Show Summary Details

Page of

PRINTED FROM OXFORD HANDBOOKS ONLINE ( © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice).

Subscriber: null; date: 21 September 2018

Mental Health and Other Behavioral Health Services

Abstract and Keywords

This chapter examines mental health and other behavioral health services in the United States. It examines physical and behavioral healthcare, with a focus on when equal treatment is required and when relevant differences should be recognized. It first considers the issue of personal decision-making autonomy in the behavioral health context, with particular emphasis on the right to choose/refuse medical care/treatment. It then discusses decisional autonomy in psychiatric institutions and paternalism in the service of patient safety. It also looks at challenges in healthcare delivery for people with mental illness, focusing on the shift from institutional to community care, therapeutic advances allowing community care, and the uncoordinated nature of community care. Finally, it explores federal and state laws that address the differential treatment of behavioral healthcare by health insurers, including the Americans with Disabilities Act, state and federal parity laws, and the Affordable Care Act.

Keywords: mental health services, behavioral health, healthcare, treatment, paternalism, mental illness, community care, health insurers, parity laws, Affordable Care Act

The clinical and legal history of people with mental illness is one of exclusion. Mental illness was long treated as deviant, and the mad were lumped together with criminals as outcasts, housed in prisons or prison-like asylums. This exclusion was both caused by and reinforced a deep fear and distrust of people exhibiting symptoms of mental illness. Over time, mental illness gained conceptual separation from criminality and deviance. The emerging discipline of psychiatry established madness as an illness, subject to courses of clinical intervention and potential cure.

Mental illness, notwithstanding therapeutic advances, continues to be thought of as fundamentally different from somatic illness. Psychiatry is premised on a model of mental illness as susceptible of diagnosis and treatment in the same sense as are somatic conditions. Researchers have found, however, that deep suspicions of the mentally ill linger even among behavioral health professionals:

The clinicians in our study [psychiatrists and psychologists] associated the psychological causation of mental illness with intentionality, controllability, responsibility, and blameworthiness on the part of the patient, and they tended to view behaviors with a biological etiology as unintentional, uncontrollable, not within the patient’s sphere of personal responsibility, and less blameworthy.1

These misattributions signal that clinicians have incompletely transitioned from a relationship of blame to one of therapeutic engagement with the mentally ill. The picture is complicated by the fact that for some purposes and in some circumstances, mental illness is different. Just and equitable treatment of those with behavioral conditions depends on understanding where differences simply don’t matter—but also where differences matter a great deal.

(p. 312) Rights to personal autonomy in healthcare decision-making are nearly inviolable for most Americans, but take on a different aspect when that healthcare implicates the very impairments of cognitive processes necessary to exercise meaningful choice. Healthcare treatment itself tends to poorly serve people with behavioral health conditions, in part due to continuing separation of behavioral and physical clinical services. Treatment disparities also, however, reflect continuing fear and discomfort in this context, and the uncomfortable fact that those with behavioral health symptoms can be difficult patients. In insurance coverage, determinations of the medical necessity of treatments for behavioral health conditions can be more uncertain than such determinations for medical or surgical treatments; health insurance procedures reflect that uncertainty, but differential insurance rules seem to exceed those necessary to reflect clinical uncertainty. Legal and ethical analysis of behavioral healthcare must struggle with the imperative to assure equitable treatment for all while carefully and respectfully facing situations where difference matters.

This chapter first addresses the difficult issue of personal decision-making autonomy in the behavioral health context, where the line can blur between bias and unwarranted paternalism, on one hand, and appropriate, genuine concern for patients, on the other. It then turns to healthcare delivery challenges. American healthcare is unquestionably fragmented, and for people with mental illness, this fragmentation can be devastatingly harmful. Efforts to ensure that access to behavioral and somatic care is appropriately available and integrated is the subject of substantial effort and frustrating legal confusion. Finally, the chapter turns to the differential treatment of behavioral healthcare by health insurers, differences that are the subject of antidiscrimination and parity efforts in state and federal law. Throughout, the focus is on understanding where there are relevant differences that should drive the law of healthcare for people with behavioral health needs, and where equal treatment should simply be the order of the day.

I Personal Autonomy and the Right to Choose/Refuse Treatment

The right to direct one’s own medical care is well established in American law. Even in situations where treatment is necessary to sustain life, common law and constitutional principles accord a competent adult the right to refuse that treatment. Difficult cases arise where a court has determined that a patient has lost the capacity to consent. In such cases, courts struggle with questions of discerning what the patient would choose if competent, or what course of action is in the incompetent patient’s best interest. Some older cases limited the right to protect minor children who would suffer from the death of the patient. More recent cases have removed that exception, and patient autonomy to accept or reject treatment is now broadly recognized.2 As a result, the law generally upholds patients’ right to refuse treatment if they have not been declared incompetent.

(p. 313) Our society and our courts have not resolved the question of whether and under what circumstances people with mental illness retain or lose that right. Confusion over the extent to which competent people with mental illness may be deprived of the right to choose their own healthcare arises in two contexts. First, the law is unsettled on whether and to what extent patients who have been involuntarily committed to a psychiatric hospital, but who have not been determined by a court to have lost decisional capacity, may be deprived of their right to direct their own medical care. Second, in many jurisdictions, autonomy rights are further curtailed through “involuntary outpatient commitment,” a process by which people neither in need of institutionalization nor adjudged incompetent are deprived of decisional autonomy due to their mental illness. In both settings, the treatment is unequal; we allow people with physical illness to refuse care even if most would disagree, but we do not accord those with mental illness the same right to make apparently bad choices. It is, therefore, important to assess the validity of the differential treatment.

a. Decisional Autonomy in Psychiatric Institutions

It was long the practice of mental health practitioners to conflate the determination to subject a person to involuntary commitment (usually after a court finding that he is an imminent danger to himself or others) with the decision that the person is incompetent to make treatment decisions. That conflation was understandable on the surface, as the decision to commit is a weighty one involving a dramatic loss of liberty, and it was widely assumed that the arguably greater deprivation (involuntary hospitalization) implied the arguably lesser (loss of decisional power). The conflation seems inconsistent, however, with the general rule that a person retains decisional autonomy unless and until he is adjudged incompetent to control his own treatment. The standard for institutional commitment does not entail a judgment of decisional incompetence, but in practice often (although not in all jurisdictions) is treated as though it does.

