The Paul Wellstone Mental Health Equitable Treatment Act:

Can he accomplish in death what he couldn’t in life?

 By Sabrina LaFleur-Sayler

ABSTRACT

           Health care coverage for mental illnesses has long been substandard when compared to the health care coverage provided for physical illnesses.  This is true for both private insurance coverage as well as federal assistance programs such as Medicaid.  It is not uncommon for a person with cancer to have unlimited health care coverage, while a person with schizophrenia will be allowed only 50 inpatient days in their lifetime in which to treat the illness.  Disparities in coverage such as this have led to several adverse consequences, including a loss of productivity for society and an increased social stigma attached to people who suffer from mental illnesses.

        Efforts have been made to bridge the gap between coverage for mental illnesses and physical illnesses.  This is true at both the state and federal level.  Congress amended the Employee Retirement Income Security Act of 1974 by enacting the Mental Health Parity Act of 1996 (MHPA).  The MHPA prohibits employers and insurers from setting lower lifetime or annual dollar limits for mental health benefits than for medical/surgical benefits (or physical illnesses).  Congress enacted the MHPA, which became fully effective on January 1, 1998, to decrease the barriers people suffering from mental illnesses must overcome to seek care.

        States soon followed suit.  As of today, forty-six states have passed some form of mental health parity legislation.  The extent and limitations on the legislation varies greatly from state to state.  However, it was becoming increasingly clear that Americans were beginning to see the injustice in the coverage provided for mental illnesses and were pushing legislators to address their concerns.

        Yet, substantial loopholes exist within the Mental Health Parity Act that has allowed employers and insurers to avoid providing equal coverage for mental health illnesses.  Determined not to allow this injustice to continue, proponents of equal health care coverage for mental health illnesses have advocated the Paul Wellstone Mental Health Equitable Treatment Act.  This bill is named in memory of the late Senator Paul Wellstone, who prior to his death in October 2002, worked tirelessly for over seven years to bridge the gap between health care coverage for mental and physical illnesses.  Passage of the Paul Wellstone Mental Health Equitable Treatment Act would substantially advance the quality of coverage provided to people suffering from mental illnesses and would permanently close the loopholes currently being enjoyed by employers and insurers, thus ensuring equal health care coverage for all Americans suffering from mental illness.

I.                 INTRODUCTION

Minnie and her husband Leon dreamed of living in America.  Determined to fulfill this dream, they fought their way over from Russia and settled in Arlington, Virginia, close to the very heart of America, Washington D.C.  She bore two sons, and was determined to give them a good life.  The first of her sons was outgoing, extremely smart and athletic.  He went to the University of North Carolina at Chapel Hill on a wrestling scholarship and graduated with a degree in political science in three years.[1]  While at UNC, he was an Atlantic Coast Conference champion.  Later he became a professor of political science at Minnesota’s Carleton College until he left this position to dedicate his life to public service.[2]

The other son was introverted and faced many battles in life.  Unable to interact well with others, he would often become withdrawn. Confused, Minnie and Leon struggled to provide him with help, consulting with a variety of doctors.   Eventually, he was diagnosed with obsessive-compulsive disorder.  Minnie and Leon’s insurance coverage quickly lapsed, and the two worked overtime, him as a writer and her as a cafeteria worker, barely making ends meet in a desperate effort to get their son the help he needed.[3]

Slowly, they helplessly watched their hard-fought American dream slip through their fingers.

As a Senator, Paul Wellstone fought hard to ensure no other families had to experience the financial anguish of reaching almost poverty level in an effort to provide America’s children with the psychological help they needed.  As a result of his efforts, Wellstone’s brother Stephen today has a job and lives on his own.[4]

He enjoys tending to his flower garden and has found inner peace.  “I really know from our own family experience that without having the coverage, the bills are devastating, especially if you don’t come from a lot of wealth or income,” Paul Wellstone said.  “It certainly took my parents a long, long time—I think close to 20 years—to pay the bill off.”[5]

That isn’t to say there are not continuing battles in the struggle to obtain equality in health care coverage for mental health illnesses at the same level as currently provided for physical illnesses.  Passing the Paul Wellstone Mental Health Equitable Treatment Act will bring the dream of equal coverage for mental health illnesses within the reach of those suffering from these horrible illnesses. 

II.  HYPOTHESIS

Despite continuing efforts at both the federal and state level, there remains substantial barriers to equal health care coverage for mental illnesses.  Passage of the Paul Wellstone Mental Health Equitable Treatment Act will alleviate many of the current barriers to coverage for those people suffering from a mental health illness.

