Unequal Access to Treatment: The Mental Health (Dis)Parity and the ACA

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During the Spring 2015 semester, the Campbell Law Observer held the first annual CLO Law and Medicine Writing Contest. This entry was selected as the winner by a panel of Campbell Law School faculty members.

BY: Katherine Reason, Campbell Law School

Mental illness and substance abuse are slowly becoming less taboo as topics for public discussion, but the stigma that surrounds them perpetuates both legal and healthcare problems.  Private health insurance plans have traditionally discriminated against insureds with mental health claims by requiring higher cost sharing or limiting appointments for treatment.

Tony Zipple, CEO of Kentucky-based Seven Counties Services, a nonprofit mental health provider, explained the disparity to The Courier-Journal:  “If you need to see a cardiologist, the insurance company doesn’t say you’re not allowed to see the cardiologist more than a certain number of times. With behavioral health, you commonly see a limit on the visits you get. Behavioral health nationally is treated like a smaller part of health care. It’s not seen as health care in the way that oncology or dermatology is.”

President Bill Clinton signed the Mental Health Parity Act of 1996 (P.L. 104-204) into law in 1997.  With the leadership of Senators Pete Domenici (R-New Mexico) and Paul Wellstone (D-Minnesota), this momentous bipartisan legislation hoped to bring to an end the long-held practice of providing less insurance coverage for mental illnesses than is provided for equally grave physical conditions.

In the nearly twenty years since, many states have passed parity laws in an attempt to improve the disparate treatment of healthcare coverage for mental health issues and other regularly covered conditions.  These parity laws endeavored to expand access to mental health services without raising the cost of health insurance.  This task proved to be no easy feat.

“Because of the ACA, insurers can no longer deny coverage or charge patients more due to pre-existing health conditions, including mental illness…”

At its inception, the Affordable Care Act represented a significant development within mental health and substance abuse disorder coverage.  The Act promised to ensure coverage despite a preexisting condition, including mental illness.  Further, by requiring individual, small employer, and all plans offered through the Health Insurance Marketplace to cover treatment for mental health and substance use disorder services, the ACA seemed promising for the 62 million Americans the parity laws intended to protect.

“Through the Affordable Care Act, we are extending mental health and substance use disorder benefits and parity protections to over 60 million Americans,” President Barack Obama said in a presidential proclamation in 2014.  “Because of the ACA, insurers can no longer deny coverage or charge patients more due to pre-existing health conditions, including mental illness.  The ACA also requires health plans to cover recommended preventive services like depression screening and behavioral assessments at no out-of-pocket cost. And under this law, we are expanding services for mental health and substance use disorder at community health centers across the country.”

Despite a recent study indicating that the number of people receiving mental health and substance abuse treatment services rose by seven percent in two years, many of the goals of the ACA in relation to mental health issues have yet to come to fruition. This is particularly true with members of the population who are dual diagnosis—those who suffer from both a substance abuse disorder and a mental disorder under DSM-5.

Reports from the National Institutes of Health indicate that 8.4 million adults in the United States are dual diagnosis.  This number does not include those who have never been diagnosed for either mental illness or a substance use disorder (a number which in the sample size of our prison systems is alarmingly high).  Further, only 7.9 percent of those who are dual diagnosis receive treatment for both conditions.  Sadly, 53.7 percent receive no treatment at all.

“For many years the public and private treatment communities have wrestled with the dual-disorder problem; most often denying treatment for the individual with the dual disorder because the ‘substance abuse problem came before the mental illness diagnosis…’ or other inane excuses,” author and addiction specialist Dr. Ralph E. Jones wrote in January.  “The number of individuals with mental illness in our nation’s population exceeds ten million.  If they do not currently have a substance abuse disorder as well, then they are most assuredly at risk for developing one.”

As states address questions of implementation, many mentally ill individuals and their families still face some of the same frustration with shortages of mental health providers and treatment centers.

These issues prompted many of the provisions in the ACA, some of which have been effective in providing treatment for mental health concerns.  For instance, the provision allowing children to remain on their parents’ health insurance has allowed many Millennials aged eighteen to twenty-five to seek and obtain mental health services.

Despite the ACA’s ability to open the door to mental health and substance abuse treatment, there are issues in the execution.  States vary in their attempts to include mental health coverage, with efforts ranging from “almost nonexistent to a variety of creative experiments with Medicaid coverage,” according to U.S. News & World Report.  Further, many states have not been able to respond to the high demand for mental health treatment.  A recent Mental Health America report identified Arizona, Mississippi, Nevada, and Washington as the lowest ranking states for access to care.  North Carolina ranks 18th in the country with a lower prevalence of mental illness and higher rates of access to care.

As states address questions of implementation, many mentally ill individuals and their families still face some of the same frustration with shortages of mental health providers and treatment centers.  The ACA has addressed these issues by providing incentives directly to healthcare providers.  The Act encourages the formation of accountable healthcare organizations and collectives to coordinate patient care, and in exchange, obtain eligibility for bonuses when they deliver that care effectively and efficiently.

