Mental health parity act creates new, increased risks
Are you ready for an influx of mental health patients and the potential risks they bring? The Mental Health Parity and Addiction Equity Act (MHPAEA) requires many insurance plans to cover mental health or substance use disorders more than in the past, and that change will mean more mental health patients in your facility.
Historically, millions of Americans with disorders related to mental health and alcohol, drug and substance abuse have not had adequate insurance protection to afford the costs of treatment, notes David H. Smith, JD, partner at Garvey Schubert Barer in Seattle. The MHPAEA now makes it easier for those Americans to obtain the care they need by prohibiting certain discriminatory practices that limit insurance coverage for behavioral health treatment and services. The MHPAEA requires many insurance plans that cover mental health or substance use disorders to offer coverage for those services that is no more restrictive than the coverage for medical/surgical conditions, Smith explains.
That increase brings potential problems that healthcare risk managers should assess, suggests Roger L. Hillman, JD, an owner with Garvey Schubert Barer. A higher volume of mental health patients brings a potential increase in violence and self-harm, Hillman says.
"It's not just that there is a higher tendency to violence among these patients. The issue is also that the increased patient load could mean you are spending less time with patients or seeing them less frequently," explains Hillman, noting that he has defended providers against those claims recently.
The risk is dependent on state law regarding the duty that healthcare providers have to third parties, Smith notes. Case law in the states varies on the issue, with some assigning more responsibility for the provider to protect others from danger when the patient is known, or should have been known, to have a propensity for violence. (See the story on p. 44 for more on mental health-related lawsuits.)
"This is not a traditional medical negligence risk. Many states have statutes or common law that establishes a provider's duty to warn or protect third parties," Smith explains. "This is a different concern from most that a provider has to worry about, where the duty is to the patient. With mental health issues, you can be responsible for what happens to a third party who is not even on your property."
There are concerns as to whether the present mental health care system, both public and private organizations, can handle the anticipated increase of patients who can now receive treatment, Hillman says. This increase could have an adverse impact on the frequency and length of treatment, which might be perceived as impacting its effectiveness, he notes.
While there is awareness of the MHAPAEA among many mental health practitioners, the related legal issues and the overall impact on the healthcare infrastructure still are emerging, Hillman says. In addition to the risk of lawsuits alleging that a provider should have known a patient could harm a third party, there also is the risk of the provider being sued for not preventing a patient suicide, he says. Healthcare providers also should assess whether their team approach to mental health is adequate, to ensure that the patient doesn't fall through the cracks. (See the story on p. 45 for more on the team approach.)
Predicting future violence among criminal offenders is difficult, but predicting violence among the general population, who are not criminals and who are simply receiving treatment for a wide range of mental health issues, is nearly impossible, says Richard L. Packard, PhD, clinical and forensic psychologist in Seattle, who performs psychological and forensic evaluations with legal cases. "We have no well-established, scientific methods to understand whether a mental health client coming in off the street would be violent," Packard says. "There is a huge gray area with people who have never been violent and how to predict whether they will be violent in the future."
Mental health professionals are aware of the MHPAEA but do not appreciate all of the details of the law yet, Packard says. "There are lawyers around me every day who specialize in mental health law, and we're having discussions about the MHPAEA," he says. "No one really knows what to say yet. It's important to seek legal counsel and to understand all of the details of the law."
Hillman notes that most providers do not consider the risks from dangerous mental health patients until they are sued. Even brief and inconsequential treatment of a patient can draw a provider into a lawsuit years later, he says.
"When somebody shoots up a movie theater, they will find out that he saw a psychiatrist in your hospital two times and three years ago, and suddenly you're a party in the lawsuit," Hillman says. "All your records become discoverable, and they will go over them with a microscope until they find something. They will be able to get someone to come in and say what you did with that patient was inadequate."
- Roger L. Hillman, JD, Owner, Garvey Schubert Barer, Seattle. Telephone: (206) 816-1402. Email: email@example.com.
- Richard L. Packard, PhD, Clinical and Forensic Psychologist, Seattle. Telephone: (206) 321-1017. Email: firstname.lastname@example.org.
- David H. Smith, JD, Partner, Garvey Schubert Barer, Seattle. Telephone: (206) 816-1392. Email: email@example.com.