III.  ANALYSIS

A.     PEOPLE SUFFERING FROM A MENTAL ILLNESS EXPERIENCE FINANCIAL BARRIERS TO SEEKING TREATMENT FOR THEIR ILLNESSES.

For about one in five Americans, adulthood is interrupted by mental illness.[6]  In the United States, mental disorders collectively account for more than fifteen percent of the overall burden of disease from all causes and slightly more than the burden associated with all forms of cancer.[7]  This equates to over fifty million adults, or twenty two percent of the   adult population, suffering from mental illness or substance abuse disorders every year.[8]  Over forty four million of those Americans are suffering from mental illness alone.[9]  The U.S. Surgeon General estimates that one out of every two Americans alive today will suffer from a mental illness at some point in his or her lifetime.[10]  Simply put, that means everyone will encounter the effects of mental illness at some point during his or her life.

        Additionally, more than five percent of adult Americans have a “serious” mental illness.[11]  A serious mental illness is defined as an illness that interferes with social functioning.[12]  Mental illnesses are brain disorders that disrupt a person’s thinking, feeling, moods and ability to relate to others.[13]  In much the same way as diabetes is a disorder of the pancreas, mental illnesses are disorders of the brain, often resulting in a “diminished capacity for coping with the ordinary demands of life.”[14]

        There are a variety of mental illnesses that can cripple a person.  Four of the ten leading causes of disability for people over five years old are a result of mental disorders.[15]  Major depression is the leading cause of disability in developed nations such as the United States or Canada.[16]  The U.S. Surgeon General’s Report indicates that approximately twenty eight percent of the population either has a mental or addictive disorder, and yet only a mere eight percent of the population secures mental health services, leaving over two-thirds of adults with diagnosable mental disorders who do not receive treatment.[17]  Nearly half of all Americans who suffer from a severe mental illness do not seek treatment.[18]  The 1998 Robert Wood Johnson National Household Telephone Survey revealed that eleven percent of the general population considered themselves in need of mental or addictive services, while about twenty five percent of these people reported difficulty in obtaining the treatment they felt was needed to accurately treat his or her illness.[19]

        Higher out-of-pocket costs also prevent treatment for people suffering from mental illness.  A person who suffers a catastrophic episode, such as an event that triggers a severe depression, faces out-of-pocket costs equal to thirty percent or more (on average) of total treatment costs under current mental health benefits.  On the other hand, if the catastrophic event suffered was a physical illness such as a disabling accident or cancer, the out-of-pocket costs would be less than five percent.[20]  Such examples explain the gross disparity between mental health care and physical care and why reform is desperately needed.  Concern about the costs of treatment was listed as the highest reason for not receiving care, by eighty three percent of the uninsured and fifty five percent of the privately insured.[21]  Even for non-catastrophic events, the out-of-pocket costs are at least two to three times higher under current mental health benefits than they would be under the corresponding physical benefits.[22]  To put this into perspective, for a family with mental health treatment expenses of $35,000 a year, the average out-of-pocket burden is $12,000; for those with $60,000 in mental health expenses a year, the burden averages $27,000.  In contrast, the out-of-pocket expense of a family paying for medical or surgical treatments in these amounts is only $1,500 and $1,800, respectively.[23]

        It is indisputable that the lack of access to mental health care coverage exists at both the public and private level.  Nearly ninety eight percent of private sector health insurance plans impose some form of arbitrary restrictions on treatments for mental health illness, including higher co-payments, limited outpatient treatment and lower caps on lifetime benefits.[24]  As a result, people suffering from mental illnesses are forced to choose temporary treatments that only partially alleviate the symptoms, but fail to comprehensively treat the disorder to ensure that it does not reoccur.

        Medicaid also contains many biases and disparities against mental health coverage.  Many of the definitions of Medicaid-covered services exclude services provided in an “institution for mental diseases” (known as the IMD exclusion).[25]  The excluded institutions are defined as “a hospital, nursing facility, or other institution of more than sixteen beds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services.”[26]  Many of the services that are critically important to the effective treatment of mental disorders are not mandatory Medicaid services, thus accelerating the increasing abandonment of the mentally ill.  The disparate treatment of the mentally ill by the Medicaid program clearly reflects that the discrimination between coverage for mental illnesses versus physical illnesses exists at both the private and public level.  It perpetuates the myth that mental illness is somehow inferior from physical illness and that recovery for individuals with mental illnesses is impossible.[27] 

Medicare also contributes to the lack of parity at the federal level.  Medicare reimburses eighty percent of the cost for most physical illness services, but only fifty percent for the outpatient mental health services of a psychologist, psychiatrist, clinical social worker or psychiatric nurse.[28]  For a typical outpatient psychotherapy treatment session, the cost to the patient would be approximately $50.00.[29]  This bill is difficult for people with little income and fixed budgets to swallow.  Medicare also has built into its program a discriminatory lifetime cap on inpatient psychiatric facility days, but no cap on comparable inpatient services dealing with physical illnesses.[30]  To abolish all inequities that currently exist with respect to mental health care, it is imperative that the Medicaid and Medicare legislation be amended.  Passage of the Paul Wellstone Mental Health Equitable Treatment Act alone will not sufficiently close all gaps in mental health coverage.  Thus, Congress should include in all Medicare and Medicaid reform bills outpatient mental health co-insurance parity.

