Docket: CMS-2009-0040 

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 

Comment On: CMS-2009-0040-0048 

Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction 

Equity Act of 2008 

Document: CMS-2009-0040-DRAFT-0108 

DC 

Submitter Information 

Name: Kristin Ptakowksi 

Address: 

Washington, DC, 20016 

Organization: American Academy of Child & Adolescent Psychiatry 

General Comment 

The American Academy of Child and Adolescent Psychiatry (AACAP) is pleased to provide comments 

on the Interim Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and 

Addiction Equity of 2008 (“Interim Final Rules”[IFR] or “regulations”). 

AACAP appreciates the significant work the Departments have put into the regulations to ensure the Act 

is implemented in a manner that was intended by Congress. The Institute of Medicine in their 2009 

report, Preventing Mental, Emotional, and Behavioral Disorders Among Young People: Progress and 

Possibilities, recommended the federal government make preventing mental, emotional and behavioral 

disorders and promoting mental health in young people a national priority. While it is understood that 

insurers have a fiscal responsibility to manage care, a concern exists that in anticipation of facing higher 

expenditures for reimbursement, insurers and managed care organizations will look to use utilization 

review or care management techniques to limit care or prevent care from being given, outside of the 

intent of the Act. On May 28, 2009, AACAP submitted comments on our organization’s view of the 

intent of the law. AACAP has reviewed the interim final rules and is pleased that the IFR holds the intent 

of the law and that our suggestions for clarification were included. Below are AACAP’s responses and 

recommendations to your questions in the IFR. 

Attachments 

PUBLIC SUBMISSION 

As of: May 04, 2010 

Received: May 03, 2010 

Status: Draft 

Category: Association - Other

Tracking No. 80ae6151 

Comments Due: May 03, 2010

Submission Type: Web

CMS-2009-0040-DRAFT-0108.1: DC

Page 1 of 1

file://C:\Documents and Settings\baum.beth.EBSADOL\Local Settings\Temp\Temporary Di... 5/5/2010
May 5, 2010 

Office of Health Plan Standards and Compliance Assistance 

Employee Benefits Security Administration, Room N–5653 

U.S. Department of Labor 

Attention: RIN 1210–AB30 

200 Constitution Avenue, NW. 

Washington, DC 20210 

Centers for Medicare & Medicaid Services 

U.S. Department of Health and Human Services 

Attention: CMS–4140–IFC 

P.O. Box 8016 

Baltimore, MD 21244–1850 

CC:PA:LPD:PR (REG–120692–09), Room 5205 

Internal Revenue Service 

P.O. Box 7604 

Ben Franklin Station 

Washington, DC 20044 

Re: Interim Final Rules under the Paul Wellstone and Pete Domenici Mental 

Health Parity and Addiction Equity Act of 2008 

Dear Secretary Solis, Secretary Sebelius, and Commissioner Shulman: 

The American Academy of Child and Adolescent Psychiatry (AACAP) is pleased to provide 

comments on the Interim Final Rules under the Paul Wellstone and Pete Domenici Mental 

Health Parity and Addiction Equity of 2008 (“Interim Final Rules”[IFR] or “regulations”). 

The AACAP is a medical membership association established by child and adolescent 

psychiatrists in 1953. Now over 8,000 members strong, the AACAP is the leading national 

medical association dedicated to treating and improving the quality of life for the estimated 7-12 

million American youth under 18 years of age who are affected by emotional, behavioral, 

developmental and mental disorders. AACAP’s members actively research, evaluate, diagnose, 

and treat psychiatric disorders and pride themselves on giving direction to and responding 

quickly to new developments in addressing the health care needs of children and their families. 

AACAP appreciates the significant work the Departments have put into the regulations to ensure 

the Act is implemented in a manner that was intended by Congress. The Institute of Medicine in 

their 2009 report, Preventing Mental, Emotional, and Behavioral Disorders Among Young 

People: Progress and Possibilities, recommended the federal government make preventing 
2

mental, emotional and behavioral disorders and promoting mental health in young people a 

national priority. While it is understood that insurers have a fiscal responsibility to manage care, 

a concern exists that in anticipation of facing higher expenditures for reimbursement, insurers 

and managed care organizations will look to use utilization review or care management 

techniques to limit care or prevent care from being given, outside of the intent of the Act. On 

May 28, 2009, AACAP submitted comments on our organization’s view of the intent of the law. 

AACAP has reviewed the interim final rules and is pleased that the IFR holds the intent of the 

law and that our suggestions for clarification were included. Below are AACAP’s responses and 

recommendations to your questions in the IFR. 

