[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 558 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
110th CONGRESS
  1st Session
                                 S. 558

_______________________________________________________________________

                                 AN ACT


 
 To provide parity between health insurance coverage of mental health 
        benefits and benefits for medical and surgical services.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Mental Health Parity Act of 2007''.

SEC. 2. MENTAL HEALTH PARITY.

    (a) Amendments of ERISA.--Subpart B of part 7 of title I of the 
Employee Retirement Income Security Act of 1974 is amended by inserting 
after section 712 (29 U.S.C. 1185a) the following:

``SEC. 712A. MENTAL HEALTH PARITY.

    ``(a) In General.--In the case of a group health plan (or health 
insurance coverage offered in connection with such a plan) that 
provides both medical and surgical benefits and mental health benefits, 
such plan or coverage shall ensure that--
            ``(1) the financial requirements applicable to such mental 
        health benefits are no more restrictive than the financial 
        requirements applied to substantially all medical and surgical 
        benefits covered by the plan (or coverage), including 
        deductibles, copayments, coinsurance, out-of-pocket expenses, 
        and annual and lifetime limits, except that the plan (or 
        coverage) may not establish separate cost sharing requirements 
        that are applicable only with respect to mental health 
        benefits; and
            ``(2) the treatment limitations applicable to such mental 
        health benefits are no more restrictive than the treatment 
        limitations applied to substantially all medical and surgical 
        benefits covered by the plan (or coverage), including limits on 
        the frequency of treatment, number of visits, days of coverage, 
        or other similar limits on the scope or duration of treatment.
    ``(b) Clarifications.--In the case of a group health plan (or 
health insurance coverage offered in connection with such a plan) that 
provides both medical and surgical benefits and mental health benefits, 
and complies with the requirements of subsection (a), such plan or 
coverage shall not be prohibited from--
            ``(1) negotiating separate reimbursement or provider 
        payment rates and service delivery systems for different 
        benefits consistent with subsection (a);
            ``(2) managing the provision of mental health benefits in 
        order to provide medically necessary services for covered 
        benefits, including through the use of any utilization review, 
        authorization or management practices, the application of 
        medical necessity and appropriateness criteria applicable to 
        behavioral health, and the contracting with and use of a 
        network of providers; and
            ``(3) applying the provisions of this section in a manner 
        that takes into consideration similar treatment settings or 
        similar treatments.
    ``(c) In- and Out-of-Network.--In the case of a group health plan 
(or health insurance coverage offered in connection with such a plan) 
that provides both medical and surgical benefits and mental health 
benefits, and that provides such benefits on both an in- and out-of-
network basis pursuant to the terms of the plan (or coverage), such 
plan (or coverage) shall ensure that the requirements of this section 
are applied to both in- and out-of-network services by comparing in-
network medical and surgical benefits to in-network mental health 
benefits and out-of-network medical and surgical benefits to out-of-
network mental health benefits.
    ``(d) Small Employer Exemption.--
            ``(1) In general.--Except as provided in paragraph (2), 
        this section shall not apply to any group health plan (or group 
        health insurance coverage offered in connection with a group 
        health plan) for any plan year of any employer who employed an 
        average of at least 2 (or 1 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.
            ``(2) No preemption of certain state laws.--Nothing in 
        paragraph (1) shall be construed to preempt any State insurance 
        law relating to employers in the State who employed an average 
        of at least 2 (or 1 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.
            ``(3) Application of certain rules in determination of 
        employer size.--For purposes of this subsection:
                    ``(A) Application of aggregation rule for 
                employers.--Rules similar to the rules under 
                subsections (b), (c), (m), and (o) of section 414 of 
                the Internal Revenue Code of 1986 shall apply for 
                purposes of treating persons as a single employer.
                    ``(B) Employers not in existence in preceding 
                year.--In the case of an employer which was not in 
                existence throughout the preceding calendar year, the 
                determination of whether such employer is a small 
                employer shall be based on the average number of 
                employees that it is reasonably expected such employer 
                will employ on business days in the current calendar 
                year.
                    ``(C) Predecessors.--Any reference in this 
                paragraph to an employer shall include a reference to 
                any predecessor of such employer.
    ``(e) Cost Exemption.--
            ``(1) In general.--With respect to a group health plan (or 
        health insurance coverage offered in connections with such a 
        plan), if the application of this section to such plan (or 
        coverage) 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 benefits under the plan (as 