The evidence indicating the discrimination that exists in health care coverage for illnesses affecting the mind versus those affecting the body is staggering.  What remains uncertain, however, is the originating cause of this different treatment.  Some believe it stems from seventeenth-century philosopher Rene Descartes, who explicitly conceptualized a distinction between the mind and the body.[31]  He viewed the mind as completely separable from the body, the former being the concern of organized religion and the latter the concern of physicians.[32]  This separation of the mental health care treatment system from the mainstream of health in the United States continues to inflict its harsh consequences in the mental health arena yet today, despite medical advances that has long since proven the close interrelationships between physical and mental health.[33]

As a result of this long-established belief, people in the colonial times with mental illnesses were described as “lunatics” and were supported primarily by their immediate family members.  There was no concerted effort to treat mental illnesses in a managed care environment until the urbanization of the 19^th Century.[34]  By this time, the discrimination in coverage was rampantly clear and the fight for equal coverage and full recognition of people suffering from mental illnesses continues to this day.  Nearly two-thirds of all people with diagnosable mental disorders do not seek treatment.[35]  The U.S. Surgeon General’s Report found that approximately ten percent of the United States adult population utilizes mental health services in the health care sector in any year, and another five percent seek help from social service agencies, schools or religious or self-help groups.[36]  The report concluded that, in comparison with the number of Americans suffering from mental illness, critical gaps exist between those who need service and those who receive service.[37]

B.   MENTAL HEALTH COVERAGE IN SOUTH DAKOTA: CASE IN POINT

South Dakota is a small agricultural state with approximately 755,000 people.[38]  Two of the larger insurance companies serving the population of South Dakota is Wellmark Blue Cross and Blue Shield of South Dakota and DakotaCare.  Wellmark Blue Cross and Blue Shield of South Dakota serves approximately 261,000 members in South Dakota.[39]  With every hospital and over 98 percent of the state’s physicians and pharmacies participating in the network, DakotaCare is the most comprehensive managed care network located in South Dakota.[40] 

Table 1-1 below compares the allowable benefits between these two companies and shows the disparities in coverage for mental health benefits as compared to physical health benefits such as surgical care.  The table assumes the visits are made in the network provided for under the plan.

TABLE 1-1

           Mental health care discrimination exists everywhere.  There is no area left untouched—from the urban setting of bustling cities to the sprawling spread of rural living.  Second-class coverage of mental health services reduces access to care for people with mental illness because cost becomes a significant barrier.[41]  Responding to the stigma and lack of equal coverage for mental health illnesses, the Office of the Surgeon General, with the approval of the Secretary of the Department of Health and Human Services, authorized the Substance Abuse and Mental Health Services Administration to serve as lead operating division for the preparation of the first ever U.S. Surgeon General’s Report on Mental Health in 1997.[42]  The Substance Abuse and Mental Health Services Administration worked in conjunction with the National Institute of Mental Health (a subset of the National Institute of Health) to develop the report.[43]  The report, released on December 13, 1999, documented the growing problem of discrimination in mental health care coverage and concluded that a concerted effort must be made on behalf of Americans everywhere to end the discrimination before countless more lives are lost as a result of their failure to seek treatment.  People suffering from mental illnesses are failing to seek treatment because of the disparity in mental health care coverage and the exorbitant costs associated with seeking treatment.

C.    WIDESPREAD PROBLEMS EXIST AS A RESULT OF MENTAL HEALTH ACCESS BARRIERS TO HEALTH CARE COVERAGE

People with untreated mental illness or improperly treated mental illness are at a greater risk of de facto exclusion from society through unemployment, homelessness and incarceration, as well as early death.[44]  The answer to the question, “what happens to the people whose mental illnesses are left untreated?” is tragically apparent in every urban area across the United States.  Current statistics demonstrate that the uncared for, severely mentally ill have extremely high rates of homelessness, incarceration in prisons and shortened life expectancies due to both violence and suicide.[45]  What results is a never-ending revolving door between homelessness, incarceration and sporadic treatment for those who cannot afford to pay the costs associated with proper treatment.  This is a revolving door that could be permanently halted with proper legislation, which has yet to be enacted.

