[Congressional Record Volume 153, Number 127 (Friday, August 3, 2007)]
[Senate]
[Pages S10883-S10885]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MENTAL HEALTH PARITY ACT
Mr. CASEY. Mr. President, I rise today to clarify my support for S.
558, the Mental Health Parity Act of 2007. This bipartisan legislation
introduced by Senators Domenici and Kennedy, seeks to provide parity
between health insurance coverage of mental health benefits and
benefits for medical and surgical services. I join my colleague, the
senior Senator from Pennsylvania, Mr. Specter, in establishing for the
record today the reasons for our joint support for this bill. I also
thank Chairman Kennedy and Senator Domenici for joining us in this
discussion.
Mr. SPECTER. I thank my colleague Senator Casey. Mr. President, as a
cosponsor of S. 558, I am pleased that the Senate is taking up this
important legislation. I thank Health, Education, Labor, and Pensions,
HELP, Committee Chairman Kennedy, Senator Domenici, who along with HELP
Committee Ranking Member Enzi and others, have worked to establish
mental health parity for millions of American citizens.
Mr. KENNEDY. I thank my colleagues from Pennsylvania and appreciate
their dedication to and support for the cause of mental health parity.
I
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welcome this opportunity to discuss this critical legislation.
Mr. DOMENICI. I concur with Senator Kennedy and look forward to
Senate action on S. 558.
Mr. CASEY. Mr. President, the Mental Health Parity Act of 2007 amends
the Employee Retirement Income Security Act, ERISA, and the Public
Health Service Act to require a group health plan that provides both
medical and surgical benefits and mental health benefits to ensure
that: (1) the financial requirements applicable to such mental health
benefits are no more restrictive than those of substantially all
medical and surgical benefits covered by the plan, including
deductibles and copayments; and (2) the treatment limitations
applicable to such mental health benefits are no more restrictive than
those applied to substantially all medical and surgical benefits
covered by the plan, including limits on the frequency of treatments or
similar limits on the scope or duration of treatment.
Mr. SPECTER. In 1989, in the Commonwealth of Pennsylvania, the State
legislature passed a bill, Pennsylvania Act 106, which requires all
commercial group health insurance plans and health maintenance
organization's to provide a full continuum of addiction treatment
including detoxification, residential rehabilitation, and outpatient/
partial hospitalization. The only lawful prerequisite to this treatment
and to coverage is certification to need and referral from a licensed
physician or psychologist. Such certifications and referrals in all
instances control the nature and duration of treatment. I support
existing Pennsylvania law and, before agreeing to support S. 558,
assured myself that S. 558 will not serve to supplant greater
Pennsylvania protections for those seeking treatment for substance
abuse.
Mr. CASEY. I join my esteemed colleague in having assured myself that
S. 558 will not serve to preempt in any way the services and benefits
provided to the citizens of Pennsylvania by Pennsylvania Act 106. I
know that our offices have collaborated extensively in this analysis
and have consulted with HELP Committee staff and Senator Domenici's
staff, and that our views are borne out by extensive legal and
scholarly analysis of the preemptive provisions of S. 558.
Mr. KENNEDY. I can assure the Senators from Pennsylvania that we have
labored to ensure that S. 558 will serve only to benefit States and the
coverage that citizens receive.
Mr. CASEY. I thank Chairman Kennedy and Senator Domenici, and I note
in particular that Professor Mila Kofman, Associate Research Professor,
Health Policy Institute, Georgetown University, wrote to Senator
Specter and myself on August 2, 2007, extolling the benefits of S. 558.
I ask unanimous consent to print in the Record Professor Kofman's
letter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Georgetown University
Health Policy Institute,
August 3, 2007.
Hon. Robert P. Casey, Jr.,
U.S. Senate, Russell Senate Office Building, Washington DC.
Hon. Arlen Specter,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Casey and Senator Specter: This is a response
to a request for an analysis of the preemption provisions in
the Mental Health Parity Act of 2007 (S. 558 as amended 8/3/
07 Managers' Amendment).
The changes made to the preemption section in S. 558 mean
that the current HIPAA federal floor standard would apply to
the new Mental Health Parity law (just like it applies to the
current law passed in 1996).
This would mean that more protective (of consumers) state
insurance laws would apply to insurers that sell coverage to
employers. This bill would also mean new federal protections
for people in self-insured ERISA plans.
This would be a tremendous victory for patients who need
coverage for mental health services. This approach continues
the public policy established in 1996 in HIPAA--an approach
that allows states to be more protective of consumers while
setting a federal minimum set of protections for workers and
their families.
While not every word or phrase is perfect (meaning not 100%
litigation proof), using the current HIPAA preemption
standard would certainly make it difficult to win a case that
seeks to challenge more protective state insurance law.
If enacted, this bill would provide much needed minimum
protections for people in self-insured ERISA plans who
currently are not protected by states because of ERISA
preemption. It also raises the bar for insured products.
If you have additional questions, please contact me at 202-
784-4580.
Very truly yours,
Mila Kofman, J.D.,
Associate Research Professor.
