[Federal Register: April 28, 2009 (Volume 74, Number 80)]
[Proposed Rules]
[Page 19155-19158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap09-16]
[[Page 19155]]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54
RIN 1545-BI70
DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2590
RIN 1210-AB30
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
45 CFR Parts 144 and 146
[CMS-4140-NC]
RIN 0938-AP65
Request for Information Regarding the Paul Wellstone and Pete
Domenici Mental Health Parity and Addiction Equity Act of 2008
AGENCIES: Internal Revenue Service, Department of the Treasury;
Employee Benefits Security Administration, Department of Labor; Centers
for Medicare & Medicaid Services, Department of Health and Human
Services.
ACTION: Request for Information.
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SUMMARY: This document is a request for comments regarding issues under
the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction
Equity Act of 2008 (MHPAEA). The Departments of Labor, Health and Human
Services (HHS), and the Treasury (collectively, the Departments) invite
public comments in advance of future rulemaking.
DATES: Comments must be submitted on or before May 28, 2009.
ADDRESSES: Written comments may be submitted to any of the addresses
specified below. Any comment that is submitted to any Department will
be shared with the other Departments. Please do not submit duplicates.
Department of Labor. Comments to the Department of Labor by one of
the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: E-OHPSCA.EBSA@dol.gov.
Mail or Hand Delivery: Office of Health Plan Standards and
Compliance Assistance, Employee Benefits Security Administration, Room
N-5653, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, Attention: MHPAEA Comments.
Comments received by the Department of Labor will be posted without
change to http://www.regulations.gov and http://www.dol.gov/ebsa, and
available for public inspection at the Public Disclosure Room, N-1513,
Employee Benefits Security Administration, 200 Constitution Avenue,
NW., Washington, DC 20210, including any personal information provided.
Department of HHS. Comments to the Department of HHS, identified by
CMS-4140-NC by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Centers for Medicare & Medicaid Services, Department
of Health and Human Services, Attention: CMS-4137-NC, P.O. Box 8017,
Baltimore, MD 21244-8010.
Hand or courier delivery. Comments may be delivered to
either 7500 Security Boulevard, Baltimore, MD 21244-1850 or Room 445-G,
Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington,
DC 20201. For delivery to Baltimore, please call telephone number (410)
786-7195 in advance to schedule your arrival with one of our staff
members. For delivery to Washington, because access to the interior of
the HHH Building is not readily available to persons without Federal
Government identification, commenters are encouraged to leave their
comments in the CMS drop slots located in the main lobby of the
building. A stamp-in clock is available for persons wishing to retain
proof of filing by stamping in and retaining an extra copy of the
comments being filed.
Inspection of Public Comments. All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all electronic
comments received before the close of the comment period on the
following public Web site as soon as possible after they have been
received: http://www.regulations.gov. Follow the search instructions on
that Web site to view public comments.
Comments received timely will be available for public inspection as
they are received, generally beginning approximately 3 weeks after
publication of a document, at the headquarters of the Centers for
Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore,
Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4
p.m. To schedule an appointment to view public comments, call 1-800-
743-3951.
Internal Revenue Service. Comments to the IRS, identified by REG-
120692-09 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: CC:PA:LPD:PR (REG-120692-09), Room 5205, Internal
Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC
20044.
Hand or courier delivery: Monday through Friday between
the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-120692-09),
Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue,
NW., Washington DC 20224.
All submissions to the IRS will be open to public inspection and
copying in room 1621, 1111 Constitution Avenue, NW., Washington, DC
from 9 a.m. to 4 p.m.
FOR FURTHER INFORMATION CONTACT: Mark Connor or Beth Baum, Employee
Benefits Security Administration, Department of Labor, at (202) 693-
8335; Russ Weinheimer, Internal Revenue Service, Department of the
Treasury, at (202) 622-6080; Adam Shaw, Centers for Medicare & Medicaid
Services, Department of Health and Human Services, at (877) 267-2323
extension 61091.
Customer Service Information: Individuals interested in obtaining
information from the Department of Labor concerning employment-based
health coverage laws, including the nondiscrimination protections, may
call the EBSA Toll-Free Hotline at 1-866-444-EBSA (3272) or visit the
Department of Labor's Web site (http://www.dol.gov/ebsa). In addition,
individuals may request a copy of CMS's publication entitled
``Protecting Your Health Insurance Coverage'' by calling 1-800-633-
4227.
SUPPLEMENTARY INFORMATION:
I. Background
The Paul Wellstone and Pete Domenici Mental Health Parity and
Addiction Equity Act of 2008 (MHPAEA) was enacted on October 3, 2008 as
sections 511 and 512 of the Tax Extenders and Alternative Minimum Tax
Relief Act of 2008 (Division C of Pub. L. 110-343).\1\ MHPAEA amends
the Employee Retirement Income Security Act of 1974 (ERISA), the Public
[[Page 19156]]
Health Service Act (PHS Act), and the Internal Revenue Code of 1986
(Code). In 1996, Congress enacted the Mental Health Parity Act of 1996
(MHPA 1996), which required parity in aggregate lifetime and annual
dollar limits for mental health benefits and medical and surgical
benefits. These group market mental health parity provisions were
codified in section 712 of ERISA, section 2705 of the PHS Act, and
section 9812 of the Code. The enactment of MHPAEA created new
requirements and amended several of the existing group market mental
health parity provisions.