Central to the concept of decisional autonomy is the notion that people are free to make decisions with which we disagree. The modern doctrine of informed consent generally empowers patients to make their own treatment decisions even where those decisions run counter to the medical advice they receive. Physicians are generally obliged to inform patients of their choices, and of the risks and benefits of different options. The information is sometimes technical, and the ability to assess all of the implications of medical conditions and treatments necessitates medical judgment. The information about the choices, then, is medical, but the American notion of decisional autonomy means that patients may act on this information according to their risk tolerance, life goals, and personal circumstances. The advice is expert; the weighing of options (e.g., tolerance for side effects; particular (p. 314) aversion to possible negative outcomes; and unwillingness to become dependent on others) is not, and foolish choices are generally as protected as wise ones. The right to decisional autonomy can be negated by a court’s finding that a person is incompetent—cognitively unable to understand and act upon important decisions. Commitment standards ordinarily do not include a judgment of incompetence, but turn on a prediction of dangerousness, and it therefore does not follow that a committed person should be deprived of decisional autonomy. Competency laws require a court to find a lack of capacity that is entirely distinct from a presence of dangerousness. The puzzle of why courts might conflate the two is an important one, and courts have come to different conclusions.

Federal courts often treat institutionalized persons as having lost much of their right to choose, relying on Washington v. Harper. In Harper, a state prisoner was housed in a prison’s mental health unit, where he initially consented to the administration of antipsychotic drugs. When he later revoked his consent to treatment, a committee of prison employees, including a psychiatrist, a psychologist, and a prison administrator found that he “suffer[ed] from a mental disorder and [was] gravely disabled or dangerous.” The prisoner sued, claiming that his rights under the Due Process Clause of the Fourteenth Amendment protected his right to judicial process before he could be forcibly medicated. The Washington State Supreme Court agreed, holding that the prisoner’s liberty interest in controlling his medical treatment entitled him to judicial process through which the state was required to prove by “clear, cogent, and convincing evidence” that the administration of medication to a competent, nonconsenting prisoner was “both necessary and effective for furthering a compelling state interest.”3

On appeal, the U.S. Supreme Court reversed, finding that the non-judicial prison process adequately protected the prisoner’s rights. While the prisoner’s liberty interest in medical autonomy was acknowledged to be substantial, the Court found the prison’s process constitutionally sufficient, thereby permitting the involuntary medication of competent prisoners without providing access to any judicial or quasi-judicial process.4 The Court’s majority assumed that a treating psychiatrist would only prescribe appropriate medications, and that the panel of prison employees was an appropriate body to review the treating psychiatrist’s judgment. The panel’s decision, the Court found, was a mixed medical and penal one, presenting issues in which courts should seldom interfere.

Harper might have been regarded as an anomalous case, limited in its application to prisoners. But the rationale of Harper has been applied broadly by courts faced with federal due process challenges to the involuntary administration of drugs. In DRNJ v. Velez, for example, the U.S. Court of Appeals for the Third Circuit in 2015 applied the Harper rule to a claim by patients involuntarily committed to a psychiatric hospital. The court found that permitting the hospital’s medical and administrative personnel, and not courts, to review involuntary treatment decisions was appropriate because, as the Harper Court had found, “[t]‌he risks associated with antipsychotic drugs are for the most part medical ones, best assessed by medical professionals.”5

(p. 315) The modern informed consent doctrine, however, explicitly removes medical decision-making from the medical realm and, by according individuals a right to make the choice, places it in the legal realm. The informed consent doctrine is rooted in the “concept, fundamental in American jurisprudence, that ‘[e]‌very human being of adult years and sound mind has a right to determine what shall be done with his own body… .’”6 The reservations for children and those not of “sound mind” help to explain the differential treatment of people with mental illness. Like children, people with mental illness have conditions that implicate the nature and quality of their cognitive abilities. Those courts that deny autonomy rights to people with mental illness likely believe that these cognitive differences render paternalism more appropriate than autonomy.

But there is a well-established legal process in each state for evaluating the decisional competence of adults, and that process involves the right to judicial review. In explaining why those committed because of their mental health lack a right to judicial process, the DRNJ court elided the distinction between the dangerousness standard that must be met for commitment purposes, and the capacity standard that must be met for competency purposes:

It would be passing strange if due process were to permit the State to forcibly medicate a criminal whose conviction bears no suggestion of physical dangerousness without a judicial hearing, while mandating judicial hearings for mentally ill people who have already been adjudicated to be so dangerous as to require civil commitment.7

But why would such a result be “passing strange”? Individuals who have been civilly committed are deprived of their freedom of movement, but not of all legal rights. What justifies losing the right to refuse psychotropic medication? The need to protect prison guards, hospital personnel, and other patients from possible harm is significant, but does not explain why competency determinations are “medical” for people with a psychiatric diagnosis, and legal for everyone else. The decision to act over the patient’s objection is paternalistic—reflecting a desire to help the mentally infirm—in a way that does not arise, for example, when a person refuses a life-saving operation for personal or religious reasons.

Not all courts acquiesce in Harper’s brand of medical paternalism. Several state courts interpreting state law have held that the fact of involuntary commitment does not permit a competent person to be involuntarily medicated as a matter of medical judgment. Instead, these courts require judicial process—as is required for any non–mentally ill person whose treatment judgments are challenged. The court, and not a doctor, determines whether the patient’s right to decisional autonomy should be abrogated for his own good or the good of those with whom he resides.8

Although society often limits the autonomy of people in categories that bespeak diminished decision-making ability, Harper and DRNJ involved neither children nor people (p. 316) determined by a court to be incompetent but people with mental illness who had been physically committed to a psychiatric institution. As the law presumes competence absent a judicial finding to the contrary, the new category of paternalistic intervention requires some justification. Those generally relied on by courts—relative accuracy of medical treatment choices and the inconvenience of invoking judicial process—would swallow the general presumption of competence rule entirely if taken at face value, and no one would be entitled to a judicial determination of incompetence. The justification is likely otherwise and simple: a seldom-articulated belief that people with mental illness serious enough to justify involuntarily commitment also substantially lack decision-making capacity. However, it is one thing to say that committed patients likely do not have decisional capacity. It is another to deprive someone who has been committed of a generally applicable right to judicial process when he challenges that assumption.

b. Paternalism in the Service of Patient Safety: Involuntary Outpatient Commitment

