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The Senate Approves the "2007 Mental Health Parity Act": Achieving Equal Treatment for the Mentally Ill


Monday, Oct. 01, 2007

On September 18, the Senate unanimously approved the proposed "2007 Mental Health Parity Act." The legislation, if passed, would require group health plans of employers (of 50 or more employees) offering mental health coverage to provide the same level of benefits for mental conditions as they do for other medical conditions. President Bush has promised to sign such a bill.

If enacted, this law would represent a significant development, both concretely and symbolically.

When Parity Is Not Parity: The 1996 Act

"Equality" and "discrimination" are loaded words. When a public figure who supports discriminatory policies confronts the question whether it is appropriate to discriminate, she will typically respond that she opposes discrimination of all kinds and that discrimination is inherently bad. Only then will she cite the reasons she supports the favored (discriminatory) policy.

Such an approach is most familiar in the anti-gay context. Some might favor official exclusion of openly gay and lesbian people from the military or from the institution of marriage, or they might oppose legislation interfering with private exclusion of gay persons in the workplace and elsewhere. When asked whether they support discrimination, however, they issue a blanket denial. Such denials are pragmatic, if transparent. Admitting that one discriminates seems impolitic, no matter how accurate. Everyone wants to be on the side of equality or, to use a synonym, parity.

In 1996, Congress passed its first mental health parity law. This law, which has been renewed and remains in effect, governs group health plans of employers of over 50 people. It requires that plans offering mental health coverage provide annual and lifetime spending limits for such care that are no lower than the corresponding limits for other medical and surgical interventions. Significantly, however, the law does not require equal co-payments or deductibles.

What this means, in concrete terms, is that your employer's group health plan may - consistent with the 1996 Mental Health Parity Act - reimburse you for 90% (or even 100%) of the cost of your visit to an ear, nose, and throat doctor (ENT), yet only pay 50% of the cost of your visit to a psychiatrist. The plan could also require you to pay the first (and perhaps the only) $1000 of mental-health-related medical expenses each year, without reimbursement, while asking you to pay no more than the first $150 of non-mental-health-related medical expenses. It could, in addition, limit the number of covered annual psychiatric visits, even if covered visits to the ENT are unlimited.

In short, the 1996 law, though it has the word "parity" in its title, does not require anything approaching equality. It does not, in other words, demand the same coverage for people who suffer from mental illness as that provided to people who suffer from other medical conditions. Indeed, the law countenances a gross dis-parity between the respective levels of coverage offered.

On the other hand, the 1996 legislation does represent a positive symbolic change in federal law, in that it acknowledges the needs of people suffering from mental illness. Furthermore, the National Alliance for the Mentally Ill (NAMI) has noted that there may be important real-world beneficiaries of the 1aw, "persons with the most severe, persistent and disabling of brain disorders because they are, on average, more likely to exceed annual and lifetime benefits."

Parity Evolves: the 2007 Act

The 2007 Mental Health Parity Act, as passed by the Senate, represents a substantial improvement on the 1996 Act. Like the earlier law, it would require parity in annual and life-time limits. In addition, though, it would extend the parity mandate to deductibles, to co-insurance, and to the number of visits per year. Under the new law, then, you could visit a psychiatrist with the same frequency with which you visit your ENT and receive the same level of reimbursement in each case. This extension would likely have the concrete effect of expanding the number of beneficiaries of parity far beyond the most disabled sufferers of mental illness.

Beyond its positive effects on the wallets of patients, the new parity legislation could generate more dramatic change as well. First, an employee suffering from a mental condition is more likely to seek treatment at an early stage, if he is covered, than he otherwise would. Early intervention, in turn, can reduce the ultimate severity of mental health conditions that would otherwise rage on, untreated, until a crisis occurred.

Most importantly, perhaps, the new law would signal progress in the acceptance of mental illness as a "real" medical condition, one that deserves the same accommodation and concern as heart disease or cancer. Such acceptance could diminish the stigma attached to people who suffer from these conditions and could, accordingly, motivate people, who might otherwise feel ashamed, to seek care when they need it. Coverage, in that sense, has the potential to help liberate people who suffer from mental illness from both financial and social obstacles to treatment.

How True Parity Remains Elusive

As I have suggested here, I am optimistic about the 2007 Mental Health Parity Act and believe that praise is in order for the Senate (and ultimately the House and the President) for passing it. Still, it would be misleading to suggest that the law truly grants "parity" or equality to employees suffering from mental illness. The law would, after all, permit group health plans to offer no coverage at all for the treatment of mental illness, while fully covering non-mental-health medical conditions. That is, only if a plan chooses to offer mental health coverage in the first place must it do so in a manner that treats mental illness as well as it does non-mental illness. In addition, the law maintains an exemption for group health plans whose compliance would increase total costs by more than 2% during the first year or by more than 1% each subsequent year.

As a practical matter, these limitations might not create a substantial problem. The
Congressional Budget Office estimates that compliance will increase costs by less than 1% each year. As to the no-mental-health-coverage option, moreover, many group health plans will want to be able to say that they offer mental health coverage and will therefore be forced to provide it with greater equity. Still, anyone who believes it is wrong to discriminate against the mentally ill should be disturbed by these loopholes, which essentially say, first, that parity is required only so long as it is not very expensive and second, that if one wants to exclude the mentally ill from all coverage for their conditions, one can do so, consistent with an act that purports to demand parity.

Nonetheless, the proposed legislation represents a major step forward and for that, it deserves much credit.

Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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