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The Impact of Neuroscience on Health Law

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Abstract

Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

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Notes

  1. See, e.g., Owen D. Jones et al., Law, Responsibility, and the Brain, 5 PLOS Biology 693 (2007); O. Carter Snead, Neuroimaging and the “Complexity” of Capital Punishment, 82 N.Y.U. L. Rev. 1265 (2007); O. Carter Snead, Neuroimaging, Entrapment, and the Predisposition to Crime, 7(9) Am. J. Bioethics-Neuroscience 60 (2007); Jay D. Aronson, Brain Imaging, Culpability and the Juvenile Death Penalty, 13 Psych. Pub. Pol’y & L. 115 (2007); Melissa S. Caulum, Postadolescent Brain Development: A Disconnect between Neuroscience, Emerging Adults, and the Corrections System, 2007 Wis. L. ev. 729 (2007); Abram S. Barth, A Double-Edged Sword: The Role of Neuroimaging in Federal Capital Sentencing, 33 Am. J. L. & Med. 501 (2007); Debra Niehoff, Invisible Scars: The Neurobiological Consequences of Child Abuse, 56 DePaul L. ev. 847 (2007); Owen D. Jones, Law, Evolution, and the Brain: Applications and Open Questions, in Law & the Brain 57 (Semir Zeki & Oliver Goodenough eds., 2006); Joshua Greene and Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, in Law & the Brain (Semir Zeki & Oliver Goodenough eds., 2006); Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105(2) Columbia L. ev. 405 (2005); Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3(2) Ohio St. J. Crim. L. 397 (2006); Stephen J. Morse, Moral and Legal Responsibility and the New Neuroscience, in Neuroethics: Defining the Issues in Theory, Practice, and Policy 33 (Judy Illes ed. 2006); Oliver R. Goodenough, Responsibility and Punishment: Whose Mind? A Response, in Law & the Brain 259 (Semir Zeki & Oliver Goodenough eds., 2006); Eileen P. Ryan & Sarah B. Berson, Mental Illness and the Death Penalty, 25 St. Louis Univ. Pub. L. ev. 351 (2006); Robert M. Sapolsky, The Frontal Cortex and the Criminal Justice System, in Law & the Brain 227 (Semir Zeki & Oliver Goodenough eds., 2006); Richard E. Redding, The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century, 56 Am. U. L. ev. 51 (2006); James H. Fallon, Neuroanatomical Background to Understanding the Brain of the Young Psychopath, 3 Ohio St. J. Crim. L. 341 (2006); Staci A. Gruber & Deborah A. Yurgelun-Todd, Neurobiology and the Law: A Role in Juvenile Justice? 3 Ohio St. J. Crim. L. 321 (2006); Katherine H. Federle, Introduction to the Mind of a Child: The Relationship between Brain Development, Cognitive Functioning, and Accountability under the Law 3(2) Ohio St. J. Crim. L. 317 (2006); Jessie A. Seiden, The Criminal Brain: Frontal Lobe Dysfunction in Capital Proceedings, 16 Capital Defense J. 395 (2004); Lucy C. Ferguson, The Implications of Developmental Cognitive Research on “Evolving Standards of Decency” and the Imposition of the Death Penalty on Juveniles, 54 Am. U. L. ev. 441 (2004); Laura Reider, Toward a New Test for the Insanity Defense: Incorporating the Discoveries of Neuroscience into Moral and Legal Theories, 46 UCLA L. ev. 289 (1998).

  2. See, e.g., Sean Kevin Thompson, A Brave New World of Interrogation Jurisprudence?, 33 Am. J. L. & Med. 341 (2007); Sarah E. Stoller & Paul Root Wolpe, Emerging Neurotechnologies for Lie Detection and the Fifth Amendment, 33 Am. J. L. & Med. 359 (2007); Michael S. Pardo, Neuroscience Evidence, Legal Culture, and Criminal Procedure, 33 Am. J. Crim. L. 301 (2006); Erich Taylor, A New Wave of Police Interrogation? “Brain Fingerprinting,” The Constitutional Privilege Against Self-Incrimination, and Hearsay Jurisprudence, 2006 U. Ill. J. L. Tech. & Pol’y 287 (2006); Sean Kevin Thompson, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90(6) Cornell L. ev. 1601 (2005); Richard G. Boire, Searching the Brain: The Fourth Amendment Implications of Brain-Based Deception Devices, 5(2) Am. J. Bioethics 62 (2005).