Paternalistic treatment of people with mental illness finds expression in the community as well as in psychiatric hospitals. The involuntary commitment process for people with serious mental illness has undergone a number of changes over the last fifty years. Prior to the 1960s, hospital commitment often followed a somewhat circular finding that the patient was “in need” of inpatient psychiatric care. With the advent of effective medications and the emergence of the due process revolution after mid-century, the standard generally shifted to one of dangerousness, and permitted the state to exercise its police power when the patient was dangerous to others or its parens patriae power when he was dangerous to himself. Coupled with fiscal pressures for deinstitutionalization, these new standards may have been too restrictive, leading to the emergence of a class of homeless people unable to care for themselves but not presenting an imminent danger. The legal pendulum therefore swung back, relaxing to some degree the standard for dangerousness and allowing commitment on the grounds of self-neglect presenting a threat of grave harm.9

More recently, controversies have arisen in the context of amendments to commitment laws permitting a court to order not hospitalization, but “involuntary outpatient commitment” (IOC) or “assisted outpatient treatment” (AOT). Under these amendments, courts apply some variant of a dangerousness or self-neglect test to a person with mental illness not alleged to need inpatient care. If the patient meets this outpatient standard, he is ordered to undergo a specific course of outpatient care. These amendments are often justified by the argument that, although the individual is less likely to be dangerous than the inpatient standard would require, the IOC infringements on liberty are also less severe, so that the balance struck between the deprivation of liberty and the danger to self or others is therefore appropriate.

(p. 317) Under IOC, a court orders the person to participate in treatment without any finding that the person is incompetent to make treatment decisions. Mechanisms for enforcing the order vary, but include the overt or implicit threat of inpatient commitment. IOC, then, is paternalistic to an extent that goes beyond traditional commitment law. The application of IOC in this setting raises a question very similar to that raised in connection with Harper and DRNJ: Why override the treatment choices of competent people with mental illness but not competent people with physical illness? Isn’t a person who refuses a blood transfusion or cancer care similarly at grave risk of harm?

American legislation and regulation has pockets of “hard paternalism” in which government prohibits behavior on the grounds that an actor is harming (almost always) himself by acting incorrectly; criminalization of heroin, motorcycle helmet mandates, and limitations on the size of sugary drinks offered for sale come to mind. IOC, however, seems a version of “soft paternalism” through which government attempts to protect a person’s “true” choice when that person may be acting under duress, ignorance, incapacity, or any other circumstance that threatens autonomy.10

Is IOC an acceptable form of government paternalism? The answer to this question requires grappling with a paradox of difference: Are people with mental illness improperly being treated differently by IOC or do their differences render IOC acceptable? It may be that depriving people with mental disabilities of autonomy is best explained by residual fear and distrust of the mentally ill, with the result that society continues to treat them as second-class citizens. If so, then federal antidiscrimination law may have something to say about the differential treatment.

A series of federal antidiscrimination statutes were enacted in the last quarter of the twentieth century to benefit either people with mental illness or people with disabilities more generally.11 The Americans with Disabilities Act (ADA), enacted in 1990, is the most important of these, and was intended by Congress to combat the historical stigma experienced by people with disabilities.12 It generally prohibits disparate treatment of people with mental disabilities in access to care, including in an unequal, separate, or segregated setting.13 From this perspective, IOC seems to be an unequal application of governmental control, separately treating people with mental illness. Moreover, the availability of IOC may lower the threshold of commitment for a judge considering the fate of a person with mental illness—tempting her to impose coercive treatment on a marginal patient whom she might have released given only institutionalization as an alternative.

In most cases, however, the ADA is triggered only if treatment is stigmatizing in comparison to another, similarly situated group. People with mental illness may not to be similarly situated to people with physical illness when facing possible commitment. Other than very rare cases involving people with communicable diseases, it is only people with mental illness (p. 318) who are subject to involuntary confinement. In addition, one of the central purposes of the ADA was to protect people with disabilities from social isolation, as is described in the next section’s discussion of the Supreme Court’s Olmstead decision.14 From that perspective, IOC can be seen as a positive step, as it may shift care for people with severe mental illness from institutional settings to the community, in essence creating a middle ground that benefits people with mental illness. Instead of substituting for release, IOM may lead judges to commit to outpatient care a marginal patient who would otherwise have been institutionalized.

II Healthcare Delivery—Fragmentation and Community Care

a. Deinstitutionalization

Mental healthcare experienced a leap forward in the mid-twentieth century when the norm for the care of people with significant mental illness shifted from institutional to community care. Deinstitutionalization was a social movement to allow people with mental illness to escape isolation and rejoin society by providing them with community-based health services. In mid-century, approximately 550,000 people were long-term patients in psychiatric hospitals. The daily census of psychiatric hospitals has dropped tenfold to approximately 50,000. The shift in the default from inpatient to outpatient care was accelerated by Olmstead, a 1999 U.S. Supreme Court case that recognized a limited right conferred by the ADA on institutionalized persons to receive optimal care in the community.15

People leaving hospitals were not, however, cured of their illnesses, and their freedom was dependent on access to clinical treatment and social services. Institutional closure was meant to coincide with an increase in access to community services facilitated by new laws such as the Community Mental Health Centers Act of 1963 and the Medicaid Act in 1965, which promised injections of new federal funds for community care that only partly materialized.16 Although the daily census of psychiatric institutions has dropped dramatically, moreover, admissions to inpatient mental healthcare remain very common, running approximately 660,000 per year. “Deinstitutionalization,” then, is best thought of as a sharp reduction in long-term institutionalization, with a complicated successor: community care augmented for those with serious mental illness with periodic returns to a hospital environment.

b. Therapeutic Advances Allowing Community Care

Community care succeeds when it permits people to maximize their independence and quality of life, reduce the severity of their symptoms, and avoid the need for more intensive (p. 319) care. This care must include in the first instance the therapeutic advances that permitted the depopulation of the psychiatric hospitals. The first wave of effective antipsychotic medications such as chlorpromazine came into use beginning in the 1950s, allowing relief for many patients from severe symptoms such as hallucinations and delusional thinking. These sometimes caused side effects including weight gain, lethargy, restlessness, and—more rarely—tardive dyskinesia, an irreversible neurological disorder associated with involuntary muscular tics and movements. A second generation of “atypical” antipsychotics such as olanzapine was introduced in the last two decades and may allow relief with fewer side effects. Several drugs now treat major depression, including monoamine oxidase inhibitors, tricyclic antidepressants and selective serotonin reuptake inhibitors (SSRIs) such as paroxetine. Bipolar disorder symptoms may be addressed by a range of drugs including mood stabilizers, lithium, and antipsychotics. Of course, the side effects of many of the drugs prescribed for mental illness require close medical management.