        Lack of equal coverage also contributes to an increase in unemployment.  Unemployment rates for the mentally ill population is three to five times higher than the unemployment rates experienced by the rest of the population.[46] Perhaps the most pervasive and long-lasting effect of the inequities in health care coverage for mental illness is found in the stigma society attaches to those suffering from mental illness disorders.  The stigma results in part from the media’s tendency to highlight the mental health problems of people who commit violent acts.  A 1993 study by George Gerbner of the University of Pennsylvania concluded that the mentally ill were the most negatively portrayed groups of all minority groups in prime-time television.[47]  Stigmatization of mental illnesses remains an excuse for inaction by Americans nationwide and is inexcusably old fashioned in today’s society.[48]  Despite better public understanding of mental illnesses in the last century, the stigma remains a serious threat to people suffering from mental illnesses.[49]  The cause appears to stem from society’s scientifically unfounded fear of violence that could allegedly be inflicted by people suffering from mental health illness.  In 1996, thirty one percent of Americans surveyed mentioned violence in their description of mental illness, up eighteen percent from the number of Americans that used this descriptor in the 1950’s.[50]  Despite this, the overall likelihood of violence from people experiencing mental health illnesses is low.[51]

        In the end, it is Americans that pay the consequences of untreated mental health illnesses.  The following table shows the leading causes of illness that lead to years of life lost due to premature death and years lived with a disability of specified severity and duration.[52]  As is indicated by the table, mental illness ranks second in the disease burden that leads to years of life lost.  This means people suffering from mental illnesses lose the most amount of years of their life, either because of premature death or they are so disabled they are unable to enjoy life.  Mental illness is second only to cardiovascular conditions.

Table 2-1. Disease burden by selected illness categories in established market economies, 1990

*Disability-adjusted life year (DALY) is a measure that expresses years of life lost to premature death and years lived with a disability of specified severity and duration (Murray & Lopez, 1996).

**Disease burden associated with “mental illness” includes suicide.

The DALY’s account for lost years of healthy life, regardless of whether the years were lost due to premature death or whether they were lost as a result of the disability from which they suffer.[53]

There exists a myth among Americans that the costs of full parity for mental health would overwhelm the benefits of achieving parity.  What is often not figured into this equation, however, is the cost to Americans of untreated mental health disorders.  A National Institute of Mental Health study found that mental disorders cost this nation over $300 billion annually from a loss of productivity and other direct and indirect health care costs.[54]  This is nearly equal to the costs America encounters for cancer, AIDS, respiratory and coronary diseases combined.[55]  Direct national expenditures for the treatment of mental illness amounted to $66.7 billion in 1996 alone.  This represented a 7.2 percent increase in the average annual expenditure for the treatment of mental health, alcohol and other drug abuse between 1986 and 1996.[56]  Approximately fifty three percent (or $37 billion) of the funding for mental health treatment came from the pocket of taxpayers in 1996.[57]  Another $70 billion is lost each year due to the lost productivity of individuals suffering from untreated mental disorders whom are unable to work as a result of his/her mental illness.[58] 

What’s even more frustrating for people experiencing mental illness in some form is the fact it’s a preventable problem.  When people receive the proper treatment for their mental health disorders, they have a minimum of seventy five percent rate of success, which surpasses the recovery rates for other medical problems, such as coronary disease, which has only a fifty percent success rate.[59]  Clinical depression, which is experienced by up to ten percent of all adults each year, can be effectively treated in more than eighty percent of cases with medication and psychotherapy or a combination of the two.[60]  In the meantime, clinical depression continues to cost the nation $44 billion each year, according to estimates in a recent report by the Washington Business Group on Health.[61]

        Private health insurance is more restrictive in covering mental health illnesses than physical or somatic illnesses simply because America permits them to be.  Public assistance exists as a guarantor of “catastrophic care” for the uninsured and underinsured, thereby permitting the private sector to avoid the financial risk this coverage entails.[62]  If a person cannot pay for health care, the government will pay the tab.  This ultimately results in higher taxes for the millions of Americans working every day.  Thus, the government and its citizens have a direct interest in achieving mental health parity.  The current lack of parity shifts costs from private to public resources.  The “de facto mental health services system” in the United States comprises a combination of public and private services and facilities.[63]  People with inadequate health care coverage become impoverished as a result of their mental illnesses.  The only resource left available to them is public assistance through public insurance, which is ultimately funded by working Americans in the form of increased taxes.[64] 

Public sources such as Medicaid, Medicare and state and local government programs account for about fifty three percent of mental health expenditures.[65]  This imbalance has increased in recent years, as the public share of mental health expenditures grew from forty nine percent to its current fifty three percent.[66]  Public finance is responsible for nearly twice the mental health care financed by private insurance.[67]  Enacting parity legislation, then, directly benefits all Americans as the burden of coverage is shifted from taxpayers to private (although publicly mandated) payment, which can better assume the risk.

