Mental Health and Substance Use Disorder Issues Faced by Senior Lawyers

Mental Health and Substance Use Disorder Statistics

Each year, the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA) sponsors a National Survey on Drug Use and Health (Survey). In its most recent Survey, SAMHSA released estimates regarding the number of people aged 50 or older who had mental health conditions and/or substance use disorders in the past year. According to SAMHSA, an estimated 17.7 million people aged 50 or older had any mental illness (AMI) in the past year, three million people aged 50 or older had a serious mental illness (SMI) in the past year, 8.9 million people aged 50 or over had a substance use disorder (SUD) but not AMI in the past year, and 4.4 million people aged 50 or over had both a SUD and AMI in the past 5year.

The SAMHSA statistics involve individuals aged 50 or older, regardless of occupation. In collaboration with the Hazelden Betty Ford Foundation, the American Bar Association (ABA) Commission on Lawyer Assistance Programs conducted a national study examining mental health and substance use issues among licensed, employed attorneys. The study authors found problematic alcohol use among 16.2% of respondents aged 51 to 60, 14.4% of respondents aged 61 to 70, and 12.1% of respondents aged 71 or older. The study authors also found depression, anxiety, and stress to be significant problems for licensed, employed attorneys. Although younger lawyers were found to be more at risk for mental health conditions and substance use disorders, older lawyers were found to be vulnerable as well.

The Importance of Confidentiality

The SAMHSA and ABA statistics underscore the importance of prevention, diagnosis, and treatment for senior lawyers, as well as public awareness regarding the persistent stigma associated with mental health and substance use disorders. According to public health experts, assurances of confidentiality may be key to encouraging affected individuals to seek diagnosis and treatment. A senior lawyer who presents to a health care provider, including a psychiatrist, psychologist, social worker, marriage and family therapist, or licensed independent counselor, will be protected by the federal HIPAA Privacy Rule if the health care provider accepts any form of health insurance on behalf of any patient (not necessarily the senior lawyer) and bills that insurance electronically. In addition, a senior lawyer who participates in psychotherapy, also known as talk therapy, with a HIPAA-covered mental health professional is eligible to receive heightened confidentiality protections if the notes taken by the mental health professional during the lawyer’s counseling session are maintained separate and apart from the rest of the lawyer’s medical record. Senior lawyers who obtain psychotherapy should ask their psychotherapists to maintain separate counseling session notes to qualify for the most stringent confidentiality protections available under the HIPAA Privacy Rule.

A senior lawyer who seeks diagnosis, treatment, or referral for treatment from certain federally assisted SUD treatment programs is also eligible for heightened confidentiality protections under a separate federal regulation codified at 42 C.F.R. Part 2 (Part 2). Programs subject to Part 2 include: (1) mental health professionals who hold themselves out as providing, and who actually provide, SUD diagnosis, treatment, or referral for treatment; (2) identified units, such as behavioral health units or detoxification units, located within general medical facilities if the units are held out as providing, and actually provide, SUD diagnosis, treatment, or referral for treatment; and (3) medical personnel or other staff, including physicians who specialize in addiction medicine, who work in a general medical facility and whose primary functions are the provision of SUD diagnosis, treatment, or referral for treatment and who are identified to the public as such. Importantly, a SUD treatment program must receive federal assistance in order to be regulated by Part 2. A SUD treatment program is considered to be federally assisted if, among other things, the program is: (1) conducted in whole or in part by any department or agency of the United States; (2) carried out under a license, certification, registration, or other authorization granted by any department or agency of the United States, such as a Medicare participating provider certification or an authorization to conduct opioid maintenance treatment or withdrawal management; (3) registered to dispense a controlled substance under the Controlled Substance Act; or (4) exempt from federal income tax by the Internal Revenue Service. Health care providers that take health insurance and bill insurance electronically and that qualify as federally assisted SUD treatment programs can be regulated both by the HIPAA Privacy Rule as well as Part 2. In the past, the HIPAA Privacy Rule and Part 2 had different information use and disclosure rules, different patient rights, different administrative requirements, and different penalties. On December 2, 2022, however, HHS published a proposed rule implementing Section 3221 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. When finalized, this rule will align certain Part 2 requirements more closely with the HIPAA Privacy Rule. As of this writing, HHS has yet to issue a final alignment rule pursuant to the CARES Act.

Although the HIPAA Privacy Rule and Part 2 do not regulate health care providers who do not bill insurance electronically and who do not qualify as federally assisted SUD treatment programs, respectively, some states have confidentiality laws that fill these gaps. The Texas Medical Records Privacy Act, for example, regulates any health care provider who comes into possession of health information, including mental health and SUD treatment information, regardless of whether the provider accepts insurance or receives federal 19assistance. In addition, several states including Oklahoma have special mental health confidentiality laws that are designed to protect not only treatment records, but also oral communications between providers and patients receiving mental health care.