Substance use disorders often coexist with mental disorders. Addiction to and misuse of drugs such as opioids, cocaine, and methamphetamine can cause disengagement from social responsibilities, loss of control, and physical health problems. Treatments for substance use disorders include psychotherapeutic counseling, group counseling, and peer support. For opioid addiction, these treatments are sometimes supplemented with pharmacological agents such as methadone, buprenorphine, or extended-release injectable naltrexone. These drugs reduce cravings for opioids, and improve retention in psychotherapeutic treatment programs. As is true with antipsychotic drugs, medical management of these treatments is important.

There are several types of psychotherapeutic treatment, including psychodynamic therapies, by which patients address how past experiences affect current mental states, with an emphasis on uncovering unconscious reasons for psychiatric symptoms; behavioral therapies, which focus not on past experiences but on present mind states in order to address mental abnormalities; and humanistic therapy, which focuses on the patients’ subjective feelings and self-awareness to improve patients’ mental states.17

Acceptance of psychotherapy’s efficacy in treating mental illness has waxed and waned over time, but in recent years some forms have gained broad acceptance as evidence-based treatments. It is well established, for example, that cognitive behavioral therapy (a short-term, goal-oriented approach to psychotherapy) can be effective in the treatment of anxiety disorders, depression, and schizophrenia. Many patients are attracted to these forms of therapy instead of or in addition to drug therapy because drugs are ineffective or only partially effective in the treatment of some symptoms, can cause significant physical side effects, and leave unaddressed many of the social deficits many people with mental illness experience. Perhaps for these reasons, a recent metastudy found that patients are three times more likely to prefer psychological counseling than drug therapy.18

(p. 320) c. The Uncoordinated Nature of Community Care

As has been observed by many, the development of community services failed to keep pace with the shift of care from institutions to the community. These failures often left individuals with mental illness at a loss when they left hospitals, with many continuing to be isolated in ramshackle facilities with little or no follow-up care. Without a suitable safety net, these individuals often became homeless or incarcerated. The frequency of incarceration, typically after conviction for minor “quality of life” offenses, spawned the term “transinstitutionalization”—capturing the reality that people with mental illness often left psychiatric hospitals not to lead an independent life in the community but only to move to another institution.19

One feature of the healthcare system dominates the clinical and legal analysis of the harms experienced by people with behavioral conditions: its fragmentation. The subject of voluminous scholarship,20 fragmentation is a byproduct of success. The twentieth century saw dramatic advances in medicine. New modalities of care were developed for cardiovascular, oncological, and other conditions that had been largely untreatable. These new treatments were often delivered in acute (frequently surgical) settings, with one or a few episodes of intense service. Partly as a result of those advances, the number of Americans living with chronic conditions is large and growing. Curing previously fatal conditions also has increased longevity, and the incidence of chronic illness rises inexorably with age.

Coordination is necessary to provide appropriate health treatment for people with behavioral health conditions. The side effects of many psychoactive drugs can be significant, and close attention to the appearance of those side effects is critical. Similarly, the effects of the drugs employed in medication-assisted substance abuse treatment must be carefully monitored. In addition, the interplay of drug therapy and talk therapy for people with conditions such as schizophrenia, anxiety disorders, and depression calls for coordination among the (p. 321) various professions providing the different treatments. Many people with major mental illness also have a co-occurring substance use disorder, which amplifies this need.

Looming over these coordination challenges within mental healthcare is the fact that people with behavioral health conditions as a group also suffer relatively poor access to physical healthcare. As a result, people with serious mental illness experience highly elevated mortality and morbidity rates. Research has demonstrated that patients treated in state public mental health systems (presumably those with very serious illnesses) died, on average, twenty-five years younger than the general population. Some of this excess mortality is due to suicide or accidents related to the mental illness. Most, however, is not: “the majority of excess deaths [are] due to medical illness rather than ‘unnatural’ causes such as suicide.”21 The years of potential life lost are often attributable to treatable chronic conditions such as vascular, respiratory, and cardiac disease.

Notwithstanding laws such as the ADA, denials of care still occur. A large study of people with schizophrenia conducted by Joseph McEvoy and colleagues found high rates of hypertension, obesity, elevated cholesterol, and diabetes; it also found that those individuals very often were not receiving treatment. Thirty percent of subjects with diabetes were not receiving treatment, nor were 62% of those with hypertension, and 88% of those with elevated cholesterol.22 Significantly, the study’s subjects were all patients of mental health programs at major universities with sophisticated capacity to provide needed physical health services. Many things contribute to these shortfalls in treatment. Because of the at-times-difficult behaviors that characterize the lives of those with substance use disorders and mental illness, people with behavioral conditions may not be the favorite patients in physicians’ offices. In addition, the life challenges faced by those with behavioral conditions, including difficulty finding and maintaining employment, housing, family connections, and broader social networks, can interfere with their ability to make and keep medical appointments.

d. Integrated Care and Its Barriers

In behavioral healthcare, lack of coordination is exacerbated by the gulf that often exists between physical and behavioral care. The problem manifests in two ways. First, people with serious mental illness often have access to care through dedicated university clinics and community mental health centers. The focus of these clinics and centers is the amelioration of serious behavioral conditions such as bipolar disorder, schizophrenia, and major depression. The task of keeping patients under care, fostering engagement in receiving treatment, and working with patients to achieve recovery can be daunting. The press of these tasks diverts attention from physical health needs, which often are regarded as someone else’s (p. 322) concern. Specialization in professional training tends to accentuate that separation, which reimbursement and licensing rules for healthcare facilities further reinforce.

Second, primary care physicians and nurses, hospital-based primary care clinics, and community health providers such as Federally Qualified Health Centers (FQHCs) serve patients’ basic medical needs, but often not their behavioral health needs. A very high percentage of patients with mental health or substance abuse conditions present initially in primary care settings. Others remain with primary care practitioners for treatment, often because of difficulty locating appropriate sources of referral for behavioral healthcare, or because the primary care practitioner elects to provide it.23

The problems in these two settings mirror each other. Behavioral health specialists often fail to identify chronic physical health problems, or find themselves ill-equipped to manage them or refer the patient elsewhere for primary care. Primary care providers and community health clinics often fail to recognize behavioral health issues, or find themselves unable to manage or refer the patient elsewhere for care of mental health or substance use disorders.