D.     EFFORTS HAVE BEEN MADE AT BOTH THE FEDERAL AND STATE LEVEL TO ADDRESS THE DISPARITY IN MENTAL HEALTH COVERAGE, BUT THE RESULTS HAVE BEEN MIXED AND SUBSTANTIAL LOOPHOLES REMAIN THAT ALLOW EMPLOYERS AND INSURERS TO ESCAPE THE EFFECTS OF EQUAL COVERAGE.

Initially, there existed a belief that the Americans with Disabilities Act (ADA) would encompass and protect mental health parity.  The goal of the ADA was to eliminate discrimination against people with disabilities by putting a stop to irrational and unequal treatment in every aspect of daily life.[68]  It embodied a commitment to the integration of people with disabilities into the community and the rejection of a regime in which the disabled were denied a full opportunity to enjoy the benefits of full citizenship.[69]  However, the ADA ultimately accomplished more for people with physical, rather than mental, disabilities.  Many believe this is a result of society’s deeply rooted discriminatory feelings towards those with mental disabilities.[70]  A survey of the federal circuit courts reveals that eight courts of appeal have directly addressed the issue of mental versus physical health insurance disparities as they relate to the ADA and all eight have conclusively determined the ADA does not mandate parity between these benefits.[71]  Whatever the reason, parity has eluded ADA enforcement.

As a result, there continued to be a need for legislation that addressed the discrimination in mental health care coverage.  The Mental Health Parity Act of 1996 (codified at 42 U.S.C. §300 gg-5 (2000) and 29 U.S.C. §1185a (2000)) was enacted on January 1, 1998 as a result of the hard work and dedication of the late Senator Paul Wellstone and his colleague Senator Pete Domenici.  Along with Wellstone, Domenici had personal ties with mental illness, having experienced firsthand the pains and struggles associated with mental disease as he watched his daughter fight schizophrenia.

Overall, the Mental Health Parity Act (MHPA) is an ineffective law.  It contains three primary weaknesses that prevent true parity from becoming a reality.  This is largely due to concerns that still existed over the cost, the diagnostic and prognostic indeterminacy of mental illnesses and the ambiguity regarding the line dividing medical from non-medical treatments important to the treatment of the seriously mentally ill.[72]  First, illness classification remains an issue.[73]  Many cases proceed to the litigation phase because there is no clear way to determine what constitutes a mental disorder under the current MHPA.  In the recent past, decisions to use mental health services seemed indeterminate and the diagnosis and treatment of the mental health disorders were alleged to rely on untested theories.  The lack of consistency, clarity and certainty prevented people from enjoying the peace of mind that comes from an individual knowing they will have access to treatment.[74]  Over time, it has been proven that the majority of people suffering from mental disorders can be accurately diagnosed and effectively treated.[75]  The proposed legislation (Paul Wellstone Mental Health Equitable Treatment Act) deals with this weakness by establishing the utilization of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.[76]  This clarifies and eliminates many of the existing issues surrounding illness classification.

Second, the MHPA contains several substantial loopholes.  For example, the Act does not compel employers to offer mental health coverage; it only requires that if they do so, the dollar limits on such coverage must be equal to the dollar limits placed on medical benefits.[77]  In addition, the Act does not impose any conditions on deductibles, co-payments, limits on days of hospitalization or office visits or require coverage for substance abuse.  In effect, the parity then only covers catastrophic events by equalizing the lifetime caps.  The MHPA as it exists also does not prevent employers from constructing terms and conditions on mental health benefits offered by an employer as they see fit.[78] 

Finally, the MHPA includes significant exemptions.  For example, it exempts small employers (defined as fifty employees or less) and those plans that can show the Act’s application would increase total medical costs for the plan by 1 percent or more.[79] 

In 2000, the National Advisory Mental Health Council of the National Institute of Mental Health (NIMH) released a report addressing the effectiveness of the MHPA.  The NIMH concluded that although the goal of the MHPA was to provide more people with access to quality mental health care, the limitations to access, such as caps on the number of outpatient visits and treatment sessions, or days in the hospital per year, has actually decreased the use and intensity of mental health services.[80]  The U.S. General Accounting Office found that eighty seven percent of employers that complied with the MHPA reduced other aspects of their mental health coverage, such as was accomplished by imposing day and visit limits.[81]  One national study found the percentage of health plans imposing day limits on inpatient psychiatric care increased from thirty eight percent in 1988 to sixty two percent in 1998.[82]   In the same time period, plans imposing outpatient day limits also increased from twenty six percent to fifty seven percent.[83]  These limitations continue to prevent the MHPA from offering true parity in health coverage to individuals suffering from mental disorders.  Employers and insurers chose to restructure coverage, instead of expanding the coverage for mental health benefits as originally intended by the MHPA. 

