The Need for Parity in Health Insurance Benefits for the Mentally and Physically Disabled: Questioning Inconsistency between Two Leading Anti-Discrimination Laws

Article excerpt

 
  I. INTRODUCTION 
 II. HISTORY AND PURPOSE OF THE ADA 
III. THE ADA AND HEALTH INSURANCE 
     A. Textual Analysis of the ADA 
        1. Title I 
        2. Title III 
        3. Title V, The Safe Harbor Provision 
     B. Interpretations of the ADA 
        1. Disability-Based Distinctions 
        2. Public Accommodations 
        3. The Safe Harbor Provision 
        4. The Narrowing Effect 
 IV. THE ADA's NEW OUTCAST: 
     THE MENTALLY DISABLED 
     A. Allowable Insurance Discrimination 
        Against the Mentally Disabled 
     B. Effects on Health 
     C. Effects on Employment 
  V. A COMPARISON: THE FAIR HOUSING ACT 
     AND THE ADA 
     A. Background of the Fair Housing 
        Act Amendments 
     B. Applications of the FHAA 
        1. Nondiscrimination Under 
           the FHAA 
        2. Real Accommodations 
        3. A Simple Test 
     C. The FHAA and Home Insurance 
        Discrimination 
  V. A GROWING PROBLEM 
 VI. PROPOSAL FOR CHANGE 
VII. CONCLUSION 

I. INTRODUCTION

"We must act ... to retain in and return to the community the mentally ill ... [in order] to restore and revitalize their lives." (1) President John F. Kennedy uttered these words when addressing Congress on the issue of mental illness and mental retardation. (2) Following President Kennedy's suggestion, this country has been less than successful in returning the mentally ill to the community and revitalizing their lives. While some people with mental illness may be seen functioning in and contributing to society on a daily basis, in schools, the workforce and social settings, many are without shelter or a job. While many members of the community believe that persons who are mentally ill are being taken care of and are adequately accommodated and protected by the law, they are not. Persons with mental illness face stigma and severely limited opportunities for medical treatment, which might, if successful, return them to the world that President Kennedy hoped this country would create. Lack of access to basic mental heath care is a significant barrier.

While at first glance, the law appears to protect persons from being discriminated against because they are disabled, the purpose of this paper is to illustrate that significant discrimination exists in an area where protection is most needed--health insurance. Currently, health insurance providers are permitted to severely limit or even deny health insurance to persons for the sole reason that they have a mental illness, have had a mental illness, or in some extreme cases, at some point believed they had a mental illness. (3) Health insurance providers are permitted to discriminate solely on the basis of disability, while this type of discrimination by employers, housing providers, and the government has been prohibited or strictly limited since the dawn of the discrimination law.

One in five Americans is affected by mental illness. (4) According to the National Institute of Mental Health ("NIMH"), approximately 22.1% of adult Americans suffer from a mental disorder that would be diagnosable. (5) Approximately 9.5% of the U.S. population aged eighteen and over suffer from a depressive disorder (defined by the NIMH as including major depressive disorder, dysthymic disorder, and bipolar disorder). (6) An estimated 13.3% of Americans aged 18-54 suffer from an anxiety disorder (defined by NIMH as including panic disorder, obsessive compulsive disorder, post-traumatic stress disorder, generalized anxiety disorder, and phobias). (7) Approximately 1.1% of American adults suffer from schizophrenia. (8)

Untreated mental illness can be devastating, and may interfere with family, employment, and quality of life in general. (9) Despite these dramatic statistics and realities, privately insured Americans are not covered for mental health services on the same terms as they are covered for physical health services. …