Many caregivers work hard to patch together a system of care for patients with complex needs. In addition, much good work has been done to initiate novel clinical models that integrate care. Some models bring primary care practitioners together with those serving patients with serious mental illness. For example, the Cherokee Health System in Tennessee was a provider of behavioral health services that moved to an integrated practice mode, embedding a primary care team in its behavioral health practices. The Cherokee model has reduced the incidence of emergency department use by coordinating care for complex patients.24 Others bring mental health and substance use disorder services into primary care settings such as FQHCs and other community health clinics. Community Health Center in Connecticut, for example, is an FQHC that has incorporated behavioral health services into its range of services. All patients receive behavioral health screening in the primary care (p. 323) setting, and receive a “warm handoff” to a behavioral health professional in the same examination room.25

Nonetheless, practical barriers can impede the integration of behavioral health and physical health services among previously unconnected providers or of creating integrated systems within a single healthcare center. First, primary care professionals may be unused to working with behavioral health caregivers, and cultural accommodations in the workplace may be necessary.26 Second, record-keeping concerns may arise, as the privacy requirements differ for different types of health records.27 Third, reimbursement programs based on fee-for-service payment have long been wary of care methods that involve multiple professionals billing separately on the same day.28 On the other hand, changes in payment and delivery in connection with the implementation of the Affordable Care Act, such as bundled payments, behavioral health homes, and gainsharing programs, offer bridges to more comprehensive care.29

Another barrier is the licensure of facilities seeking to provide integrated care. Progress here has been slower, perhaps because state law tends to evolve in an unpredictable, piecemeal fashion. Most healthcare facilities larger than a single professional’s office—including FQHCs, mental health centers, and community health clinics—require licensure. Licensure of each type of facility is often controlled by a dedicated state agency, and is commonly governed by distinct standards. This separateness has its roots in both concern over protecting people with mental illness and fear (however unwarranted) that behavioral health patients might pose a danger to physical health patients. Efforts to bring modern licensure rules into (p. 324) harmony with clinical preferences for integration run into bureaucratic inertia and agency infighting. Without that cooperation, the financial burden of filing for separate licenses from separate agencies can be significant. Even more troubling is the requirement of physical separation between the two groups of patients, extending in some cases to separate waiting rooms, hallways, and even entrances.30

One spur to progress in this area is the threat of scrutiny under disability discrimination law. The ADA, enacted in 1990, is the most important of several federal antidiscrimination statutes were enacted in the last quarter of the twentieth century.31 An important role of the ADA is to combat the historic tendency to “isolate and segregate individuals with disabilities.”32 In addition to its prohibition of unwarranted institutional isolation, as embodied in the Olmstead opinion discussed above, the ADA protects access to private doctors’ offices and hospitals. Under Title III of the ADA, however, access to such places of “public accommodation” still may be restricted for a person with a disability if equality could be achieved only by fundamentally altering the facility.33

Title II of the ADA applies to government, including state regulators responsible for licensing programs. State agencies must administer their programs consistent with the ADA’s “integration mandate,” must “make reasonable modifications in policies, practices, or procedures” to avoid discrimination, and “must administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”34 A requirement that a facility offering both physical and behavioral health services maintain separate entrances, clearly and visibly treats people differently on the basis of their need for behavioral health services. In the event a facility were to comply with a policy mandating separate structures and amenities, it might appear that the facility itself and not the public agency is the entity performing the discriminatory act. However, state agencies that enforce “keep separate” rules violate Title II, unless the agency is able to offer an affirmative defense.35 Title II of the ADA states:

[A]‌ public entity may not establish requirements for the programs or activities of licensees that would result in discrimination against qualified individuals with disabilities. For example, a (p. 325) public entity’s safety standards may not require the licensee to discriminate against qualified individuals with disabilities in its employment practices.36

The provision of separate facilities and services on the basis of behavioral diagnosis without a particularized, evidence-based justification therefore runs afoul of the ADA’s integration mandate and antidiscrimination provisions. These barriers should fall away over time, as state agencies grow to understand both the clinical need to break down the treatment walls and the mandates of disability discrimination law.

III Coverage or Care: Mental Health Parity

Health insurance companies historically thrived by understanding differences in healthcare need among individuals, and applying that understanding to decisions regarding underwriting (i.e., deciding who to insure) and rating (i.e., deciding how much to charge). When insurers had broad discretion to use actuarial analysis to differentiate among classes of risk on the basis of both the expected cost of providing coverage and the level of uncertainty in the computation of the expected costs, discriminatory practices followed. Young men were charged less than young women because the latter group, but not the former, could be expected to incur pregnancy costs. People with mental illness often found themselves excluded from coverage. These differences have always been muted in group policies, and were nearly nonexistent in large group coverage because the number of covered lives assured ample distribution of risk, laws prohibited favoring one set of employees over another, and most large employers self-funded their coverage. Culminating in the passage of the Affordable Care Act (ACA), however, federal and state laws have changed in recent years to substantially restrict the ability of health insurers to select among applicants on the basis of risk in small group and even individual coverage.37

a. The Americans with Disabilities Act

Shortly after the ADA was signed into law, advocates began to argue that insurers’ refusal to cover, or differently cover, care for particular disabling conditions such as AIDS constituted unlawful discrimination. As Olmstead and other cases established, the ADA was a dramatic endorsement of the notion that people with disabilities belong in society and should not be shunted off to the side. Olmstead recognized this integrationist intent when it mandated, at least in some circumstances, community-based care for people who did not medically require institutionalization.

(p. 326) When the ADA was employed to attack insurance plans that differentially treated people with disabilities, however, advocacy efforts failed. The ADA was ineffective in combating differential insurance treatment due to the ADA’s “insurance safe harbor” provision. That provision allowed insurers to use the traditional tools of the insurance trade to assess and classify risks, choosing to cover some and not others, so long as those methods were consistent with preexisting insurance law and were not employed as a “subterfuge” to avoid the antidiscrimination goals of the ADA. Under that stringent test, a challenge to a plan design that omits or restricts coverage of treatments for people with disabilities (including those with mental illness) must show more than actuarial difference. The challenge must show a conscious plan to discriminate. Such a showing is, in practice, nearly impossible to make, as the insurer can justify almost any difference as a cost-saving measure. As a result, the ADA was unable to force mental healthcare into the mainstream of insurance coverage.

b. State Parity Laws

State legislatures attempted to address insurance inequity by enacting a variety of mental health parity laws beginning in the 1970s. These laws shared the goal of improving coverage of treatment for mental health conditions, but their methods differed. Some of the early statutes prescribed minimal coverage for substance use disorder or mental health treatment. Later statutes required that behavioral health benefits be offered to purchasers of medical insurance. Others required the coverage of treatment for all people with “serious” mental illness; for all conditions listed in the DSM including substance use disorder; for all conditions in the DSM except for substance use disorder; or for “biologically based” mental illness.