        Despite the loopholes in the Mental Health Parity Act, it was an essential first step in gaining recognition for the plight of people suffering from mental illnesses.  Prior to the enactment of the MHPA, only approximately fifty five percent of employers in states without comprehensive parity laws reported they offered parity in dollar limits between mental health and medical/surgical benefits.  After the Act became effective, the number rose to eighty six percent of employers.[84]  At the same time, only three percent of employers reported that compliance with the Act increased their claims costs.[85]  Opponents of the Act also claimed many employers would be forced to eliminate any mental health benefits due to the employer’s inability to finance the rising costs.  However, virtually no employers elected to eliminate mental health benefits after the parity legislation was enacted.[86]

        States soon followed the lead of the MHPA.  Before the MHPA became a reality, only five states had passed any type of parity legislation.[87]  Currently, forty-six states have some type of parity legislation for mental health benefits.[88]  After 1996, fourteen states enacted statutes to match the federal MHPA and seven later passed more rigid parity provisions.[89]  The proposed new legislation, the Paul Wellstone Mental Health Equitable Treatment Act (MHETA), contains a specific provision that states nothing in the Act shall be construed to preempt any provision of State law that provides protections to enrollees that are greater than the protections provided under the MHETA amendment.[90]  Thus, even with the passage of the MHETA, the stricter state legislation will still apply to certain plans.

However, state legislation does not apply to self-funded plans, which are instead preempted by the Employee Retirement Income Security Act.  Self-insured plans, which are unaffected by state mandates, account for 29.7 percent of all firms offering insurance coverage.[91]  Because a large number of Americans are insured by self-funded plans, state parity legislation, although well intended, often is largely ineffective.  True parity, if it is to be achieved, must originate from the federal level.  State parity legislation also varies in its coverage, both in the various state’s definitions of mental illness and in the exemptions each state provides.[92]  Individuals living in different states, suffering from similar illnesses and subject to similar insurance policies, may thus receive different levels of coverage depending on the state in which they live.[93]  It is clear that in order to effectively eliminate the barriers to equal mental health care, federal legislation must be the vehicle.

        The Mental Health Parity Act originally contained a sunset provision of September 30, 2001.  Successive legislation was introduced to replace the MHPA.  However, Congress was unable to agree to the legislation and has thus extended the sunset date twice; the Act is currently set to expire on December 31, 2003.[94]

E.    PASSAGE OF THE PAUL WELLSTONE MENTAL HEALTH EQUITABLE TREATMENT ACT WILL IMPROVE ACCESS TO MENTAL HEALTH COVERAGE FOR THOSE SEEKING HELP.

The Paul Wellstone Mental Health Equitable Treatment Act is another attempt to equalize mental health benefits.  The Act includes three key amendments, which improve the equality of health care experienced by people suffering from mental health disorders.  First, the proposed legislation would bar health plans that serve more than fifty people from putting any type of stricter limits on coverage for mental disorders than exist in their plans on other medical treatments.[95]  The Act mandates that all employers offering any kind of mental health care coverage must do so at the same level as medical/surgical benefits.  This applies to all forms of benefit limits, such as per episode limits, limits on length of stay, visit limits, co-payments and deductibles.[96]   Thus, insurance plans would no longer be allowed to discriminate using higher out-of-pocket costs or limiting the number of visits a person can utilize in seeking treatment for his/her mental disorder.  The Act also addresses the weakness in current legislation regarding the definition of mental health disorders by clearly defining the terms of applicable mental health disorders.[97]  It no longer leaves these definitions open to interpretation by employers, insurers or the courts involved at the litigation phase.  The MHETA includes a reference manual, which categorizes mental health conditions.[98]  The manual is the well-known and scientifically tested Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  Illnesses categorized as eligible for full parity would include schizophrenia, bipolar disorder, major depression, obsessive-compulsive disorder, panic disorder, post-traumatic stress disorder, autism and other disabling biologically based mental disorders such as anorexia nervosa and attention deficit/hyperactivity disorder.[99]  As a result, illness classification will become standardized and consistent.[100]  Although the MHETA includes this reference manual, health plans are still free to determine which treatments are medically necessary according to its own criteria (known as the utilization review in managed care).[101]  Abuse of this process can be halted by the establishment of Administrative Review Committees, which can review and determine whether to affirm or reverse a denial of coverage of benefits.[102]  Safeguards such as these committees are already often established by insurance companies or by state law, but the mandating of such committees would provide additional protection at the federal level.  The DSM-IV merely provides a uniform system of classification for the diagnosis of mental disorders to be used as a reference tool for health professionals.[103]