        determined and certified under paragraph (3)) by an amount that 
        exceeds the applicable percentage described in paragraph (2) of 
        the actual total plan costs, the provisions of this section 
        shall not apply to such plan (or coverage) during the following 
        plan year, and such exemption shall apply to the plan (or 
        coverage) for 1 plan year. An employer may elect to continue to 
        apply mental health parity pursuant to this section with 
        respect to the group health plan (or coverage) involved 
        regardless of any increase in total costs.
            ``(2) Applicable percentage.--With respect to a plan (or 
        coverage), the applicable percentage described in this 
        paragraph shall be--
                    ``(A) 2 percent in the case of the first plan year 
                in which this section is applied; and
                    ``(B) 1 percent in the case of each subsequent plan 
                year.
            ``(3) Determinations by actuaries.--Determinations as to 
        increases in actual costs under a plan (or coverage) for 
        purposes of this section shall be made and certified by a 
        qualified and licensed actuary who is a member in good standing 
        of the American Academy of Actuaries. All such determinations 
        shall be in a written report prepared by the actuary. The 
        report, and all underlying documentation relied upon by the 
        actuary, shall be maintained by the group health plan or health 
        insurance issuer for a period of 6 years following the 
        notification made under paragraph (6).
            ``(4) 6-month determinations.--If a group health plan (or a 
        health insurance issuer offering coverage in connection with a 
        group health plan) seeks an exemption under this subsection, 
        determinations under paragraph (1) shall be made after such 
        plan (or coverage) has complied with this section for the first 
        6 months of the plan year involved.
            ``(5) Notification.--An election to modify coverage of 
        mental health benefits as permitted under this subsection shall 
        be treated as a material modification in the terms of the plan 
        as described in section 102(a) and shall be subject to the 
        applicable notice requirements under section 104(b)(1).
            ``(6) Notification to appropriate agency.--
                    ``(A) In general.--A group health plan (or a health 
                insurance issuer offering coverage in connection with a 
                group health plan) that, based upon a certification 
                described under paragraph (3), qualifies for an 
                exemption under this subsection, and elects to 
                implement the exemption, shall notify the Department of 
                Labor or the Department of Health and Human Services, 
                as appropriate, of such election.
                    ``(B) Requirement.--A notification under 
                subparagraph (A) shall include--
                            ``(i) a description of 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 under this 
                        subsection by such plan (or coverage);
                            ``(ii) for both the plan year upon which a 
                        cost exemption is sought and the year prior, a 
                        description of the actual total costs of 
                        coverage with respect to medical and surgical 
                        benefits and mental health benefits under the 
                        plan; and
                            ``(iii) for both the plan year upon which a 
                        cost exemption is sought and the year prior, 
                        the actual total costs of coverage with respect 
                        to mental health benefits under the plan.
                    ``(C) Confidentiality.--A notification under 
                subparagraph (A) shall be confidential. The Department 
                of Labor and the Department of Health and Human 
                Services shall make available, upon request and on not 
                more than an annual basis, an anonymous itemization of 
                such notifications, that includes--
                            ``(i) a breakdown of States by the size and 
                        type of employers submitting such notification; 
                        and
                            ``(ii) a summary of the data received under 
                        subparagraph (B).
            ``(7) Audits by appropriate agencies.--To determine 
        compliance with this subsection, the Department of Labor and 
        the Department of Health and Human Services, as appropriate, 
        may audit the books and records of a group health plan or 
        health insurance issuer relating to an exemption, including any 
        actuarial reports prepared pursuant to paragraph (3), during 
        the 6 year period following the notification of such exemption 
        under paragraph (6). A State agency receiving a notification 
        under paragraph (6) may also conduct such an audit with respect 
        to an exemption covered by such notification.
    ``(f) Mental Health Benefits.--In this section, the term `mental 
health benefits' means benefits with respect to mental health services 
(including substance use disorder treatment) as defined under the terms 
of the group health plan or coverage, and when applicable as may be 
defined under State law when applicable to health insurance coverage 
offered in connection with a group health plan.''.
    (b) Public Health Service Act.--Subpart 2 of part A of title XXVII 
of the Public Health Service Act is amended by inserting after section 
2705 (42 U.S.C. 300gg-5) the following:

``SEC. 2705A. MENTAL HEALTH PARITY.

