Social Security Disability
Benefits for Mental Illness
Social Security disability benefits are fairly easy to obtain for patients
suffering from chronic and severe mental illnesses such as schizophrenia
or bipolar disorder, while patients with many other, generally less severe,
conditions (such as personality disorders, anxiety disorders, post-traumatic
stress disorder) have recently found it more difficult to convince administrative
judges and the Social Security Administration that they should not be expected
to work. One common argument by persons alleging disability (and by some
psychiatrists) is that their diagnosis alone (e.g., of schizophrenia) establishes
disability. In fact, however, disability is generally determined by a combination
of ability to work and whether or not the disabling condition is expected
to last at least one year. Schizophrenia and many other psychiatric conditions
last much longer, but the patient's inability to maintain gainful employment
often fluctuates with such things as adequate treatment and treatment compliance.
A March, 2002, U.S. Supreme Court decision upheld the Social Security Administration's
denial of benefits to a man who became ill with schizophrenia, applied for
disability, then was able to return to work some 11 months later, before
his SSA decision was rendered. Disability decisions often take many months,
and the plaintiff had argued, in part, that delaying benefits decisions
so long would encourage people to avoid working voluntarily during that
period, without regard to any real disability. (Barnhart, Commissioner
of Social Security v. Walton 535 U.S. 1937 [2002]).
Health Maintenance Organizations
(HMOs) Lose Important Supreme Court ERISA Fight
The U.S. Supreme Court's 5:4 decision in Rush Prudential HMO v. Moran
is a major victory for patients and physicians. The finding upholds an Illinois
statute guaranteeing independent medical review of payment or coverage denials
by Health Maintenance Organizations (HMOs) when medical necessity is questioned.
The decision also appears to preserve similar laws -- creating patients'
rights in HMO disputes involving treatment need -- in some 40 other states.
In the case, the HMO refused to approve shoulder surgery recommended for
Ms. Moran by her physician. She sought an independent review of the denial
from the HMO, by a non-HMO physician, as allowed by a 1986 Illinois statute
which provides patients with the right to such a review when there is a
dispute between the HMO and primary care doctor concerning "medical necessity"
of care. The HMO refused the review, and she sued. She eventually obtained
the independent review, which agreed that the surgery was warranted, and
had the surgery. The HMO still refused to cover the treatment, however,
for which she paid almost $100,000.
The HMO sought the protection of the federal Employee Retirement Income
Security Act of 1974 (ERISA), which has long been a vehicle for exempting
employee benefits plans (including HMOs) from state law. Ms. Moran's claim
was denied at the federal trial level, with a finding that the federal ERISA
superceded Illinois state law. A federal appeals court, and later the U.S.
Supreme Court, disagreed, however, citing conflicting federal appellate
decisions (e.g., in the Fifth Circuit) and allowing Moran's claim.
The barriers created by ERISA to individual and state challenges to managed
care continue to erode. One of ERISA's original goals, to lower health care
costs by encouraging development of managed care organizations and programs
such as HMOs, has often been usurped by companies for private gain, to the
detriment of patient care. The federal courts are slowly reinstating the
ability of individual states to regulate managed care in the patient's interest,
and allowing state court challenges to ERISA-protected entities. (Rush
Prudential HMO, Inc. v. Moran et al. 536 U.S. 1021 [2002])
U.S. Mental Disorder Prevalence
Rates
One-year U.S. prevalence rates for psychiatric disorders -- the percent
of the population who suffer from a mental illness or disorder during a
given year (not to be confused with "incidence," which is the
rate at which new cases appear) -- have recently been revised downward,
according to a February, 2002, report in the Archives of General Psychiatry.
A group of experienced epidemiologists presented convincing evidence that
studies previously relied upon to estimate numbers of potential patients
and predict health care resource needs probably overestimated rates of significant
psychiatric illness by 20 to 50%.
The new estimates suggest that the total one-year adult prevalence of clinically
significant mental or substance abuse disorders in the U.S. is just under
19%, not 28-30% as previously thought. Major depressive disorder (the most
common class of severe depression) and alcohol use disorder are both estimated
at about 5% of the population, just half what one respected earlier survey
(the National Comorbidity Survey) had suggested. Bipolar disorder (formerly
"manic-depressive" disorder) and significant anxiety disorders
are also less common than previously believed, affecting about 0.5% and
12%, respectively, of U.S. citizens annually.
For the complete report, see Narrow WE, Rae DS, Robins LN, Regier DA (2002).
Revised prevalence estimates of mental disorders in the United States: Using
a clinical significance criterion to reconcile 2 surveys' estimates. Archives
of General Psychiatry 59(2):115-23.
Disability Insurance Parity
for Bipolar Disorder
Federal disability benefits do not differentiate between physical and mental
disorders; however, private insurers often limit duration of benefits for
"mental illness." A short series of cases involving First Unum Life Insurance
Company of America ("Unum") may be a portent for change in disability policies.
In Fitts v Federal National Mortgage Association et al. (DC District
Court, No. 98-00617, February 26, 2002), the Court ruled, essentially, that
bipolar disorder (formerly called manic-depressive disorder) is a physical
illness for the purposes of this disability policy, and reinstated previously
terminated benefits. Fitts, a lawyer for the mortgage association received
disability payments for two years because of bipolar disorder. At that point,
the carrier, Unum, terminated her benefits, citing contract language that
limited mental illness disability benefits to 24 months and defined mental
illness as "mental, nervous, or emotional diseases or disorders of any type."
