Parity bolsters ADA protections of Americans with mental illness; here’s how | The Kennedy Forum

Parity bolsters ADA protections of Americans with mental illness; here’s how
July 27, 2022

By Patrick J. Kennedy

In Olmstead v. L.C. (June 1999), the U.S. Supreme Court ruled that unnecessary segregation of people with disabilities, including those with Serious Mental Illness (SMI), violates the American with Disabilities Act (ADA), which protects an individual’s right to live, work, socialize, be educated, experience cultural enrichment, and enjoy family life in the community. In its decision, the Court held that public entities must provide community-based services when they are appropriate for the person, the person wants them, and the state can reasonably provide them. In other words, people should not be forced into higher levels of care than they need because more appropriate community-based services are not available.

The ruling set an important precedent for mental health equity. The right of people with mental health diagnoses to receive needed services in their communities rather than in institutions under the ADA and Olmstead has been enforced privately and by the U.S. Department of Justice across the country, including in states like North Carolina and New York. This advocacy includes several enforcement activities specifically for children’s mental health services, in states like Massachusetts and Georgia.  Just last year, the Justice Department determined that the rights of Almeda County, California residents with SMI were likely violated under the ADA when the county failed to provide adequate community mental health services, resulting in individuals being inappropriately placed in large, locked psychiatric facilities “again and again.”

More recently the Justice Department launched a civil rights investigation into the mental health systems of the Commonwealth of Kentucky, specifically probing whether or not the state failed to provide adults with SMI in Louisville/Jefferson County Metro access to the most integrated settings appropriate to their needs. As Assistant Attorney General Kristen Clarke said in a press release announcing the investigation: “When people do not receive the community-based mental health services they need, they often get caught in a cycle of psychiatric hospital stays.”

So, what’s the connection to parity?

The 2008 Mental Health Parity and Addiction Equity Act (Parity Act) helps ensure essential community-based services are indeed available by requiring commercial health insurers,  Medicaid managed care plans, and the Children’s Health Insurance Program (CHIP) to cover treatment for mental health and substance use disorders no more restrictively than treatment for illnesses of the body, such as diabetes and cancer. Insurance coverage is absolutely essential for most Americans pursuing any type of care. Paying out-of-pocket is typically not an option.

Thus, parity is critical to having a robust system of outpatient mental health care. While outpatient physical health care is usually readily available, similar outpatient, community-based care should be available for mental health care. Having a robust system of outpatient mental health care is critical to the ADA.

Without parity enforcement, however, a number of things can go wrong, including restrictive authorization standards, licensure requirements, and inadequate reimbursement rates for community-based mental health care providers. Low rates often force providers to stop accepting insurance altogether, thereby decreasing the availability of community-based care.

By enforcing parity at the state and federal level, we can stop the illegal and unnecessary segregation of people with disabilities from their communities to get treatment and strengthen the overall system that will help states meet their obligations under the ADA. Parity compliance begets more community-based services, and, consequently, better compliance with the ADA.

Thank you to Mary Giliberti of Mental Health America and Elizabeth Edwards of the National Health Law Program for contributing to this post.