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\1\ A technical correction to the effective date for
collectively bargained plans was made by Public Law 110-460.
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MHPAEA modifies the original definition of mental health benefits
created by MHPA 1996 and adds a definition of substance use disorder
benefits. Mental health benefits are defined as benefits with respect
to services for mental health conditions, defined under the terms of
the plan and in accordance with applicable Federal and State law.
Substance use disorder benefits are defined as benefits with respect to
services for substance use disorders, as defined under the terms of the
plan and in accordance with applicable Federal and State law.
While retaining MHPA 1996's requirements for parity in the
application of aggregate lifetime and annual dollar limits, MHPAEA adds
new requirements. For group health plans (and health insurance coverage
offered in connection with group health plans) that provide both
medical and surgical benefits and mental health or substance use
disorder benefits, MHPAEA requires plans or coverage to ensure that:
(1) The financial requirements (including deductibles, copayments,
coinsurance, and out-of-pocket expenses, but excluding aggregate
lifetime limits and annual limits (which are subject to MHPA 1996's
existing requirements)) applicable to such mental health or substance
use disorder benefits are no more restrictive than the predominant
financial requirements applied to substantially all medical and
surgical benefits covered by the plan; (2) there are no separate cost-
sharing requirements that are applicable only with respect to mental
health or substance use disorder benefits; (3) the treatment
limitations (including limits on the frequency of treatment, number of
visits, days of coverage, or other similar limits on the scope or
duration of treatment) applicable to such mental health or substance
use disorder benefits are no more restrictive than the predominant
treatment limitations applied to substantially all medical and surgical
benefits covered by the plan; and (4) there are no separate treatment
limitations that are applicable only with respect to mental health or
substance use disorder benefits. A financial limit or treatment limit
is considered to be predominant under MHPAEA if it is the most common
or frequent of such type of limit or requirement.
MHPAEA requires the criteria for medical necessity determinations
made under the plan (or coverage) with respect to mental health or
substance use disorder benefits be made available by the plan
administrator (or health insurance issuer) in accordance with
regulations to any current or potential participant, beneficiary, or
contracting provider upon request. The reason for any denial under the
plan (or coverage) of reimbursement or payment for services with
respect to mental health or substance use disorder benefits in the case
of any participant or beneficiary must, on request or as otherwise
required, be made available by the plan administrator (or issuer) to
the participant or beneficiary in accordance with regulations.
Under MHPAEA, in the case of a plan or issuer that provides both
medical and surgical benefits and mental health or substance use
disorder benefits, if the plan or issuer provides coverage for medical
or surgical benefits provided by out-of-network providers, the plan or
issuer must provide coverage for mental health or substance use
disorder benefits provided by out-of-network providers in a manner that
is consistent with the requirements of MHPAEA and MHPA 1996.
MHPAEA amended the two exemptions in subsection (c) of the group
market mental health parity provisions. MHPAEA exempts group health
plans (or health insurance coverage offered in connection with such a
plan) of a small employer from the requirements of the group market
mental health parity provisions for any plan year. A small employer is
defined as an employer who employed an average of at least two (or one
in the case of an employer residing in a State that permits small
groups to include a single individual) but not more than 50 employees
on business days during the preceding calendar year.
MHPAEA also exempts group health plans (or health insurance
coverage offered in connection with such a plan) from the requirements
of the group market mental health parity provisions if application of
the group market mental health parity provisions results in an increase
for the plan year involved of the actual total costs of coverage with
respect to medical and surgical benefits and mental health and
substance use disorder benefits by an amount that exceeds two percent
for the first plan year in which the law applies and one percent for
each subsequent plan year. In this case, the requirements of the group
market mental health parity provisions do not apply to the plan or
coverage during the following plan year, and such exemption applies for
one plan year. Of course, an employer may elect to continue to apply
mental health and substance use disorder parity with respect to the
group health plan (or coverage) involved regardless of any increase in
total costs.
Under this cost exemption, determinations as to increases in actual
costs under a plan must be made and certified by a qualified and
licensed actuary who is a member in good standing of the American
Academy of Actuaries. Exemption determinations must be in a written
report prepared by the actuary, which must be maintained by the plan or
issuer for six years following the notification of election to
implement the exemption. Determinations are to be made after the plan
has complied with the requirements of the group market mental health
parity provisions for the first six months of the plan year involved.
