Academic journal article American Journal of Law & Medicine

Parity and Difference: The Value of Parity Legislation for the Seriously Mentally Ill

Academic journal article American Journal of Law & Medicine

Parity and Difference: The Value of Parity Legislation for the Seriously Mentally Ill

Article excerpt

I. INTRODUCTION

Mental illness affects the health status of about one in five Americans each year. More than five percent of adult Americans have a "serious" mental illness-an illness that interferes with social functioning.1 About two and one-half percent have "severe and persistent" mental illness, a categorization for the most disabling forms of mental illness, such as schizophrenia and bipolar disorder.2 All mental illness interferes to some degree with social activities. Left untreated, serious mental illness can be disabling-disrupting family life, employment status and the ability to maintain housing.3 Nevertheless, privately insured people in the United States (that is, the majority of insured people in the United States) are not covered for mental health services to the same extent that they are covered for physical health services.4 Second-class coverage of mental health services reduces access to care for people with mental illness because cost becomes a significant barrier to service.5 The resulting lack of treatment fuels the disabling potential of mental illness.6 People with untreated mental illness are at greater risk of de facto exclusion from society through unemployment, homelessness and incarceration, as well as early death.7

Disparate treatment of people with disabling or potentially disabling mental illness is a species of disability discrimination. The disability rights movement has raised awareness of the evils of disability discrimination and has accomplished much through its advancement of an aggressive legislative agenda. The movement's seminal achievement was the passage of the Americans with Disabilities Act (ADA) in 1990. The ADA established that the social dislocations associated with disabilities spring in large part from decisions by the able-bodied majority (most not arising from discriminatory animus) to order society for its own benefit, and not for the benefit of the disabled. Ending discrimination against people with disabilities therefore entails not only putting a stop to irrational unequal treatment (the traditional goal of antidiscrimination law), but also providing affirmative accommodations and services to the disabled to level the social playing field. The heart of the ADA focuses on adjusting both personal attitudes and facially neutral social structures to enable people with disabilities to participate in society on an equal footing.

The ADA has accomplished much, although undoubtedly more for people with physical, rather than mental, disabilities.8 As this Article suggests, that lag may be related to more deeply rooted discriminatory feelings toward those with mental disabilities, to the greater practical difficulties in leveling the social playing field for the mentally disabled, or both. The problem of mental health parity in healthcare coverage is a significant piece of achieving the social accommodation of those with mental disabilities. Nevertheless, as described below, parity has eluded ADA enforcement. In response to this failure, states and the federal government have enacted legislation specific to the task. The legislation has varied from weak and inconsequential to quite comprehensive in form. Legislative efforts continue, and laws limiting consumers' exposure to humiliating and fiscally crushing insurance practices advance. Resistance to such legislation centers on concerns over cost, diagnostic and prognostic indeterminacy, and ambiguity at the line dividing medical from non-medical treatments important to the seriously mentally ill.

In Part II, this Article will examine the need for parity legislation and the shape such legislation has taken in recent years. It will argue that parity legislation serves three goals: first, it strives for equality in an important area of commerce that has eluded the ADA; second, it assures access to services by mandating the funding of care and by reducing out of pocket costs for the mentally disabled; and, third, it reduces the extent to which private insurers can shift the cost of mental healthcare to government. …

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