John F. Kennedy first championed the notion of “parity” in addressing the right to equal pay for men and women. Though he did not discuss parity in relation to mental illness and developmental disabilities per se, he was nonetheless the first president to advocate for the civil rights of patients with mental illness and developmental disabilities.
During the 1960s, uninsured patients were largely boarded in state hospitals throughout the country, often without treatment and without proper supervision. In a message to Congress about the state of health care for the mentally ill, President Kennedy said, “This situation has been tolerated far too long. It has troubled our national conscience—but only as a problem unpleasant to mention, easy to postpone, and despairing of solution.”
Through passage of the Community Mental Health Act in 1963, President Kennedy affirmed the right of patients with mental illnesses and developmental disabilities to access effective treatments in their communities, closer to their families with the opportunity to become active participants in society. This milestone marked the first step in a legal conflict that has lasted 50 years.
Despite great hopes for deinstitutionalization that accompanied the advent of anti-psychotic medications, and the downsizing and closing of many state hospitals across the country, very few resources were redirected to community mental health centers. While some individuals were successfully treated as outpatients, many became homeless or died prematurely, victims both of their mental illnesses and of a criminal justice system that failed to address their treatment needs.
By the 1970s, access to mental health care had become more limited. Individual states did not provide adequate community services through Medicare, Medicaid, or the solicitation of charitable donations. This proliferation was spurred by the Health Maintenance Organization Act in 1973 and the Employee Retirement Income Security Act (ERISA) in 1974. These laws enabled employers to style and control access to employee health benefits by providing insulation from liability in the event of coverage denials or mismanagement. To dilute their risk still further, employers privately contracted with MCOs to insure and administer health benefits. MCOs restricted patient access to treatment in order to suppress costs, incentivize their employer-clients, and otherwise maintain profitability.
In the 1980s, societal problems with homelessness and the incarceration of patients with mental illness continued to rise. Patients who were denied treatment became increasingly disgruntled with managed care and gradually began voicing their dissatisfaction. Responding to public outcries by patients, clinicians, consumer groups, and professional associations, Senators Pete Domenici and John Danforth introduced the Equitable Care for Severe Mental Illness Act in 1992, which required insurers to “provide for the treatment of severe mental illnesses in a manner that is equitable and commensurate with that provided for other major physical illnesses.”
The bill did not pass but was reintroduced again by Senators Pete Domenici and Paul Wellstone as the Equitable Health Care for Severe Mental Illnesses Act in 1995 and signed into law by President Bill Clinton on September 26, 1996. It mandated that “partial parity with annual and lifetime dollar limits in coverage for mental health treatment under group health plans offering mental health coverage be no less than that of physical illness.” Congressman Pete Stark unsuccessfully attempted to amend this bill by requiring group health plans to provide for parity of coverage for all conditions listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).
MCOs found ways to skirt the intent of this law by requiring higher co-pays and deductibles, limits on the number of outpatient visits, and limits on the number of reimbursable hospital days. Historically, MCOs offering mental health benefits have balked at authorizing outpatient treatment on the basis of “medical necessity.” More recently they have also decried the alleged “lack” of an “evidence base” for certain techniques and procedures as a rationale to deny treatment. MCOs have similarly declined to authorize inpatient care unless patients have been determined to be an acute risk to themselves or others, leaving those at the fringe to settle for less than adequate levels of outpatient care. These obstacles to access were widely regarded as more stringent than those placed on medical benefits, demonstrating that insurers were biased in favor of non-mental health coverage.
In 1999, through executive order, President Clinton implemented “full parity” for mental health benefits and health plans offered
Graham L. Spruiell, M.D., is co-chair of the Committee on Government Relations and Insurance and a member of the Program in Psychiatry and the Law, Beth Israel Deaconess Medical Center, Boston.
under the Federal Employees Health Benefits Program (FEHBP). The FEHBP requires health care plans to cover treatment for all categories of mental illness listed in the DSM-IV. Unfortunately this mandate was actually limited in scope and difficult to enforce.
Full parity legislation was introduced in subsequent Congresses but failed to gain passage, but in 2007, Senator Domenici introduced the Mental Health Parity Act in the Senate while Representative Patrick J. Kennedy sponsored the House version of the bill. A compromise bill, known as the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) was passed and signed into law by President George W. Bush. This law requires private and non-federal governmental group health plans (with more than 50 employees) that choose to offer mental health and/or substance abuse benefits to do so in parity with medical/surgical benefits. Although MHPAEA does not require the large self-funded group plans that insure most Americans to offer mental health or substance abuse benefits, the Affordable Care Act will include “essential health benefits” comprising mental health coverage subject to MHPAEA.
Five years have passed since passage of MHPAEA, but a final rule implementing the law has yet to be issued by the federal agencies tasked with this responsibility. Despite an interim final rule that clearly prohibits more stringent management of mental health care than medical/surgical benefits, MCOs and insurers continue to circumvent the law by relying on self-serving interpretations of MHPAEA that are contrary to the intent of Congress. Many advocates for patients suffering from mental illness agree that “medical management” techniques designed to limit access to treatment, violate the civil rights of patients.
Congressman Patrick Kennedy convened a forum of experts in Boston in October 2013 to discuss issues of parity. This forum marked the fifth anniversary of MHPAEA's passage and the 50th anniversary of the signing of the Community Mental Health Act by John F. Kennedy. In tribute to these achievements, Patrick Kennedy has called upon the Obama administration to issue a final parity rule, as promised, to further define the civil rights of patients with mental illness, developmental disabilities, and substance abuse disorders.
Congressman Kennedy said, “We can't wait another moment for the final rule on this law, which helps to remove the arbitrary distinctions between the brain and the body it resides in when it comes to health care,” citing research that mental health parity will improve outcomes while reducing costs. He added, “With the Affordable Care Act taking effect, a generation of veterans returning home, many struggling from brain injuries sustained in combat, a suicide epidemic, and far too frequent gun violence, we have an urgent need and a tremendous opportunity to finally achieve mental health parity and eliminate the discrimination experienced by people with mental illness.”
Fortunately, Congressman Kennedy is not alone in his bid to reduce the stigma of mental illness and to extend coverage to anyone seeking treatment. Meiram Bendat, a psychotherapist, psychoanalytic candidate, and attorney member of APsaA, founded Psych-Appeal, which is the first and only private mental health advocacy firm in the United States devoted exclusively to safeguarding parity and due process rights of patients. Since 2011, Bendat has filed two class action suits against UnitedHealth Group and its subsidiaries, UnitedHealthcare and United Behavioral Health, on behalf of patients and their treating clinicians to compel insurer compliance with MHPAEA, corresponding state parity, and due process rights. He has also championed external appeals, informed by ERISA and the Affordable Care Act, to overturn inexcusable insurer denials of urgent treatments.
Impact litigation, which includes cases of substantial precedence, offers great promise for patients and clinicians alike, but it is a lengthy process involving public reform campaigns and attitudinal shifts about mental illness. In anticipation of imminent court rulings and release of the final rule, Bendat will keep APsaA members apprised of developments while continuing to advocate that parity should not be simply a fantasy, but rather an enforceable right.