In addition, the requirements of these laws sometimes differed among the individual, small group, and large group markets. More importantly, a growing number of people with nongovernmental coverage—now about 50%—became enrolled in self-funded plans that were exempt from state regulation altogether because of the federal Employee Retirement Income Security Act (ERISA) statute.38 Consequently, state mental health coverage laws conferred at best a patchwork of access for persons with mental illness.

c. Federal Parity Laws

Federal parity protection resulted from the uneven nature of states’ responses to inequity in coverage and the limits on state power imposed by ERISA. Federal intervention came in three steps: the passage of the Mental Health Parity Act (MHPA) in 1996, the passage of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA) in 2008, and the passage of the ACA in 2010. The MHPA’s passage was widely regarded as more symbolic than functional. It did not mandate mental health coverage, but imposed some requirements should it be included. It stated only that—for large group health (p. 327) plans voluntarily including mental health benefits—annual and lifetime limits could not be more restrictive for mental than for physical health coverage. There were no requirements for types of treatment covered, and plans were still free to impose different scope, duration, and cost-sharing provisions. Moreover, the MHPA did not apply to individual and small group coverage.

Like the MHPA, the MHPAEA does not mandate that health plans provide mental health coverage, but sets conditions on such coverage should a plan include it. It applies by its terms primarily to large employer groups, although the Affordable Care Act extended its application to include individual and small group plans. The most important contributions of the MHPAEA were that it extended the reach of federal parity law to substance use disorder and that it directly regulated the content of coverage. If mental health services are provided, it requires “general equivalence” in coverage decisions for both mental health and substance use disorder services, and any treatment limits or cost-sharing provisions must be no more restrictive than limits applied to substantially all medical/surgical benefits.

The final MHPAEA regulations, adopted for plan years beginning in 2014, add detail to the statutory definition of parity. Determining whether a plan is “no more restrictive” for behavioral health services requires scrutiny of several categories of coverage, including inpatient in-network, inpatient out-of-network, outpatient in-network, outpatient out-of-network, emergency, and prescription drug. Cost-sharing and treatment or day limits for each of those six types of service must be comparable between physical and behavioral health services. For example, a plan cannot impose a coinsurance charge for an out-of-network inpatient mental health stay that exceeds that for a comparable stay for cardiac care, and limits on in-network outpatient visits must be at least as generous for substance use disorder as for hypertension care.

These numerical or “quantitative” limits on coverage are important and are also relatively easy to compare. As drafters of the final regulations discerned, however, some instances of plan management are more difficult to describe and assess. In addition to quantitative limits on coverage, plans may use nonquantitative treatment limitations (NQTLs). The regulations require that NQTLs in behavioral healthcare are “comparable to, and are applied no more stringently than” those limits in physical healthcare. The regulations also provide a nonexhaustive list of NQTLs, including medical management standards limiting or excluding benefits based on medical necessity, formulary design, network tier design, standards for in-network status for providers, reimbursement rates for different providers, use of fail-first or step therapy, exclusions based on failure to complete a course of treatment, and restrictions based on facility type or provider specialty.

MHPAEA notwithstanding, the use of these tools for plan management can be free of discriminatory intent and consistent with sound and lawful insurance practices. It is, for example, proper for an insurer to refuse payment for treatment in a context for which there is no medical or scientific justification, and it can be appropriate to exclude from a network a professional with a history of providing substandard care. On the other hand, it is clear that the use of NQTLs presents an opportunity for discriminatory treatment, and regulators will strive to fashion tests evaluating the propriety of their use. Objective measurement of medical necessity, for example, is elusive at best and it is challenging to disentangle the many factors that go into formulary management to discern disparate intent or effect. Evaluation of NQTLs therefore is likely to be a flash point for behavioral health parity for the foreseeable future.

(p. 328) d. The Affordable Care Act: Behavioral Healthcare Becomes Essential

The ACA firmly moved the health insurance underwriting system away from competing on how well insurers attract healthy people and avoid those in genuine need of coverage. It largely ended preexisting condition exclusions and denials of coverage based on medical history. For these reasons, people with a history of mental illness or substance use disorder are less likely to be shut out of the insurance market today. The importance of this shift in law and policy toward insurance as a vehicle to connect people equally to care is difficult to overstate.

The ACA built on the protections of the MHPAEA by placing mental health and substance use disorder treatment front and center. The ACA describes ten “essential health benefits” that must be included in any individual or small group plan. Listed among those requirements are mental health and substance use disorder treatments: Individual and small group plans are required to offer those treatments and to do so in compliance with the terms of the MHPAEA. Together, the MHPAEA and the ACA extend parity protections to most large group plans—whether self-funded or insured—that choose to offer behavioral health coverage (most do), as well as to all individual and small group plans.

Because of these parity laws, coverage for behavioral health services has come a long way. Over time, the practice of denying enrollment to people with a history of mental illness or substance use disorder has found disfavor, and the passage of the ACA seems to have irrevocably ended that form of exclusion from coverage. As federal and state parity laws evolved, moreover, advocates for the rights of people with behavioral health conditions acquired more legal tools to challenge disparate plan design. Notably, the parity regulations call out for sanction many improper uses of quantitative treatment limits. The disparate use of NQTLs may be a last frontier for improper treatment of people with behavioral health concerns by health insurers.

The stakes are high. As is true for all people with significant chronic illness, people with mental illness or substance use disorder can be quite expensive to insure. The higher cost of covering those with behavioral health conditions creates an incentive—whether or not it is acted upon—for insurers and sponsors of health plans to cut corners on behavioral healthcare. Such stinting would serve two (now unlawful) purposes: It would immediately cut the plan’s costs, and it would drive expensive insureds to competitors’ plans. Risk adjustment and reinsurance mechanisms notwithstanding, health plans still have much to gain by shortchanging behavioral healthcare. For that reason, principled enforcement of the ban on improper use of NQTLs will be needed to permit effective utilization management by plans while guarding against discrimination against people with behavioral health conditions in a new guise.39

(p. 329) IV Conclusion

The history of society’s treatment of people with behavioral health conditions is replete with instances of differential treatment. Some treatment differences remain the result of mistrust and fear; others spring from more benign if paternalistic motives. The task of the law is to encourage the impulse to assist, but prohibit invidious, unjustifiably isolation or exclusion of those with mental illness or substance abuse disorders. People with mental illness are far from monolithic, and most are as competent to choose their care and reject unwanted treatment as any other patient.