AACAP fully supports the Departments’ determination that the Act prohibits health plans 

from applying separate deductibles, out-of-pocket maximums or other cumulative financial 

requirements on mental health/substance use disorder benefits. We are pleased that the 

Departments have determined that separate but equal out-of-pocket maximums would not have 

been the intent of the law. There are many families who face both physical and mental health 

issues and the financial strain on them is extraordinary. Separate deductibles and out-of-pocket 

maximums have often been a barrier to care where individuals have had to forego care when they 

could not meet the separate requirements. Prohibiting separate cumulative financial requirements 

will dramatically improve access to mental health and substance use disorder services for 

individuals and their families who need and use these services. AACAP strongly encourages the 

Department to include a combined deductible in the Final Rule. 

Clarification that Any Exceptions to the Comparable and No More Stringently Standards 

Must Be Based on Independent and Objective Clinical Policies and Standards. The 

regulations state that non-quantitative treatment limits must be comparable and applied no more 

stringently to mental health and substance use disorder benefits than to medical/surgical benefits. 

However, the regulations permit an exception “to the extent that recognized clinically 

appropriate standards of care may 
permit a difference.” AACAP is most concerned that a plan’s internal review alone could 

weaken the intent of the law by defining its own clinically appropriate standards. To ensure the 

strong parity protections envisioned by Congress, the Departments should adopt a definition of 

“recognized clinically appropriate standards of care” that is based on independent and objective 

clinical policies and standards. This definition should state clearly that any “recognized” 

standard of care for purposes of the NQTL exceptions process must be: (1) an independent 

standard that is not developed solely by a single health plan or plans; (2) based on input from 

multiple stakeholders and experts, such as academic researchers, senior practicing clinicians, and 

consumer and advocacy leaders with subject matter expertise, in addition to a health plan or its 

advisory panels; (3) recognized or accepted by nationally recognized provider organizations 

and/or nationally recognized accrediting organizations that are responsible for developing quality 

standards; and (4) based on objective scientific evidence, such as peer-reviewed publications of 

control group research trials or expert consensus panels. When a non-quantitative exception is 

applied for by a plan, the plan should clearly identify this limitation as an exception and state in 

writing their rationale for permitting the exception to both the patient and the provider. 

Additional Illustrations of Non-Quantitative Treatment Limits and More Detailed 

Discussion of Selected Non-Quantitative Treatment Limits of Significance. AACAP is 

increasingly concerned when specific non-quantitative treatment limits are being used to deny 

care. We understand non-quantitative treatment limits are used to manage benefits; however, 

when used inappropriately they have a negative effect on patient access to care. For example, 

non-quantitative treatment limits such as requirements to use lower cost therapies before the plan 

will cover more expensive therapies or medications (fail-first policies) can be life threatening to 

a patient. Because of the widespread use and potential for abuse related to non-quantitative 

treatment limits, the Departments should provide additional illustrations of non-quantitative 

treatment limits and highlight selected non-quantitative treatment limits of significance. The 

Final Rule should include additional illustrations of common non-quantitative treatment limits, 

including, but not limited to, the following: 

 Prior authorization and concurrent review requirements for outpatient services, in and 

out-of-network; 

 Prior authorization and concurrent review requirements for inpatient services, in and outof-network; 

 Reimbursement rate issues for in and out-of-network; 

 Formulary design; 

 Service coding; 

 Provider network criteria; 

 Policy coverage conditions and exclusions; and 

 Geographic limitations, in and out-of-network. 

Medical Necessity Criteria. AACAP recommends an external group or body to standardize the 

definition of medical necessity for mental health and substance use disorders. Health plans must, 
4

at a minimum, follow professional organization guidelines. All medical necessity information 

should be published in such a way that it is available to providers or consumers, and all appeals 

procedures should be transparent and written at an 8th grade level. In medical necessity 

determinations, physician reviewers must be a licensed physician of the same specialty, working 

within the same state, and familiar with the resources available in the community. When the 

health plan is unable to secure access to the appropriate level of care, it must authorize either a 

higher level of care or services with an out of network provider. Network limitations, such as day 

treatment programs or residential treatment centers that are too far away from the home create 

insurmountable barriers for families. When reimbursement or care is denied on the basis of 

medical necessity, the rationale for this denial must be stated in writing accompanied by a 

written explanation of the procedures for appeals of this finding. 

