final rule and have determined that
it will not have a substantial effect on State or local governments.
We have reviewed this rule and determined that, under the
provisions of Public Law 104-121, the Contract with America Act, it is
not a major rule.
List of Subjects in 45 CFR Part 146
Health care, Health insurance, Reporting and recordkeeping
requirements, State regulation of health insurance.
0
For the reasons set forth in the preamble, the Centers for Medicare &
Medicaid Services amends 45 CFR part 146 as follows:
PART 146--REQUIREMENTS FOR THE GROUP HEALTH INSURANCE MARKET
0
1. The authority citation for part 146 is revised to read as follows:
Authority: Secs. 2701 through 2763, 2791, and 2792 of the PHS
Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as
added by HIPAA (Pub. L. 104-191, 110 Stat. 1936), and amended by
MHPA (Pub. L. 104-204, 110 Stat. 2944, as amended by Pub. L. 107-
116, 115 Stat. 2177; Pub. L. 107-313, 116 Stat. 2457; Pub. L. 108-
197, 117 Stat. 2898; and Pub. L. 108-311, 118 Stat. 1166), NMHPA
(Pub. L. 104-204, 110 Stat. 2935), and WHCRA (Pub. L. 105-277, 112
Stat. 2681-436), sec. 102(c) of HIPAA.
Sec. 146.136 [Amended]
0
2. In Sec. 146.136, the following amendments are made:
0
a. The last sentence of paragraph (f)(1) is amended by removing the
date ``December 31, 2004'' and adding in its place the date ``December
31, 2005.''
0
b. Paragraph (g)(2) is amended by removing the date ``December 31,
2004'' and adding in its place the date ``January 1, 2006.''
0
c. Paragraph (i) is revised to read as follows:
Sec. 146.136 Parity in the application of certain limits to mental
health benefits.
* * * * *
(i) Sunset. This section does not apply to benefits for services
furnished after December 31, 2005.
Dated: January 19, 2005.
Mark B. McClellan,
Administrator, Centers for Medicare & Medicaid Services.
Dated: April 11, 2005.
Michael O. Leavitt,
Secretary, Department of Health and Human Services.
[FR Doc. 05-14504 Filed 7-21-05; 8:45 am]
BILLING CODE 4120-01-P