  3. See, e.g., Mark Pettit, FMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, 33 Am. J. L. & Med. 319 (2007); Leo Kittay, Admissibility of fMRI Lie Detection: The Cultural Bias against “Mind Reading” Devices, 72 Brooklyn L. ev. 1351 (2007); Erin A. Egan, Neuroimaging as Evidence, 7(9) Am. J. Bioethics-Neuroscience 62 (2007); Jocelyn Downie & Ronalda Murphy, Inadmissible, Eh? 7(9) Am. J. Bioethics-Neuroscience 67 (2007); Charles N.W. Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509 (2006); Archie Alexander, Functional Magnetic Resonance Imaging Lie Detection: Is a “Brainstorm” Heading for the Gatekeeper? 7 Houston J. Health L. & Pol’y 1 (2006).

  4. See, e.g., Betsy J. Grey, Neuroscience, Emotional Harm, and Emotional Distress Tort Claims, 7(9) Am. J. Bioethics-Neuroscience 65 (2007); Adrian M. Viens, The Use of Functional Neuroimaging Technology in the Assessment of Loss and Damages in Tort Law, 7(9) Am. J. Bioethics-Neuroscience 63 (2007); Adam Kolber, Pain Detection and the Privacy of Subjective Experience, 33 Am. J. L. & Med. 433 (2007).

  5. See, e.g., Jeffrey Evans Stake, The Property ‘Instinct,’ in Law & the Brain 185 (Semir Zeki & Oliver Goodenough eds., 2006).

  6. See, e.g., Henry T. Greely, Prediction, Litigation, Privacy, and Property: Some Possible Legal and Social Implications of Advances in Neuroscience, in Neuroscience and the Law: Brain, Mind, and the Scales of Justice 114 (Brent Garland ed., 2004).

  7. See, e.g., Stacey A. Tovino, Functional Neuroimaging Information: A Case for Neuro Exceptionalism? 34 Fla. St. U. L. ev. 415 (2007); Henry T. Greely, The Social Effects of Advances in Neuroscience: Legal Problems, Legal Perspectives, in Neuroethics: Defining the Issues in Theory, Practice, and Policy 245 (Judy Illes ed., 2006); Stacey A. Tovino, The Visible Brain: Confidentiality and Privacy Implications of Functional Magnetic Resonance Imaging, Ph.D. Dissertation, University of Texas Medical Branch (2006); Stacey A. Tovino, The Confidentiality and Privacy Implications of Functional Magnetic Resonance Imaging, 33(4) J. L. Med. & Ethics 844 (2005); Committee on Science and Law, Are Your Thoughts Your Own? “Neuroprivacy” and the Legal Implications of Brain Imaging, 60 CBA ecord 407 (2005); Greely, supra note 6, at 114.

  8. See, e.g., Jennifer Kulynych, Some Thoughts about the Evaluation of Non-Clinical Functional Magnetic Resonance Imaging, 7(9) Am. J. Bioethics-Neuroscience 57 (2007); Jennifer Kulynych, The Regulation of MR Neuroimaging Research: Disentangling the Gordian Knot, 33 Am. J. L. & Med. 295 (2007); Jennifer Kulynych, Legal and Ethical Issues in Neuroimaging Research: Human Subjects Protection, Medical Privacy, and the Public Communication of Research Results, 50(3) Brain & Cognition 345 (2002).

  9. See, e.g., Henry T. Greely & Judy Illes, Neuroscience-Based Lie Detection: The Urgent Need for Regulation, 33 Am. J. L. and Med. 377 (2007); Henry T. Greely, Premarket Approval Regulation for Lie Detection: An Idea Whose Time May Be Coming, 5(2) Am. J. Bioethics 50 (2005).

  10. James E. Sabin & Norman Daniels, Determining “Medical Necessity” in Mental Health Practice, 24(6) Hastings Center ep. 5, 5 (1994).