Regarding the disclosure requirement, because all denials of mental health and substance use 

disorder treatments can only be judged as compliant or noncompliant with the Act when 

compared with the same policies and/or criteria used for medical/surgical treatments, a plan 

should also be required to make available the corresponding medical coverage criteria or policy 

that is used for substantially all medical/surgical benefits. For example, if a mental health or 

substance use disorder treatment is considered experimental, the scientific criteria applied to the 

mental health/substance use disorder treatment should be disclosed as well as the scientific 

criteria used for substantially all medical/surgical treatments. 

Scope of Service and Continuum of Care. The Department should clarify that if a level of care 

or prescribed treatment modality exists and is reimbursed for a physical illness, then the 

analogous level of care or treatment modality utilized for the treatment of mental illnesses must 

be provided as a covered benefit at the same level of reimbursement. AACAP’s predominant 

concern is coverage of specific levels of care that may currently be provided under a plan will no 

longer be provided due to the plans determination that there is no equal level of care. It is 

important for the Departments to also clarify that when the health plan is unable to secure access 

to the appropriate level of care, it must authorize either a higher level of care or services with an 

out of network provider, as they would do for a medical/surgical treatment. Network limitations, 

such as day treatment programs or residential treatment centers that are too far away from the 

family home create insurmountable barriers for the families. In addition, some mental health 

carve-outs have limited networks and apply stricter limits on providing care, and these carve-outs 

should be required to adhere to any parity requirement to which the parent plan is mandated. 

Disclosure Requirements for Denial of Claims. The statute clearly requires that a plan disclose 

the reason for any denial of reimbursement or payment for services with respect to mental 

health/substance use disorder benefits. However, patients have faced significant delays in 

receiving the required disclosure. AACAP requests that the Departments set a timeframe for 

plans to provide the reason for the denial. Specifically, when the denial is based on a medical 

necessity determination, plans should be required to provide the plan’s medical necessity criteria 

within three business days. Without disclosure of such criteria, the patient has little information 

to understand any potential exposure to financial risk in undertaking a specific treatment. 

Summary plan documents are often inadequate. In practice, many patients appeal a denial of 

care. Without the medical necessity criteria on which the plan based its decision, the patient has 

little basis for responding to the plan’s denial. 
5

Medical Necessity Reviews. Often, after attempts to contact the treating physician, the reviewer 

declines the request due to lack of information. Many mental health/substance use providers do 

not have receptionists or other administrative office staff to answer phones. Many child and 

adolescent psychiatrists see patients throughout the day and are not able to return calls during 

normal business hours to talk with a reviewer. Reviewers must be required to contact the 

physician (via phone) to discuss the review with the treating physician; if the reviewer can not 

reach the physician they should be required to provide times the physician can call them back 

and discuss the treatment plan. We also recommend that in any instance where a denial is given, 

the name, discipline and phone number for the reviewer must be noted on the denial. Providing 

physicians subject to unprofessional treatment by physician reviewers should be able to report 

this behavior to state licensing agencies. 

Pharmacy Benefit Management. AACAP is also concerned that pharmacy benefit management 

will be an avenue for denying appropriate care. In order to treat children with severe mental 

illnesses, child and adolescent psychiatrists sometimes prescribe medications that are not FDAapproved for the age, diagnosis or indication they are intended. An FDA indication alone as a 

standard for meeting the parity requirement is inadequate and that such standards must reference 

both "community standards of care" and expert consensus guidelines. Co-pays for medications 

should be the same as medical or other health problems. Any requirement for documentation for 

off-label use and fail-first policies can be applied only if they are also required in 

medical/surgical treatment. We recommend the Departments make a specific statement 

addressing that parity must be applied to medication as well as physician visits. 

Cost exemption. The Act permits an exception to the mental health parity requirements for plans 

that experience a cost increase of over one percent in the total cost of coverage. The Act is clear 

that actual costs incurred, not actuarial cost projections, must form the basis of a cost exemption 

application. AACAP is concerned that some plans may intentionally run up their costs for 

providing mental health services. We request that the Departments address this in the final 

regulations. 

These recommendations are intended to preserve the spirit and intent of the new legislation with 

full consideration of the necessity to manage the costs of both medical and mental health care. 

Mental health is essential to the health and well being of all children and adolescents, and the 

integration of mental health and physical health services is vital to improve the lives of millions 

of Americans. We thank the Departments for releasing these interim regulations and encourage 

you to expedite the release of the final rule. 

Sincerely, 

Laurence L. Greenhill, M.D. 

President