Fitts filed suit under ADA and ERISA. The Court dismissed her ADA claims
but heard the ERISA claim, and initially upheld Unum's classification of
bipolar disorder as a mental illness. Ms. Fitts appealed to the DC Circuit,
which found that the lower court had used a standard that favored the employer
and remanded the case for a neutral review. In the second review, U.S. District
Judge Henry Kennedy found for Ms. Fitts.
Fitts's arguments included contentions that the plan's definition of mental
illness was ambiguous, and that bipolar disorder was unfairly excluded.
She cited its physical characteristics, and presented her own brain scans
as evidence. Both her treating psychiatrist and an expert witness, former
NIMH director Fred Goodwin, M.D., supported the premise that bipolar disorder
is a physical condition. A Unum psychiatrist testified that such a precedent
could open the door for all psychiatric diagnoses to be considered "physical,"
because they involve the brain.
In another Unum case (Elam v. First Unum Life Insurance Co., 57 S.W.3d
165 [Ark. 2001]), an Arkansas employee-plaintiff with bipolar disorder presented
affidavits from prominent psychiatrists and researchers who described physical
causes and concomitants of bipolar disorder. One of the experts wrote, "It
is well accepted in the scientific community that bipolar disorder is a
biological condition with hereditary predisposition, and . . . alteration
in brain chemistry is . . . responsible for (its symptoms)." First
Unum won its motion for summary judgement at the trial level, but both the
state appeals court and the Arkansas Supreme Court reversed, setting the
stage for trial on the merits.
Psychiatrists who (quite properly) view our specialty as an inseparable
branch of general medicine, and our severely ill patients as having disorders
or diseases of the brain, hope that the crux of such cases is whether or
not bipolar illness is deemed "biological." This isn't the only point, however.
The Court in Elam noted that both parties' cases "went beyond the four corners
of the policy," with Elam claiming that the exception wording did not include
illnesses associated with physical causes. Unum claimed that its definition
did not rely on "cause," and that the common classification of bipolar disorder
as a "mental illness" by psychiatrists is sufficient to meet the exception.
If plaintiffs such as these prevail on the basis of a biological basis
for severe mental disorders, these will be important cases in mental disability
law. If the plaintiffs prevail solely on the wording of the contract, however,
their importance will last only long enough for insurers to change next
year's policies. If the insurer prevails, things will remain as they are
for awhile.
Obtaining Accurate Child
Assessments
A recent query about obtaining forensic psychiatric or psychological assessments
in child protective settings prompted the following answer, which makes
a good Update vignette.
First, it is important to try to use a fully-trained and certified child
specialist for children's assessments. Although general psychiatrists and
psychologists have some training (and sometimes considerable experience)
with children, people under about 15 are quite different from adults, and
the younger they are, the more different they are. If the issue is simply
one of evaluating an adult for competence to parent or dangerousness during
visitation (rather than a child assessment or family custody evaluation),
a forensically-experienced adult professional may be sufficient.
Second, assuming that both professionals have all the necessary training
and are experienced in forensic work and child-protection/custody matters,
does one choose a psychiatrist or a psychologist? A child psychiatrist is
more broadly trained and -- other things being equal -- better able to assess
for severe disorders and general medical issues that may have an impact
on the case (e.g., effects of substance abuse on the brain, prognosis for
a parent's HIV, effects of a child's diabetes on development). A child psychologist,
on the other hand, is likely to be more familiar with testing instruments
which may be valuable in assessment or monitoring progress, and may have
more psychotherapy expereince. In matters of brain injury or damage, a child
neurologist may be helpful, and a fully-trained child neuropsychologist
(pretty rare in most settings) is a very valuable asset.
Third, in a child protection field, attorneys should be very cautious about
whom they seek to evaluate the veracity of adults' claims and the accuracy
of children's statements or memories. There are lots professionals who have
made a cottage industry of "discovering" (especially sexual) abuse. In my
view, most professionals who purport to know when a child is accurately
describing past abuse, especially through drawings or symbolic acts, are
not nearly as good as they claim. Look for someone who is honest about his
or her limitations, and who provides reasonable disclaimers in reports and
testimony.
Fourth, it is important to emphasize the "forensic" in forensic psychiatrist
or psychologist. The assessment person or team should have experience and
credibility with the legal and social service system (rather than simply
being local clinicians). It is very important that evaluators not be involved
in treating any of the parties (see above vignettes). The assessment should
be completely independent of any treatment or other family relationship
(although the evaluator should have access to treatment records for all
parties).
For a basic discussion of the difference between psychologists and psychologists,
go to our FAQ -- Basic Information page.
Judges' Discretion in Qualifying
Experts
Judges have broad discretion in qualifying expert witnesses -- witnesses
allowed to express expert opinions. Accuracy and credibility are usually
assumed to be best addressed by the other side's opportunity for rebuttal
and the jury's (or other factfinder's) judgement. Sometimes testimony is
clearly outside the witness's expertise, however, and admitting it is reversible
error. Daubert and other cases address the kinds of information and information
sources that may be admitted, but there are also a few successful appellate
challenges to judicial determinations of who may opine.
The Massachusetts Supreme Judicial Court found in Commonwealth v. Frangipane
(744 N.E. 2d 25, Mass. 2001) that a social worker should not have been allowed
to testify about memory loss and recovery. The witness was called to discuss
traumatic memory in a context of sexual abuse; she did not evaluate the
alleged victim nor review case records. She discussed what she described
as "dissociative memory loss," with a foundation of her clinical experience
and attending workshops and seminars on traumatic memory. The Massachusetts
Supreme Court did not argue with the trial court's admitting her testimony
on child abuse or tra