Healthcare delivery has long treated behavioral modalities of care separately from those for physical illness. The continuation of this practice is now understood to be harmful to people with behavioral illness in most cases, as it deprives their caregivers of the ability to coordinate care. Enforcing separation of patients on the basis of their primary diagnosis therefore should be rejected unless the separation can be empirically justified on clinical or public health grounds

Health insurance is a key predicate for the receipt of integrated behavioral healthcare. After years of sanctioned exclusion of behavioral health services from many insurance products, the combination of mental health parity laws and the recognition in the ACA of behavioral healthcare as an essential health benefit have generated great progress in equalizing coverage.

Across these three critical domains—medical self-direction, organization of clinical services, and insurance coverage—people with behavioral health conditions should not be subjected categorically to differential treatment, whether as an act of invidious discrimination or as a reflection of the impulse to misguided paternalism. Rather, they should be treated as individuals, with their needs, capacities, and rights assessed accordingly.


(1) M. Miresco & L. Kirmayer, The Persistence of Mind-Brain Dualism in Psychiatric Reasoning About Clinical Scenarios, 163:5 Am. J. Psychiatry 913, 916–917 (2006).

(2) Application of the President and Directors of Georgetown College, 331 F.2d 1000 (D.C. Cir. 1964) is an example of a case limiting a patient’s range of choices to prevent harm to her children. Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990) is an example of a more recent case rejecting that exception to the general autonomy rule. For cases on the general right to refuse treatment, see Bouvia v. Superior Court, 225 Cal. Rptr. 297 (1986) (competent patient may refuse life-sustaining treatment); Lane v. Candura, 376 N.E. 2d 1232 (Mass. App. 1978) (same); Cruzan by Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 279 (1990) (assuming without deciding that Cruzan had a Fourteenth Amendment liberty interest in refusing treatment, finding lack of “clear and convincing evidence” that currently incompetent patient would have chosen to withdraw treatment if competent); In re Conroy, 98 N.J. 321, 346–348 (1985) (recognizing common law right to refuse life-sustaining treatment, finding sufficient evidence that currently incompetent patient would have chosen to refuse life-sustaining treatment).

(3) Washington v. Harper, 494 U.S. 210 (1990).

(4) See id.

(5) Disability Rights New Jersey, Inc. v. Commissioner, 796 F.3d 293, 308 (3d Cir. 2015) quoting Washington v. Harper, 494 U.S. at 233.

(6) Canterbury v. Spence, 464 F.2d 772, 780 (1972) quoting Schoendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914) (Cardozo, J.). Not all jurisdictions accept the patient-centered doctrine of informed consent. About half of the states continue to treat the choice of treatment as largely a medical one. See Jaime Staples King & Benjamin Moulton, Rethinking Informed Consent: The Case for Shared Decisionmaking, 32 Am. J. L. & Med. 429 (2006).

(7) Disability Rights New Jersey, Inc., 796 F.3d at 308.

(8) See, e.g., Rivers v. Katz, 495 N.E. 2d 337 (N.Y. 1986); Rogers v. Commissioner, 448 N.E. 2d 308 (Mass. 1983).

(9) See Donald H. Stone, Confine Is Fine: Have the Non-Dangerous Mentally Ill Lost Their Right to Liberty: An Empirical Study to Unravel the Psychiatrist’s Crystal Ball, 20 Va. J. Soc. Pol’y & L. 323 (2012–2013).

(10) See John Kleinig, Paternalism 8–14 (1984). The distinction between weak and strong paternalism is not universally accepted, and definitional concerns among philosophers abound.

(11) See The Rehabilitation Act of 1973, 29 U.S.C. §§ 791–794; Civil Rights for Persons in Institutions Act, 42 U.S.C. §§ 1997 et seq.; The Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213.

(12) See 42 U.S.C. §§ 12101(a)(2), (3), and (5). See also Martha Nussbaum, Hiding From Humanity: Disgust, Shame, and the Law 309–311 (2004) (discussing the stigma felt by people with disabilities).

(13) 42 U.S.C. §§ 12182(b)(1)(A)(ii), (iii), and (iv).

(14) Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).

(15) Olmstead, 527 U.S. 581.

(16) Community Mental Health Centers Act of 1963, P.L. 88–164, codified as amended in scattered provisions of 42 U.S.C. ch. 33. The statute creating the Medicaid program amended the Social Security Act, P.L. 89–97, codified at 42 U.S.C. §§ 1396 et seq.

(17) See U.S. Department of Health and Human Services, Mental Health: A Report of the Surgeon General 65–67 (1999),

(18) See R. McHugh et al., Patient Preference for Psychological vs. Pharmacological Treatment of Psychiatric Disorders: A Meta-Analytic Review, 74 J. Clinical Psychiatry 595 (2013) (meta-analysis of patient preferences). See also T. Wykes et al., A Meta-analysis of Cognitive Remediation for Schizophrenia: Methodology and Effect Sizes, 158 Am. J. Psychiatry 472 (2011) (meta-analysis finding support for cognitive remediation therapy for schizophrenia); T. Wykes et al., Cognitive Behavior Therapy for Schizophrenia: Effect Sizes, Clinical Models, and Methodological Rigor, 34 Schizophrenia Bull. 523 (2008) (meta-analysis finding support for cognitive behavioral therapy for schizophrenia); D. Turkington et al., Cognitive Behavior Therapy for Schizophrenia, 163 Am. J. Psychiatry 365 (2006) (same).

(19) See H. Lamb & L. Bachrach, Some Perspectives on Deinstitutionalization, 52 Pscyhol. Servs. (2001); J. Talbot, Deinstitutionalization: Avoiding the Disasters of the Past, 1979 Hosp. & Community Psychiatry 621. For a somewhat more positive analysis of the history of deinstitutionalization, see S. Bagenstos, The Past and Future of Deinstitutionalization Litigation, 34 Cardozo L. Rev. 1 (2012).

The extent to which transinstitutionalization has occurred and, if so, what might be its causes and cures is a subject of much discussion in the literature and is beyond the scope of this chapter. See, e.g., A. Primeau, Deinstitutionalization of the Mentally ill: Evidence for Transinstitutionalization from Psychiatric Hospitals to Penal Institutions, 2 Comp. Psychol. 1 (2013); Steven Raphael & Michael A. Stoll, Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate, 42 J. Legal Stud. 187 (2013); Seth J. Prins, Does Transinstitutionalization Explain the Overrepresentation of People with Serious Mental Illnesses in the Criminal Justice System?, 47 Community Mental Health J. 716 (2011); Chris Koyanagi, Kaiser Commission on Medicaid and the Uninsured & Judge David L. Bazelon Center for Mental Health Law, Learning From History: Deinstitutionalization of People with Mental Illness as Precursor to Long-Term Care Reform (2007),

(20) See, e.g., The Fragmentation of U.S. Health Care: Causes and Solutions (Einer Elhauge ed. 2010); Robert L. Kane et al., Meeting the Challenge of Chronic Illness (2005); Comm. on Quality of Health Care in Am., Inst. of Med., Crossing the Quality Chasm: A New Health System for the 21st Century (2001).

