                               ATTORNEY GENERAL OF TEXAS
                                            GREG'      ABBOTT




                                              October 28, 2008



The Honorable Rodney Ellis                                   Opinion No. GA-0674
Chair, Committee on Government Organization
Texas State Senate                                           Re: Whether section 1355.004(b)(2) of the
Post Office Box 12068                                        Insurance Code requires group health plans
Austin, Texas 78711-2068                                     that provide more than 60 outpatient visits for
                                                             physical illnesses to provide the same number
                                                             of visits for serious mental illnesses
                                                             (RQ-0695-GA)

Dear Senator Ellis:

        You ask whether a group health plan must provide the same number of outpatient visits for
serious mental illnesses as it does for physical illnesses.! Your question relates specifically to
Insurance Code section 1355.004.

        Chapter 1355, subchapter A addresses group health benefit plan coverage for serious mental
illnesses and certain other disorders as defined in section 1355.001. See TEX. INS. CODE ANN. §
1355.001 (Vernon 2008). It "applies only to a group health benefit plan that provides benefits for
medical or surgical expenses incurred as a result of a health condition, accident, or sickness,
including [a list of group health benefit plans]." Id. § 1355.002; see id §§ 1355.001-.015
(subchapter A of chapter 1355), 1355.003 (exception). Section 1355.004 provides as follows:

                 (a) A group health benefit plan:

                          (1) must provide coverage, based on medical necessity, for
                 not less than the following treatments ofserious mental illness in each
                 calendar year:

                               (A) 45 days of inpatient treatment; and

                             (B) 60 visits for outpatient treatment, including group
                 and individual outpatient treatment;


         lLetter from Honorable Rodney Ellis, Chair, Committee on Government Organization, Texas State Senate, to
Honorable Greg Abbott, Attorney General of Texas, at 1 (Mar. 25, 2008) (on file with the Opinion Committee, also
available at http://www.texasattorneygenera1.gov) [hereinafter Request Letter].
The Honorable Rodney Ellis - Page 2                      (GA-0674)



                          (2) may not include a lifetime limitation on the number of
                   days of inpatient treatment or the number of visits for outpatient
                   treatment covered under the plan; and

                           (3) must include the same amount limitations, deductibles,
                   copayments, and coinsurance factors for serious mental illness as the
                   plan includes for physical illness.

                   (b) A group health benefit plan issuer:

                          (1) may not count an outpatient visit for medication
                   management against the number of outpatient visits required to be
                   covered under Subsection (a)(I)(B); and

                            (2) must provide coverage for an outpatient visit described
                   by Subsection (a)(I)(B) under the same terms as the coverage the
                   issuer provides for an outpatient visit for the treatment of physical
                   illness.

"Id § 1355.004; see id § 1355.001(1) (defining "[s]erious mental illness").2

        You state that section 1355.004(b)(2) "clarifies that mental health outpatient visits must be
covered 'under the same terms' as outpatient visits for physical illnesses" and that,it "require[s]
group health plans that provide more than 60 outpatient visits for physical illnesses to provide the
same number of visits for serious mental illnesses." Request Letter, supra note 1, at 1. You also
inform us that the Texas Department of Insurance (the "Department") does not employ this
interpretation. See id 3

        Section 1355.004(a)(I)(B) requires coverage for "not less than" 60 visits for outpatient
treatment, thus establishing a floor for the number of outpatient visits. TEx. INS. CODE ANN. §
1355.004(a)(I)(B) (Vernon 2008). Section 1355.004(b)(2) requires coverage for an outpatient visit
described in section 1355.004(a)(I)(B) "under the same terms as the coverage the issuer provides
for an outpatient visit for the treatment ofphysical illness." Id. § 1355.004(b)(2) (emphasis added).
A "term" is a provision, clause, or condition in a contract. See BLACK'SLAW DICTIONARY 312-13,
1509 (8th ed. 2004) (defining "condition" and "term").


         2See Mental Health Parity and Addiction Equity Act of2008, Pub. L. No. 110-343, tit. V, subtit. B, § 512, 122
Stat. 3765, 3881 (2008) (providing for parity in treatment of mental illness with medical and surgical benefits in
insurance plans).

         3We have found no rule incorporating the Department's construction of Insurance Code section 1355.004, but
information posted on its internet site states that a group policy subject to section 1355.004 "must provide overage for
45 days ofinpatient treatment, and 60 visits for outpatient treatment ... for serious mental illness in each calendar year."
TEXAS DEPARTMENT OF INSURANCE, ACCIDENT & HEALTH INSURANCE, TEXAS MANDATED BENEFITS/OFFERS/
COVERAGES, INCLUDING CHANGES MADE BY THE 80TH LEGISLATURE at 10 (Sept. 2008), available at
http://www.tdi.state.tx.us/hmo/documents/lhmanben.pdf (last visited Oct. 23, 2008).
The Honorable Rodney Ellis - Page 3           (GA-0674)



       Section 1355.004(b)(2) expressly requires coverage for an outpatient visit described in
subsection (a)(l)(B) on the same terms as for physical illness, and subsection (a)(l)(B) establishes
a minimum but not a maximum. We accordingly conclude that section 1355.004(b)(2) requires
group health plans that provide more than 60 outpatient visits for physical illnesses to provide the
same number of visits for serious mental illnesses.
Th~   Honorable Rodney Ellis - Page 4         (GA-0674)



                                       SUMMARY

                       Section 1355.004(a)(1)(B) of the Insurance Code requires a .
               group health benefit plan to provide coverage, based on medical
               necessity, for not less than 60 visits per year for outpatient treatment
               of serious mental illness. Section 1355.004(b)(2) requires coverage
               for an outpatient visit described in subsection (a)(l)(B) on the same
               terms as for physical illness. Group health plans that provide more
               than 60 outpatient visits for physical illnesses must accordingly
               provide the same number of visits for serious mental illnesses.

                                              Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