        Finally, employers experiencing a corresponding increase in premiums as a result of the parity requirements will no longer be exempt from the requirements of the MHETA.[104]  Contradictory to long-held beliefs, the cost of full parity for mental health benefits is minimal.  The Congressional Budget Office, a nonpartisan group, released a study of the anticipated increase in costs and concluded that the MHETA, on average, would increase premiums by only .9 percent.[105]  Actuarial analysis by PricewaterhouseCoopers shows the Act would cost the typical plan only 4 ½ cents per covered person per day.[106]  This cost constraint is largely due to the explosion in managed care.  Cost concerns were legitimate when the majority of Americans were covered by fee-for-service insurance plans.  However, fee-for-service insurance plans have decreased from seventy one percent to fifteen percent in the past decade.[107]  By 1999, one hundred seventy seven million Americans were covered for mental health services in public or private insurance through the use of managed behavioral health companies.[108]  This is double the number that was covered in 1993.[109]  Managed behavioral health companies (MBHC) are a subset of the managed care plans, which have experienced rapid growth.  In 2001, 176.4 million people were enrolled in a managed care health plans.[110]   Managed care reduces costs in three ways:  (1) by shifting treatment from inpatient to outpatient settings; (2) by negotiating discounted hospital and network fees; and (3) by using utilization management techniques to limit unnecessary services at the outset.[111] 

Firms that had already been using MBHC’s found the implementation of parity resulted in negligible increases in costs for mental health services.[112]  Firms implementing parity while switching to MBHC’s actually experienced a reduction in costs.[113]  In a study analyzing the 1995 and 1996 claims data from twenty four managed care plans offering unlimited mental health coverage with minimal co-payments (full parity), RAND research found that overall costs increased only by about $1.00 per enrollee per year.[114]  It is clear that adopting MBHC’s has at least blunted the effectiveness of using high costs as a defense to full parity.  As a result, the parity movement has achieved success in recent years and is increasingly gaining awareness in the legislative process. 

An important implication of the proposed MHETA bill lies in the fact that it will automatically strengthen state parity laws that are lax while leaving untouched state laws that are more protective than the proposed legislation.[115]  It contains an express clause stating that more stringent state laws would not be preempted by the new federal regulations.  Minnesota, for example, is considered to have passed the most comprehensive of state parity legislation.[116]  It includes chemical dependency services and uses a broad definition of mental illness to determine eligibility for the parity requirements.[117]  Despite its liberal interpretations, a study conducted by the Minnesota State Auditor concluded that although Minnesota enjoyed comprehensive legislation, there were no major changes in utilization or costs to insurers after the implementation of the parity legislation.[118]  Thus, in spite of the claims of critics of parity, Minnesota’s system illustrates that parity can be successfully achieved.

Passage of the MHETA will work without causing significant increases in insurance premiums.  Experience proves this hypothesis to be true.  In 1999, President Bill Clinton directed the Office of Personnel Management to implement full parity for the 8.7 million beneficiaries of the Federal Employees Health Benefit Program (FEHBP) by 2001.[119]  The FEHBP requires full parity in all benefits, including mental health, substance abuse, and medical and surgical treatments provided the patient remains within the network provided for in the plan.[120]  The FEHBP parity is more exacting than the current MHPA as it does not allow private insurance plans to impose higher cost sharing requirements or set limits on outpatient mental health visits or hospital stays.[121]  The FEHBP is a full parity model to be analyzed and studied for its cost implications by the federal government.  The United States Office of Personnel Management, which administers FEHBP, testified that parity in-network for both mental health and substance abuse cost an increase in premiums of only 1.3 percent.[122]  It’s yet another indicator that the Paul Wellstone MHETA is both realistic and accommodating.   

There are continuing concerns, even with the improved legislation.  The proposed bill continues to deny equal treatment for substance abuse disorders.[123]  Unfortunately, this continues to harm people suffering from mental disorders because a large number of these people have concurrent problems with substance abuse.  In addition, the proposed legislation still does not require an employer to provide mental health benefits. Instead, it simply prohibits an employer that does provide these benefits from discriminating between coverage provided for mental health benefits from those offered for medical and surgical benefits.  It also does not address the increasing problem of uninsured sufferers of mental health problems.  Significantly, the legislation does not help to secure mental health care coverage for the 17.5 percent of the United States population that does not currently have health insurance.[124]  In addition, Congress should include in all Medicare and Medicaid reform bills outpatient mental health co-insurance parity to address the current lack of parity at the public resources level.

Proponents of parity are also currently focusing on whether the transformation to managed behavioral health companies has reduced the quality of care available.  The concern is whether this situation results in more care for less money or less care for less money.[125]  True parity cannot be achieved unless parity is mandated across the board.  Advocating this position, however, might endanger the chances of successfully passing the Paul Wellstone Mental Health Equitable Treatment Act.  Every piece of legislation that is passed paves the way for stronger legislation the next time.  While the Paul Wellstone Mental Health Equitable Treatment Act does not address every shortcoming to full equality for mental health coverage, it certainly begins to bridge the gap between mental health care coverage and physical health care coverage. 