(21) Benjamin G. Druss & Thomas H. Bornemann, Improving Health and Health Care for Persons with Serious Mental Illness, 303 J. Am. Med. Ass’n 1972 (2010). See also Craig W. Colton & Ronald W. Manderscheid, Congruencies in the Increased Mortality Rates, Years of Potential Life Lost, and Causes of Death Among Public Mental Health Clients in Eight States, 3 Preventing Chronic Diseases A42 (2006).

(22) Joseph P. McEvoy et al., Prevalence of the Metabolic Syndrome of Patients with Schizophrenia, Schizophrenia Research 19–32 (2005).

(23) See Jürgen Unützer et al., Transforming Mental Health Care at the Interface with General Medicine: Report for the President’s Commission, 57 Psychiatric Serv. 37 (2006); U.S. Dept. Health & Human Servs., Report of a Surgeon General’s Working Meeting on the Integration of Mental Health Services and Primary Health Care (2001),; Sarah Klein & Martha Hostetter, In Focus: Integrating Behavioral Health and Primary Care, Commonwealth Fund (August/September 2014),

(24) See, e.g., Deborah J. Cohen et al., Agency for Healthcare Research and Quality. A Guidebook of Professional Practices for Behavioral Health and Primary Care Integration: Observations from Exemplary Sites (2015), (identifying CHS as one of eight high-performing primary care organizations with integrated behavioral health and primary care); Chris Collins et al., Milbank Memorial Fund, Evolving Models of Behavioral Health Integration in Primary Care 36 (2010), (highlighting CHS as an example of a unified primary and behavioral health program); Nat’l Ass’n of Community Health Ctrs., Educational Health Centers: Teaching and Learning in the Community, at 1, 8 (Nov. 2015) (identifying CHS as a “Best Practice” Educational Health Center Site: “CHS is known across the country as being one of the nation’s leading ‘best-practice’ programs in the integration of behavioral health and primary care, and they have also become known for their ability to train health professionals in this 21st-century, integrated, collaborative-care model”),

(25) See Chris Collins et al., supra note 24. See generally David Mechanic, Seizing Opportunities Under the Affordable Care Act for Transforming the Mental and Behavioral Health System, 31 Health Aff. 376 (2012); Emily Woltmann et al., Comparative Effectiveness of Collaborative Chronic Care Models for Mental Health Conditions Across Primary, Specialty, and Behavioral Health Care Settings: Systematic Review and Meta-Analysis, 169 Am. J. Psychiatry 790 (2012); Thomas W. Crogan & Jonathan D. Brown, Integrating Mental Health Treatment into the Patient Centered Medical Home (Mathematica Policy Research for U.S.D.H.H.S., Agency for Healthcare Research and Quality, June 2010), available at; Deborah M. Scharf et al., Rand Corp. for N. Y. State Health Found., An Examination of New York State’s Integrated Primary and Mental Health Care Services for Adults with Serious Mental Illness (2014),

(26) See Chris Collins et al., supra note 24, at 15.

(27) Federal law, for example, protects the confidentiality of alcohol and drug treatment and prevention records. Federal laws recognize the stigma and potential discrimination surrounding addiction, and therefore carry enhanced confidentiality and patient consent requirements. See 42 U.S.C. §§ 290dd-2 et seq.; 42 C.F.R. §§ 2.1 et seq.

(28) See John V. Jacobi et al., Integration of Behavioral and Physical Care: Licensing and Reimbursement Barriers and Opportunities in New Jersey 41–52 (2016),

(29) See Deborah Bachrach et al., State Strategies for Integrating Physical and Behavioral Health Services in a Changing Medicaid Environment (Commonwealth Fund, August 2014), available at; Benjamin G. Druss et al., Budget Impact and Sustainability of Medical Care Management for Persons with Serious Mental Illness, 168 Am. J. Psychiatry 1171 (2011); Chris Collins et al., supra note 24.

(30) See Jacobi et al., supra note 28, at 15–30.

(31) See The Rehabilitation Act of 1973, 29 U.S.C. §§ 791–794; Civil Rights for Persons in Institutions Act, 42 U.S.C. §§ 1997 et seq.; The Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213.

(32) 42 U.S.C. § 12101(2). See 42 U.S.C. § 12101(5) (“individuals with disabilities continually encounter various forms of discrimination, including … overprotective rules and policies, failures to make modifications to existing policies and practices, … [and] segregation.”).

(33) 42 U.S.C. § 12182(b)(2)(A)(i) and (ii).

(34) 28 CFR § 135.130(b)(6), (7) and (8)(d). See Jacobi et al., supra note 28, at 39–40.

(35) It may be that public health and safety motivates the policy. Such concerns, however, only form a defense to differential treatment on the basis of actual or perceived disability if the differential policies “are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” 28 CFR § 135.130(h). In the alternative, it may be that the policy is motivated by a concern that people with behavioral conditions present a threat of harm to others using the facility. A defense based on such a threat is only valid, however, if the public entity makes “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.” 28 CFR § 135.139(b).

(36) TAM § II-3.7200. See Reeves v. Queen City Transportation, Inc., 10 F. Supp. 2d 1181, 1185–1187 (D. Colo. 1998) (distinguishing for Title II purposes between discriminatory acts of a regulated business that are, and are not, mandated by a public entity).

(37) See Deborah A. Stone, The Struggle for the Soul of Health Insurance, 18 J. Health Pol., Pol’y & L. 287 (1993); Leah Wortham, Insurance Classification: Too Important to Be Left to the Actuaries, 19 J. L. Reform 349 (1986).

(38) See John V. Jacobi, Parity and Difference: The Value of Parity Legislation for the Seriously Mentally Ill, 29 Am. J. L., Med. & Ethics 185 (2003).

(39) The final regulations were published at 78 FR 68240 (Nov. 13, 2013). For discussion of the issues raised by the final regulations see, e.g., John V. Jacobi, Tara Adams Ragone, & Kate Greenwood, Health Insurer Market Behavior after the Affordable Care Act: Assessing the Need for Monitoring, Targeted Enforcement, and Regulatory Reform, 120 Penn St. L. Rev. 109 (2015); Ellen Weber, Equality Standards for Health Insurance Coverage: Will the Mental Health Parity and Addiction Equity Act End the Discrimination?, 43 Golden Gate L. Rev. 1079 (2013).