In response, many states have begun establishing Accountable Care Organizations (ACOs).  ACOs are teams comprised of a variety of health care professionals who work together to help each patient.  “For mental health treatment to gain true equality with treatment for physical ailments, psychiatrists, psychologists, social workers and behavioral treatment experts are beginning to be incorporated into those teams,” according to Susan Brink of U.S. News.

ACOs and similar group structures are popping up in states across the country, leading a large-scale national experiment.  The movement gives mental health providers financial incentive to work collectively and holds the whole team accountable for the health and stability of patients.  In 2014, Kaiser Health News estimated that fourteen percent of Americans received their health care through an ACO or group structured plan, and the movement has continued to grow ever since.

While ACOs are considered one of the best fixes for previous inefficient payment procedures, some economists warn that the establishment of ACOs rewards more care, and not necessarily better care.  This, they say, could lead to even greater consolidation in the health care industry, potentially allowing some providers to charge more if they have a monopoly in a community.

Regardless of the potential of monopolization, there are benefits to the ACO system beyond the greater provision of access to mental health treatments to the mentally ill.  According to Jenny Gold of Kaiser Health News, ACOs are “projected to save Medicare up to $940 million in their first four years.  While that’s far less than one percent of Medicare spending during that period, if the program is successful, it can be expanded by the secretary of the U.S. Department of Health and Human Services.”

Arguably, the incentives and financial benefits of the Affordable Care Act’s ACO systems are creating better avenues to the mental health care that those with mental illness and substance abuse disorders need.  Some argue, however, that access to care is just one issue when other problems lie in how laws treat the mentally ill.  Some mental health law attorneys advocate that “federal laws need to change so that families can have more of an input in how their loved ones with mental illnesses receive treatment.”  They argue that “the mental health care system to be more proactive rather than reactive, stating the need for involuntary commitment of those who pose an imminent danger to themselves and others.”

It is clear that the disparate access to mental health treatment is of utmost concern to President Obama as he begins to consider his legacy.

Much of the progress made on the mental health front has been pushed from the White House.  Following the Sandy Hook shooting, President Obama encouraged empathy for the struggles that the mentally ill face due to the stigma associated and called for a movement aimed at “bringing mental illness out of the shadows.”

Through the ACA and other more targeted legislation, President Obama has upheld his commitment to these issues. This past February, President Obama signed the Clay Hunt Suicide Prevention for American Veterans Act, which aims to improve veterans’ access to mental health treatment. According to the White House, the new law is “named in honor of Clay Hunt, an extraordinary young Texan and decorated Marine who served with distinction in Iraq and Afghanistan.  Like too many of our veterans, Clay struggled with depression and post-traumatic stress after he came home.  Sadly, Clay’s life ended much too soon when he tragically committed suicide in 2011 . . . .”

Upon signing the Act, President Obama reiterated his commitment to those struggling with mental illness, stating, “America is here for you. All of us. And we will never stop doing everything in our power to get you the care and support you need to stay strong and keep serving this country we love.”

Likewise, in March First Lady Michelle Obama launched The Campaign to Change Direction, marking her attempt to raise mental health awareness among Americans.  The campaign describes its purpose as a “collection of concerned citizens, nonprofit leaders, and leaders from the private sector who have come together to create a new story in America about mental health, mental illness, and wellness.”  This initiative was inspired by the national conversation about mental illness and stigma that followed the Sandy Hook tragedy.

It is clear that the disparate access to mental health treatment is of utmost concern to President Obama as he begins to consider his legacy.  In his presidential proclamation for National Mental Health Awareness Month in 2014, President Obama reminded the nation that “[w]e too often think about mental health differently from other forms of health.  Yet like any disease, mental illnesses can be treated — and without help, they can grow worse. That is why we must build an open dialogue that encourages support and respect for those struggling with mental illness.”

“It’s great that the Obama administration has taken action, but Congress as a body has failed to pass legislation and that’s a huge part of this issue,” the National Alliance on Mental Illness national spokeswoman Katrina Gay has stated.  “Pulling one lever in the executive branch is not enough. The administration’s actions have not been replicated in other policy circles on the scale that it should have been.  There has been some good attention and that’s meaningful especially when it comes to veterans and young adults.  However, health care reform and increasing coverage doesn’t translate into better access.”

Change must come both in access, as well as in societal change regarding the stigma and fear surrounding mental illness and substance use disorders.

While the ACA has made some progress with regards to the disparity between mental and physical healthcare coverage and access to treatment, much is left to be done.  Change must come both in access, as well as in societal change regarding the stigma and fear surrounding mental illness and substance use disorders.

Both federal and state parity laws have made their purpose known.  Now it is up to legislators to follow through with the promise to recognize the mentally ill by enacting legislation that will support execution of these goals.  The ACA was enacted with a far broader purpose than to provide access to mental health treatment, though this is no minor benefit.  It is, however, not enough.

Ultimately, having a mental health advocate—or two—in the White House has raised awareness and has sparked the much needed conversation around the legal issues involving mental illness.  The debate surrounding access to mental health and substance abuse treatment and coverage will be ongoing for several years to come, but the ACA should be hailed for what it is—a step in the right direction.

Katherine Reason is a 2L at Campbell Law School who will graduate in May 2016. She can be reached by email at kr**********@em***.edu.