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December 22, 2021

Eating Disorders – Treatment Amidst a Worsening Mental Health Crisis

Chris Kutne and Joseph P. DiBella


Eating disorders afflict millions of people every day. What services are available to those suffering from this prevalent condition? The COVID-19 pandemic has only increased the volume of people experiencing these disorders, and locating treatment options has become more difficult because of social distancing and other precautions instituted during the pandemic. It is not easy to find a provider capable of offering effective care for such conditions, as treatment specific to eating disorders is underfunded and in limited supply. Now more than ever before, treatment services for eating disorders are essential to have available, because failing to treat and deal with such conditions amidst a worsening climate, including lack of insurance coverage and providers of care, manifests greater physical harm to Americans.

Eating Disorders Generally

As many as 20 million women and 10 million men in the United States will have an eating disorder at some point in their lives. Teenage girls are disproportionately affected; over one-half of teenage girls (and almost one-third of teenage boys) use unhealthy weight control behaviors, such as skipping meals, fasting, smoking cigarettes, vomiting, and taking laxatives. People struggling in this manner will more often than not be grappling with another mental or behavioral health condition. A study of patients hospitalized with an eating disorder found 97 percent had one or more co-occurring conditions, including 94 percent with co-occurring mood disorders, mostly major depression; 56 percent were also diagnosed with anxiety disorders. Along with the co-occurring conditions, eating disorders have the second highest mortality rate of all mental health disorders, surpassed only by opioid addiction.

Despite the severity of these conditions, there is minimal federal funding for research on eating disorders. Funding for eating disorders research totals around $28 million annually. This pales in comparison to the funding allotted to similar conditions such as depression ($328 million/year), Schizophrenia ($352 million/year), or attention deficit hyperactivity disorder (ADHD) ($105 million/year).

The Mental Health Parity Act of 1996 (MHPA) provided that large group health plans cannot impose annual or lifetime dollar limits on mental health benefits that are less favorable than any such limits imposed on medical/surgical benefits. The problem with this law is that it has left a loophole. The policy may provide for equal dollar limits with coverage, but if the care is not available due to inadequate networks of mental health practitioners the gap remains between medical/surgical services and mental health services.

In 2008, the Mental Health Parity and Addiction Equity Act (MHPAEA) became federal law. The MHPAEA preserves the MHPA protections and adds new ones, such as extending the parity requirements to substance use disorders. Although the law requires a general equality in the way mental health/substance abuse disorder (MH/SUD) and medical/surgical benefits are treated with respect to annual and lifetime dollar limits, financial requirements, and treatment limitations, MHPAEA does NOT require large group health plans or health insurance issuers to cover MH/SUD benefits. The law's requirements apply only to large group health plans and health insurance issuers that choose to include MH/SUD benefits in their benefits packages.

The Patient Protection and Affordable Care Act builds on MHPAEA and requires coverage of MH/SUD services as one of 10 Essential Health Benefit categories in non-grandfathered individual and small group plans.

Progress is being made, but without enough practitioners treating eating disorders to begin with, many in need of such care will go untreated. Moreover, many insurance networks lack such practitioners because the less than favorable reimbursement such practitioners receive for their services discourages them from joining.

The COVID-19 Pandemic

Information out of England shows that the number of individuals admitted to hospitals for eating disorders has dramatically increased since the beginning of the pandemic. As the pandemic took hold, researchers additionally noted a 61 percent increase in the inquiries of treatment for anorexia nervosa, and a rise of 26 percent in the number of inquiries regarding treatment for binge eating disorder. The pandemic and increased demand for treatment of these conditions have resulted in increased waiting times to see a provider of care.  There is a 128 percent increase in the number of patients waiting for routine treatment compared to before the pandemic.  Likewise, a survey from Australia reported an increase in food intake restricting, binge eating, purging, and exercise behaviors among individuals with a history of eating disorders, as well as an increase in restricting and binge eating behaviors among the general population.

In light of the changing circumstances regarding public safety and mental health, several U.S. facilities now offer virtual mental health services. This could be prevalent in the future where a person lives in a state with limited treatment options, although it raises new issues that have yet to be addressed.  For example, post-pandemic an individual could have partial hospitalization at an in-state facility within the insurance network. Then the individual could seek intensive outpatient programs from an out-of-state facility because there is no similar in-network facility in the state but be denied coverage because the person does not have out-of-network benefits.  Yet since the patient is still seeking care within the borders of his/her state because the care is via telemedicine, and the needed level of care is not available within the state, the patient could argue that it should be covered.  