Mr. CASEY. In the letter, Professor Kofman writes:
The changes made to the preemption section in S. 558 mean
that the current HIPAA federal floor standard would apply to
the new Mental Health Parity law (just like it applies to the
current law passed in 1996).
This would mean that more protective (of consumers) state
insurance laws would apply to insurers that sell coverage to
employers. This bill would also mean new federal protections
for people in self-insured ERISA plans.
This would be a tremendous victory for patients who need
coverage for mental health services. This approach continues
the public policy established in 1996 in HIPAA--an approach
that allows states to be more protective of consumers while
setting a federal minimum set of protections for workers and
their families.
If enacted, this bill would provide much needed minimum
protections for people in self-insured ERISA plans who
currently are not protected by states because of ERISA
preemption. It also raises the bar for insured products.
Mr. SPECTER For the purpose of further clarifying congressional
intent of S. 558 and its application to state law and specifically
Pennsylvania Act 106, will the senior Senator from Massachusetts and
the senior Senator from New Mexico yield for questions from Senator
Casey and myself?
Mr. KENNEDY I will be happy to do so.
Mr. DOMENICI As will I.
Mr. SPECTER I thank Chairman Kennedy and Senator Domenici. Why
doesn't the Mental Health Parity Act have its own preemption provision?
Mr. KENNEDY It is our intention to establish a Federal floor and not
a Federal standard or Federal caps. Thus, we decided to use the
already-existing language and standard found within part 7 of ERISA,
which is where the current mental health parity law already resides,
and where S. 558 will be codified. This law contains the narrowest
possible preemption language, and is meant to preempt only those state
laws that are less beneficial to consumers and insured, from the
standpoint of the consumer and insured, than this new Federal law.
Mr. CASEY The Health Insurance and Portability Accountability Act,
HIPAA, preemption standard that will apply prevents State laws that
``prevent the application of requirements of this part,'' which refers
to part 7 of ERISA. Do the medical management provisions of section
712A(b) constitute ``requirements of this part'' that might preempt
State laws under this standard?
Mr. DOMENICI No. Section 712A(b) says that managed care plans ``shall
not be prohibited from'' carrying out certain activities. It does not
require them to do so, and this is not a ``requirement of this part.''
This section recognizes that plans have flexibility. It is not our
intention to preempt any State laws that regulate, limit, or even
prohibit entirely the medical management of benefits. That is one of
the reasons we are using a preemption standard--the existing HIPAA
standard that so clearly does not preempt such a law.
Mr. SPECTER Would a State law that establishes a physician or
psychologist's certification, as the only lawful prerequisite to
managed care coverage of a particular treatment, be preempted?
Mr. KENNEDY Such a law is not preempted, and it is not our intention
to preempt any such law.
Mr. CASEY What about a State law requiring insurers or managed care
companies to cover an entire continuum of care?
Mr. DOMENICI Mr. President, it is my understanding that such a law
would not be preempted. S. 558 is a Federal floor, and nothing in such
a State law Senator Casey describes would prevent the application of
any requirements of part 7 of ERISA.
Mr. SPECTER Would State laws that place coverage decisions squarely
in the hands of treating clinicians be preempted?
Mr. KENNEDY Absolutely not.
Mr. CASEY Focusing specifically on Pennsylvania, as you may be aware,
the citizens of Pennsylvania just received a significant court victory
from the Commonwealth Court, upholding a Pennsylvania law that was
previously mentioned here, Pennsylvania Act 106.
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That State law and the recent decision in The Insurance Federation of
Pennsylvania, Inc. v. Commonwealth of Pennsylvania Insurance
Department, removes managed care barriers to addiction treatment. What
effect will S. 558 have on that State law, or on State efforts to
enforce that law or to find remedies for violations of that law?
Mr. KENNEDY This bill would have no effect upon that law.
Mr. CASEY Would any State laws be preempted?
Mr. DOMENICI Yes, State law requirements that would prevent the
application of a requirement of S. 558 by, for example, endorsing a
less consumer-friendly level of coverage or benefits. For example, a
State law that prohibited an insurance company from selling policies
providing for full parity in coverage for mental health services and
medical/surgical services would be preempted.
Mr. CASEY Would the current legislation, S. 558, have any effect on
any provisions of Pennsylvania Act 106, or on any State efforts to
enforce provisions of that law or to find remedies for violations of
any provisions of that law?
Mr. KENNEDY It would have no effect. Pennsylvania's Act 106 is an
example of the kind of consumer protection law that is not preempted by
the federal floor created in S. 558.
Mr. SPECTER I appreciate this discussion with my colleague from
Pennsylvania, Chairman Kennedy and Senator Domenici. I thank Chairman
Kennedy, Ranking Member Enzi, Senator Domenici and others on the HELP
Committee who have worked so hard to establish these critical benefits
for citizens across our great country. And I thank them for this
discussion to clarify our support for S. 558.
Mr. CASEY I also want to express my deepest thanks to HELP Committee
Chairman Kennedy, Senator Domenici, HELP Committee Ranking Member Enzi,
and all members and staff who have worked so hard to make this long
time dream a reality. I greatly appreciate this discussion and our
establishment of intent regarding S. 558.
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