    ``(a) In General.--In the case of a group health plan (or health 
insurance coverage offered in connection with such a plan) that 
provides both medical and surgical benefits and mental health benefits, 
such plan or coverage shall ensure that--
            ``(1) the financial requirements applicable to such mental 
        health benefits are no more restrictive than the financial 
        requirements applied to substantially all medical and surgical 
        benefits covered by the plan (or coverage), including 
        deductibles, copayments, coinsurance, out-of-pocket expenses, 
        and annual and lifetime limits, except that the plan (or 
        coverage) may not establish separate cost sharing requirements 
        that are applicable only with respect to mental health 
        benefits; and
            ``(2) the treatment limitations applicable to such mental 
        health benefits are no more restrictive than the treatment 
        limitations applied to substantially all medical and surgical 
        benefits covered by the plan (or coverage), including limits on 
        the frequency of treatment, number of visits, days of coverage, 
        or other similar limits on the scope or duration of treatment.
    ``(b) Clarifications.--In the case of a group health plan (or 
health insurance coverage offered in connection with such a plan) that 
provides both medical and surgical benefits and mental health benefits, 
and complies with the requirements of subsection (a), such plan or 
coverage shall not be prohibited from--
            ``(1) negotiating separate reimbursement or provider 
        payment rates and service delivery systems for different 
        benefits consistent with subsection (a);
            ``(2) managing the provision of mental health benefits in 
        order to provide medically necessary services for covered 
        benefits, including through the use of any utilization review, 
        authorization or management practices, the application of 
        medical necessity and appropriateness criteria applicable to 
        behavioral health, and the contracting with and use of a 
        network of providers; and
            ``(3) applying the provisions of this section in a manner 
        that takes into consideration similar treatment settings or 
        similar treatments.
    ``(c) In- and Out-of-Network.--In the case of a group health plan 
(or health insurance coverage offered in connection with such a plan) 
that provides both medical and surgical benefits and mental health 
benefits, and that provides such benefits on both an in- and out-of-
network basis pursuant to the terms of the plan (or coverage), such 
plan (or coverage) shall ensure that the requirements of this section 
are applied to both in- and out-of-network services by comparing in-
network medical and surgical benefits to in-network mental health 
benefits and out-of-network medical and surgical benefits to out-of-
network mental health benefits.
    ``(d) Small Employer Exemption.--
            ``(1) In general.--Except as provided in paragraph (2), 
        this section shall not apply to any group health plan (or group 
        health insurance coverage offered in connection with a group 
        health plan) for any plan year of any employer who employed an 
        average of at least 2 (or 1 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.
            ``(2) No preemption of certain state laws.--Nothing in 
        paragraph (1) shall be construed to preempt any State insurance 
        law relating to employers in the State who employed an average 
        of at least 2 (or 1 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.
            ``(3) Application of certain rules in determination of 
        employer size.--For purposes of this subsection:
                    ``(A) Application of aggregation rule for 
                employers.--Rules similar to the rules under 
                subsections (b), (c), (m), and (o) of section 414 of 
                the Internal Revenue Code of 1986 shall apply for 
                purposes of treating persons as a single employer.
                    ``(B) Employers not in existence in preceding 
                year.--In the case of an employer which was not in 
                existence throughout the preceding calendar year, the 
                determination of whether such employer is a small 
                employer shall be based on the average number of 
                employees that it is reasonably expected such employer 
                will employ on business days in the current calendar 
                year.
                    ``(C) Predecessors.--Any reference in this 
                paragraph to an employer shall include a reference to 
                any predecessor of such employer.
    ``(e) Cost Exemption.--
            ``(1) In general.--With respect to a group health plan (or 
        health insurance coverage offered in connection with such a 
        plan), if the application of this section to such plan (or 
        coverage) 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 benefits under the plan (as 
        determined and certified under paragraph (3)) by an amount that 
        exceeds the applicable percentage described in paragraph (2) of 
        the actual total plan costs, the provisions of this section 
        shall not apply to such plan (or coverage) during the following 
        plan year, and such exemption shall apply to the plan (or 
        coverage) for 1 plan year. An employer may elect to continue to 
        apply mental health parity pursuant to this section with 
