[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

[[Page S10884]]

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.

[[Page S10885]]

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.

                          ____________________