Insurance and Legal Issues

Although mental health parity requires mental health insurance coverage to be treated equally with physical health coverage, a separation between the two can still exist, with disparate impact. For instance, behavioral health coverage is sometimes contracted through a separate organization than physical health coverage. A patient could also lose coverage. For example, if a patient is a college student and covered for services under the school's insurance policy, but drops out of school to seek treatment for an eating disorder, the student may no longer be covered under the plan, since most school health insurance policies require a student to be enrolled in at least 12 credit hours per semester.

When patients are unable to receive higher levels of care in their home state, they may cross borders to seek treatment. However, this may now be more difficult due to several recent cases upholding insurers’ denial of coverage for eating disorders. In Stone v. UnitedHealthcare Ins. Co. the plaintiff’s minor daughter sought treatment for an eating disorder through a program in San Diego. The insurance company approved the coverage. A month later, the minor was discharged with instructions to seek a higher level of care in an evidence-based residential facility. Since there are no such facilities in California, the program referred her to a center in Colorado. The plaintiff sought coverage for the out-of-state program, but her insurance company denied coverage. The 9th Circuit held that the denial wasn’t a violation of federal or state parity law because the coverage denial “was based solely on the [insurance’s] exclusion of coverage for out-of-state treatment, which applies equally to mental and physical illnesses.” Although the plaintiff contended that the limitation that the minor receive treatment at a California facility was a more restrictive limitation than for other medical treatment, the court found that the plaintiff never contended that the “geographic limitation applied unequally to physical and mental health issues.” The 9th Circuit also denied that the out-of-state treatment was medically necessary.

In Ck v. Behavioral Health Systems, the plaintiff’s minor daughter was advised by her doctor to seek inpatient care for her eating disorder. When the parent contacted his insurance company to determine coverage, the insurance company informed the parent that his plan lacked residential-care benefits for eating disorders. The minor completed treatment at an Arizona facility and the parent sought reimbursement for the treatment. The insurance company again denied coverage and the parent sued.  The court found that the insurer did not violate federal parity law. The law “does not mandate that plans provide mental health benefits, but it ‘requires group health plans and health insurance issuers to ensure that the financial requirements and treatment limitations applied to mental health benefits be no more restrictive than the predominant financial requirements and treatment limitations applied to substantially all medical and surgical benefits covered by the plan or insurance.’”  Skilled nursing services are analogous to residential mental health treatment; because the insurance plan denies both skilled nursing services and residential mental health treatment, the court stated that “the [insurance p]lan treats them with parity by excluding both.”  At least one court has also ruled that where an insurer covers residential mental health treatment, but only when treatment is from an in-network provider, treatment from an out-of-network provider may be denied coverage.


Due to the slow rate of litigation, it will take several years to see whether the courts reevaluate how insurance companies must address patients’ medical and financial needs regarding treatment for eating disorders. There still exists considerable confusion and lack of clarity. For instance, it can be argued that if there is no adequate treatment available within the state and the person has the benefit as part of his/her insurance coverage, the insurance company must either find a suitable provider or authorize the patient to seek treatment elsewhere. Otherwise, the patient is paying for a benefit that does not exist.

The lack of available treatment for eating disorders must be rectified in light of the worsening circumstances around such dangerous conditions. In other words, an insurance company cannot get around the obligation of mental health parity by selling a health maintenance organization product that requires the use of network providers and then have no providers in its network to provide services for a covered benefit. The solution in that instance is for the insurance company to authorize care and treatment at a provider or facility not within the network by negotiating a “single-case” arrangement. This one-off means of permitting treatment has worked in the past and is the way to proceed until the medical and mental health networks are similarly populated with practitioners to render medically necessary care.

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    Chris Kutner

    Rivkin Radler’s Health Services Practice Group

    Chris Kutner co-leads Rivkin Radler’s Health Services Practice Group specializing in mergers and acquisitions, managed care contracting and disputes, and professional disciplinary matters. He received his law degree from St. John’s University School of Law and his MBA from the Frank Zarb School of Business at Hofstra University.  He may be reached at [email protected].

    Joseph P. DiBella

    Health Services Practice Group, Rivkin Radler LLP

    Joseph P. DiBella is an associate in the Health Services Practice Group at Rivkin Radler LLP. He assists a variety of clients with transactional and regulatory work, including business formation, joint ventures, employment matters, mergers and acquisitions, and compliance with the Stark Law, the Anti-Kickback Statute, False Claims Act, HIPAA, and other healthcare laws and regulations.  He received his law degree from the George Washington University Law School. He may be reached at [email protected].