        respect to the group health plan (or coverage) involved 
        regardless of any increase in total costs.
            ``(2) Applicable percentage.--With respect to a plan (or 
        coverage), the applicable percentage described in this 
        paragraph shall be--
                    ``(A) 2 percent in the case of the first plan year 
                in which this section is applied; and
                    ``(B) 1 percent in the case of each subsequent plan 
                year.
            ``(3) Determinations by actuaries.--Determinations as to 
        increases in actual costs under a plan (or coverage) for 
        purposes of this section shall be made and certified by a 
        qualified and licensed actuary who is a member in good standing 
        of the American Academy of Actuaries. All such determinations 
        shall be in a written report prepared by the actuary. The 
        report, and all underlying documentation relied upon by the 
        actuary, shall be maintained by the group health plan or health 
        insurance issuer for a period of 6 years following the 
        notification made under paragraph (6).
            ``(4) 6-month determinations.--If a group health plan (or a 
        health insurance issuer offering coverage in connection with a 
        group health plan) seeks an exemption under this subsection, 
        determinations under paragraph (1) shall be made after such 
        plan (or coverage) has complied with this section for the first 
        6 months of the plan year involved.
            ``(5) Notification.--An election to modify coverage of 
        mental health benefits as permitted under this subsection shall 
        be treated as a material modification in the terms of the plan 
        as described in section 102(a) of the Employee Retirement 
        Income Security Act of 1974 and shall be subject to the 
        applicable notice requirements under section 104(b)(1) of such 
        Act.
            ``(6) Notification to appropriate agency.--
                    ``(A) In general.--A group health plan (or a health 
                insurance issuer offering coverage in connection with a 
                group health plan) that, based upon a certification 
                described under paragraph (3), qualifies for an 
                exemption under this subsection, and elects to 
                implement the exemption, shall notify the Department of 
                Labor or the Department of Health and Human Services, 
                as appropriate, of such election. A health insurance 
                issuer providing health insurance coverage in 
                connection with a group health plan shall provide a 
                copy of such notice to the State insurance department 
                or other State agency responsible for regulating the 
                terms of such coverage.
                    ``(B) Requirement.--A notification under 
                subparagraph (A) shall include--
                            ``(i) a description of 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 under this 
                        subsection by such plan (or coverage);
                            ``(ii) for both the plan year upon which a 
                        cost exemption is sought and the year prior, a 
                        description of the actual total costs of 
                        coverage with respect to medical and surgical 
                        benefits and mental health benefits under the 
                        plan; and
                            ``(iii) for both the plan year upon which a 
                        cost exemption is sought and the year prior, 
                        the actual total costs of coverage with respect 
                        to mental health benefits under the plan.
                    ``(C) Confidentiality.--A notification under 
                subparagraph (A) shall be confidential. The Department 
                of Labor and the Department of Health and Human 
                Services shall make available, upon request and on not 
                more than an annual basis, an anonymous itemization of 
                such notifications, that includes--
                            ``(i) a breakdown of States by the size and 
                        type of employers submitting such notification; 
                        and
                            ``(ii) a summary of the data received under 
                        subparagraph (B).
            ``(7) Audits by appropriate agencies.--To determine 
        compliance with this subsection, the Department of Labor and 
        the Department of Health and Human Services, as appropriate, 
        may audit the books and records of a group health plan or 
        health insurance issuer relating to an exemption, including any 
        actuarial reports prepared pursuant to paragraph (3), during 
        the 6 year period following the notification of such exemption 
        under paragraph (6). A State agency receiving a notification 
        under paragraph (6) may also conduct such an audit with respect 
        to an exemption covered by such notification.
    ``(f) Mental Health Benefits.--In this section, the term `mental 
health benefits' means benefits with respect to mental health services 
(including substance use disorder treatment) as defined under the terms 
of the group health plan or coverage, and when applicable as may be 
defined under State law when applicable to health insurance coverage 
offered in connection with a group health plan.''.