A plan or issuer that qualifies for and elects to implement the
cost exemption must promptly notify the Secretaries of Labor, Health
and Human Services, and the Treasury (as appropriate), the appropriate
state agencies, and participants and beneficiaries in the plan. The
notifications to the Secretaries, which are confidential, must include
a description of (1) The number of covered lives under the plan (or
coverage) involved at the time of the notification (and, as applicable,
at the time of any prior election of the cost exemption by the plan or
coverage); (2) a description of the actual total costs of coverage with
respect to medical and surgical benefits and mental health and
substance use disorder benefits under the plan (for both the plan year
upon which a cost exemption is sought and the year prior); and (3) the
actual total costs of coverage with respect to mental health and
substance use disorder benefits under the plan (for both the plan year
upon which a cost exemption is sought and the year prior). The
Secretaries must make available upon request, but no more frequently
than annually, an anonymous itemization of these notifications,
including a breakdown of States by the size and type of employers
submitting the notification and a summary of the data received. The
Secretaries and the appropriate state agencies are authorized by MHPAEA
to audit the
[[Page 19157]]
books and records of a group health plan, or health insurance issuer
offering coverage in connection with a plan, relating to an exemption.
As enacted, MHPA 1996 included a sunset provision. This provision
was amended several times to extend the sunset date, most recently to
December 31, 2008. MHPAEA eliminates the sunset provision, effective
January 1, 2009. Thus, the requirements of MHPA 1996 will remain in
place, except as modified by MHPAEA. Generally, the provisions of
MHPAEA apply for plan years beginning after October 3, 2009 (for
calendar year plans, January 1, 2010).
There is a special effective date rule for group health plans
maintained pursuant to one or more collective bargaining agreements
(collectively bargained plans) ratified before October 3, 2008 (the
date of the enactment of MHPAEA). Under the special rule, MHPAEA's
requirements will not apply to plan years beginning before the later of
either the date on which the last of the collective bargaining
agreements relating to the plan terminates (determined without regard
to any extension agreed to after October 3, 2008), or January 1,
2010.\2\ Any plan amendment made pursuant to a collective bargaining
agreement solely to conform to requirements added by MHPAEA is not
treated as a termination of the agreement.
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\2\ This date was changed from January 1, 2009 to January 1,
2010 by Public Law 110-460, enacted on December 23, 2008.
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II. Solicitation of Comments
A. Comments Regarding Economic Analysis, Paperwork Reduction Act, and
Regulatory Flexibility Act
Executive Order 12866 requires an assessment of the anticipated
costs and benefits of a significant rulemaking action and the
alternatives considered, using the guidance provided by the Office of
Management and Budget. These costs and benefits are not limited to the
Federal government, but pertain to the affected public as a whole.
Under Executive Order 12866, a determination must be made whether
implementation of MHPAEA will be economically significant. A rule that
has an annual effect on the economy of $100 million or more is
considered economically significant.
In addition, the Regulatory Flexibility Act may require the
preparation of an analysis of the economic impact on small entities of
proposed rules and regulatory alternatives. An analysis under the
Regulatory Flexibility Act must generally include, among other things,
an estimate of the number of small entities subject to the regulations
(for this purpose, plans, employers, and issuers and, in some contexts
small governmental entities), the expense of the reporting,
recordkeeping, and other compliance requirements (including the expense
of using professional expertise), and a description of any significant
regulatory alternatives considered that would accomplish the stated
objectives of the statute and minimize the impact on small entities.
The Departments consider a small entity to be an employee benefit plan
with fewer than 100 participants.
The Paperwork Reduction Act requires an estimate of how many
``respondents'' will be required to comply with any ``collection of
information'' requirements contained in regulations and how much time
and cost will be incurred as a result. A collection of information
includes recordkeeping, reporting to governmental agencies, and third-
party disclosures. The Departments have current approval for
information collection requirements related to the increased cost
exemption under MHPA 1996.
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 1996, and, if so, what estimated
hours and costs are associated with those additional burdens?
B. Comments Regarding Regulatory Guidance
The Departments are seeking comments to aid in the development of
regulations regarding MHPAEA. To assist interested parties in
responding, this request for information describes specific areas in
which the Departments are particularly interested; however, the
Departments also request comments and suggestions concerning any area
or issue pertinent to the development of regulations.
Specific Areas in Which the Departments Are Interested Include the
Following:
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
[[Page 19158]]
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?
Signed at Washington, DC, this 24th day of December 2008.
Nancy J. Marks,
Division Counsel/Associate Chief Counsel, Tax Exempt and Government
Entities, Internal Revenue Service, Department of the Treasury.
Signed at Washington, DC, this 12th day of January 2009.
W. Thomas Reeder,
Benefits Tax Counsel, Department of the Treasury.
Signed at Washington, DC, this 21st day of April 2009.
Alan D. Lebowitz,
Deputy Assistant Secretary for Program Operations, Employee Benefits
Security Administration, U.S. Department of Labor.
Dated: March 9, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. E9-9629 Filed 4-27-09; 8:45 am]
BILLING CODE 4830-01-P