Review panels such as the Health Plan Employer Data and Information Set or Consumer Assessment of Health Plans can also help to overcome the barriers to quality mental health care.  These services collect and report data on various health care plans to ensure compliance with the federal legislation.  They will also educate consumers and employers seeking a group health care provider in an effort to aid them in choosing the correct health plan that provides the optimum benefits.  In essence, they act as report cards for insurance companies.[126]  Hopefully, publication of these statistics will also act as an incentive for various insurance plans to provide the most comprehensive coverage possible.

Comprehensive parity legislation will improve society in several ways.  It will increase worker productivity, decrease the homeless population and the incarceration levels of people suffering from mental disorders, and decrease the costs the American taxpayer is forced to bear in the absence of such legislation.[127]  The estimated premium increase of .9 percent as determined by the Congressional Budget Office will quickly be overshadowed by the gains society enjoys as a result of the Paul Wellstone Mental Health Equitable Treatment Act.

IV.           CONCLUSION

Passage of the Paul Wellstone Mental Health Equitable Treatment Act is the crucial first step towards disintegrating all barriers that exist to effective mental health care coverage.  It will send a message that equal treatment is to be expected, and seeking such treatment is neither a sign of weakness nor something to be ashamed of.

It would be a fitting tribute to Paul Wellstone, if in death he is able to accomplish what in life he fought so hard for – to achieve equal coverage for mental health illness.  His son continues to carry forth his father’s message today.  In a recent letter to Congress written on September 30, 2003, Paul Wellstone’s son David urges Congressional members to pass the Paul Wellstone Mental Health Equitable Treatment Act:

Dear Representative:

Nearly a decade ago, my father, Paul Wellstone, and Senator Pete Domenici began a battle in the U.S. Senate to save lives and end the suffering of families – like our own – touched by mental illness.  Their plea was simple: stop discrimination in health insurance against people with mental illness.  End the unfair restrictions on those who need mental health care.

Despite my father’s and Senator Domenici’s commitment to this issue, and the overwhelming support it won among their colleagues, millions of Americans are still denied needed treatment because their health insurance treats people with mental illness like second-class citizens.  Every day families who have full insurance coverage for other illnesses confront severe limits on the coverage for mental health issues.

The impact is devastating.  Discriminatory insurance practices – unique to mental disorders – all too often result in unemployment, broken homes, poor school performance, and even suicide.  A congressional report earlier this year documented the tragedy of parents across the country that were forced to give up custody of their children with mental illness, frequently because they could not get them the necessary care due to health insurance limits.

My father and Senator Domenici offered a straightforward solution – bipartisan legislation that would provide Americans the same protection Members of Congress enjoy under their own insurance plans.  Mental health parity provides the assurance that mental illness will be treated no differently than any other illness.  As study after study has demonstrated, parity is not only fair, it is affordable.  What this country cannot afford is to ignore the untold suffering of untreated mental illness and the billions it drains from the economy.

A presidential commission on mental health recently renewed the call for passage of mental health parity legislation.  That legislation has the support of more than 270 national organizations, from the American Academy of Pediatrics to the American Association of School Administrators, the American Jail Association to the National PTA, the Evangelical Lutheran Church in America to Catholic Charities, and the National Coalition to End Domestic Violence to Camp Fire, USA.

Parity is also, of course, a compelling personal issue for millions of families.  Congress must not let another year go by without passing this legislation.  As the anniversary of the tragic death of my father approaches, I ask you to do everything possible to pass the Paul Wellstone Mental Health Equitable Treatment Act.

Sincerely yours,

David Wellstone[128]

         The pending Paul Wellstone Mental Health Equitable Treatment Act currently has the vocal support of President George W. Bush, 66 Senate cosponsors and 224 House cosponsors, yet it continues to face opposition from employer and insurance lobbying groups.[129]  Currently, the bill (Sen. 486) has been read twice and referred to the Senate, Education, Labor and Pensions Committee for review. The passage of the Paul Wellstone Mental Health Equitable Treatment Act remains the key to unlocking all doors between sickness and health for the millions of Americans suffering from mental health illnesses each year.

        The message is best summed up in the concluding paragraph of the U.S. Surgeon General’s Report:

This Surgeon General’s Report on Mental Health celebrates the scientific advances in a field once shrouded in mystery.  These advances have yielded unparalleled understanding of mental illness and the services needed for prevention, treatment, and rehabilitation.  This final chapter is not an endpoint but a point of departure.  The journey ahead must firmly establish mental health as a cornerstone of health; place mental illness treatment in the mainstream of health care services; and ensure consumers of mental health services access to respectful, evidence-based, and reimbursable care.[130]