SEC. 3. EFFECTIVE DATE.

    (a) In General.--The provisions of this Act shall apply to group 
health plans (or health insurance coverage offered in connection with 
such plans) beginning in the first plan year that begins on or after 
January 1 of the first calendar year that begins more than 1 year after 
the date of the enactment of this Act.
    (b) Termination of Certain Provisions.--
            (1) ERISA.--Section 712 of the Employee Retirement Income 
        Security Act of 1974 (29 U.S.C. 1185a) is amended by striking 
        subsection (f) and inserting the following:
    ``(f) Sunset.--This section shall not apply to benefits for 
services furnished after the effective date described in section 3(a) 
of the Mental Health Parity Act of 2007.''.
            (2) PHSA.--Section 2705 of the Public Health Service Act 
        (42 U.S.C. 300gg-5) is amended by striking subsection (f) and 
        inserting the following:
    ``(f) Sunset.--This section shall not apply to benefits for 
services furnished after the effective date described in section 3(a) 
of the Mental Health Parity Act of 2007.''.

SEC. 4. FEDERAL ADMINISTRATIVE RESPONSIBILITIES.

    (a) Group Health Plan Ombudsman.--
            (1) Department of labor.--The Secretary of Labor shall 
        designate an individual within the Department of Labor to serve 
        as the group health plan ombudsman for the Department. Such 
        ombudsman shall serve as an initial point of contact to permit 
        individuals to obtain information and provide assistance 
        concerning coverage of mental health services under group 
        health plans in accordance with this Act.
            (2) Department of health and human services.--The Secretary 
        of Health and Human Services shall designate an individual 
        within the Department of Health and Human Services to serve as 
        the group health plan ombudsman for the Department. Such 
        ombudsman shall serve as an initial point of contact to permit 
        individuals to obtain information and provide assistance 
        concerning coverage of mental health services under health 
        insurance coverage issued in connection with group health plans 
        in accordance with this Act.
    (b) Audits.--The Secretary of Labor and the Secretary of Health and 
Human Services shall each provide for the conduct of random audits of 
group health plans (and health insurance coverage offered in connection 
with such plans) to ensure that such plans are in compliance with this 
Act (and the amendments made by this Act).
    (c) Government Accountability Office Study.--
            (1) Study.--The Comptroller General shall conduct a study 
        that evaluates the effect of the implementation of the 
        amendments made by this Act on the cost of health insurance 
        coverage, access to health insurance coverage (including the 
        availability of in-network providers), the quality of health 
        care, the impact on benefits and coverage for mental health and 
        substance use disorders, the impact of any additional cost or 
        savings to the plan, the impact on out-of-network coverage for 
        mental health benefits (including substance use disorder 
        treatment), the impact on State mental health benefit mandate 
        laws, other impact on the business community and the Federal 
        Government, and other issues as determined appropriate by the 
        Comptroller General.
            (2) Report.--Not later than 2 years after the date of 
        enactment of this Act, the Comptroller General shall prepare 
        and submit to the appropriate committees of Congress a report 
        containing the results of the study conducted under paragraph 
        (1).
    (d) Regulations.--Not later than 1 year after the date of enactment 
of this Act, the Secretary of Labor and the Secretary of Health and 
Human Services shall jointly promulgate final regulations to carry out 
this Act.

            Passed the Senate September 18, 2007.

            Attest:

                                                             Secretary.
110th CONGRESS

  1st Session

                                 S. 558

_______________________________________________________________________

                                 AN ACT

 To provide parity between health insurance coverage of mental health 
        benefits and benefits for medical and surgical services.