Mandated Benefit Laws and Mental Health Parity Laws

Senior lawyers who seek mental health and SUD treatment services may wonder whether health insurance will cover these services; that is, whether these services are subject to a mandated benefit law. Even when mental health and SUD services are covered by insurance, senior lawyers also may wonder whether these services will be subject to higher deductibles, copayments, or coinsurance amounts; lower numbers of covered inpatient days or outpatient visits; or more stringent medical necessity requirements, including harsher prior authorization or pre-certification requirements. That is, the lawyer may wonder whether their mental health and SUD benefits are roughly comparable (or at parity) with their physical health benefits.

The answer to these questions depends on: (1) an extraordinarily complex patchwork of federal and state mandated benefit law and mental health parity law; and (2) whether the senior attorney has health insurance through a large group health plan, a small group health plan, an individual plan, a retiree-only plan, a self-insured plan, a grandfathered plan, some other type of health plan, or a public program such as Medicare. For example, a senior attorney who has health insurance through a non-grandfathered individual plan or a small group plan will benefit from the protections set forth within the federal Affordable Care Act (ACA’s) essential health benefits (EHB) provision.[21] The EHB provision requires non-grandfathered individual and small group health plans to provide mental health and SUD benefits. A second provision within the ACA, the mental health parity provision, extended the application of preexisting federal mental health parity laws (including the Mental Health Parity Act of 1996 and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 [hereinafter Federal Parity Law]) to EHB-offering individual and small group health plans, thus protecting senior attorneys with mental health and SUD from higher deductibles, copayments, and coinsurance amounts; lower numbers of covered inpatient days and outpatient visits; and more stringent medical necessity requirements.

If a senior attorney has insurance through a large group health plan, a self-insured plan, or a retiree-only plan, the answer will be different. Although Federal Parity Law requires large group health plans that voluntarily offer mental health and SUD benefits to offer such benefits at parity with offered physical health benefits, the ACA’s EHB (i.e., mandated benefit) provision does not apply to large group health plans. The result is that large group health plans do not have to offer mental health and SUD benefits (although some voluntarily do). If a large group health plan does not voluntarily offer these benefits, Federal Parity Law does not apply. Similar limitations also apply to self-insured health plans as well as retiree-only plans. For example, self-insured health plans are exempt from the EHB provision and, of importance to senior lawyers, retiree-only plans are excepted from Federal Parity Law.

For senior attorneys who are Medicare beneficiaries, the analysis is different still. Although Federal Parity Law does not technically apply to Medicare, separate laws have attempted to chip away at the mental health and SUD disparities that remain embedded in Medicare. For example, the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) amended former Section 1833(c) of the Social Security Act, which had imposed a 50% coinsurance amount on Medicare beneficiaries who obtained outpatient mental health and SUD services compared to the traditional 20% coinsurance amount applicable to beneficiaries who obtained outpatient physical health services. By 2014, MIPPA had completely phased out the discriminatory 50% coinsurance amount applicable to mental health and SUD services. Now, Medicare beneficiaries are subject only to a 20% coinsurance amount regardless of whether they obtain outpatient physical or outpatient mental health services. Although MIPPA corrected some imbalances on the outpatient side, Medicare still contains mental health disparities on the inpatient side. For example, a federal Medicare regulation imposes a lifetime maximum of 190 days on Medicare beneficiaries with respect to their inpatient psychiatric hospital care. Once a Medicare beneficiary receives benefits for 190 days of care in a psychiatric hospital, no further inpatient psychiatric hospital benefits are available. This is so even though there is no comparable Medicare limitation applicable to non-psychiatric hospital inpatient services.

Conclusion

Senior attorneys are vulnerable to mental health and substance use disorders. Unfortunately, persistent stigma and confidentiality concerns may impact the willingness of senior lawyers to seek diagnosis and treatment. Assurances of confidentiality, including health care providers’ compliance with federal and state health information confidentiality law, may help to reduce these barriers to care. Senior lawyers who obtain care from health care providers who accept at least one form of insurance and bill that insurance electronically will be protected by the baseline protections available in the HIPAA Privacy Rule. Additional, heightened confidentiality protections are available under the HIPAA Privacy Rule for senior lawyers who participate in psychotherapy if the lawyers’ psychotherapy notes are maintained separate and apart from the rest of the lawyer’s medical record. Senior lawyers should ask their psychotherapists to maintain their psychotherapy notes separate and apart from the rest of their medical record. Senior lawyers who obtain care from a federally assisted SUD treatment program will also be protected by 42 C.F.R. Part 2, which contains very stringent confidentiality protections. Finally, some states have laws that are more stringent than the HIPAA Privacy Rule and 42 C.F.R. Part 2, therefore surviving federal preemption.

Depending on the type of health insurance that covers the senior lawyer, the lawyer also may benefit from mandated benefit law as well as mental health parity law. Senior lawyers who are denied coverage of their mental health and SUD treatment services or who have higher financial requirements or more stringent treatment limitations for their mental health and SUD services compared to comparable physical health services should consult federal and state law to see whether the denial or higher charge is illegal. Senior lawyers who are unfamiliar with mandated benefit law and mental health parity law should consult an experienced health insurance or employee benefits lawyer due to the complex patchwork of federal and state law governing these issues.