  11. See David B. Wexler, Putting Mental Health into Mental Health Law: Therapeutic Jurisprudence, in Essays in Therapeutic Jurisprudence 7, 10 (David B. Wexler & Bruce J. Winick eds., 1991) (encouraging stakeholders to consider ways in which the clinical literature might bear on the formulation of legal arrangements).

  12. Health law has been described as both an exciting and interdisciplinary field as well as an incoherent discipline. See, e.g., Henry T. Greely, Some Thoughts on Academic Health Law, 41(2) Wake Forest L. ev. 391 (2006); Einer R. Elhauge, Can Health Law Become a Coherent Field of Law? 41(2) Wake Forest L. ev. 365 (2006); Mark A. Hall, The History and Future of Health Care Law: An Essentialist View, 41(2) Wake Forest L. ev. 347 (2006); Mark A. Hall et al., Rethinking Health Law, 41(2) Wake Forest L. ev. 341 (2006).

  13. National Institute of Mental Health, Statistics, available at http://www.nimh.nih.gov/health/statistics/index.shtml (last visited Jan. 29, 2008).

  14. Id.

  15. Id.

  16. Id.

  17. See, e.g., Keith Nelson, Legislative and Judicial Solutions for Mental Health Parity: S. 543, Reasonable Accommodation, and an Individualized Remedy under Title I of the ADA, 51 Am. U. L. ev. 91, 98 (2001); Brian K. LaFratta, The Mental Health Parity Act: A Bar to Insurance Benefits for the Elderly? 8 Elder L.J. 393, 406 (2000).

  18. See, e.g., Jeffery Fraser, Allegheny County Mental Health Court Project, Executive Summary 2 (Sept. 4, 2004), available at http://199.224.17.100/uploadedFiles/DHS/Individual_and_Community_Health/Mental_Health_Services_and_Support/Forensic_Services/MHCourtExecutiveSummary.pdf (last visited Jan. 21, 2008).

  19. Id.

  20. See, e.g, Pamela Signorello, The Failure of the ADA-Achieving Parity with Respect to Mental and Physical Health Care Coverage in the Private Employment Realm, 10 Cornell J. L. & Pub. Pol’y 349, 368 (2001) (“Some diseases are more politically ‘in’ than others. We all know the more political backing there is, the more attention, the more funds, and the more patient-protection legislation. My guess is that if AIDS rates a 10, then breast cancer is a 7, prostate cancer is a 6 … Yes, you guessed it. I am unable to assign a number to the mental health category. If I have to judge by the coverage in the popular press, the category is close the bottom of the food chain.”); id. at 371 (“Contrary to lingering public perception, mental illnesses are not indicative of personal weakness, lack of character, or poor upbringing. One thing is certain. The stigma associated with mental illness has supported the disparity in health care coverage.”); Nicole Martinson, Inequality between Disabilities: The Different Treatment of Mental Versus Physical Disabilities in Long-Term Disability Benefit Plans, 50 Baylor L. ev. 361, 361 (1998) (“The stigma of mental illness has kept many in need from seeking help, and it has prevented policymakers from providing it.”); Brian D. Shannon, Paving the Path to Parity in Health Insurance Coverage for Mental Illness: New Law or Merely Good Intentions?, 68 U. Colo. L. ev. 63, 85 (1997) (citing 142 Cong. Rec. S3590 (daily ed. Apr.18, 1996) (statement of Senator Wellstone)) (“The stigma of mental illness has kept many in need from seeking help, and it has prevented policymakers from providing it. And for too long, persons in need of mental health services who reach private coverage discriminatory limits have been dumped into Government-funded programs.”).

  21. See, e.g., Karen Faith Berman, Functional Neuroimaging in Schizophrenia, in Neurospychopharmacology: The Fifth Generation of Progress 745, 748 (Kenneth L. Davis et al. eds., 2002); Russell T. Loeber et al., Differences in Cerebellar Blood Volume in Schizophrenia and Bipolar disorder, 37 Schizophrenia esearch 81, 81 (1999); Robert B. Zipursky et al., Widespread Cerebral Gray Matter Volume Deficits in Schizophrenia, 49(3) Archives General Psychiatry 195 (1992); Raquel E. Gur et al., Deconstructing Psychosis with Human Brain Imaging, 33(4) Schizophrenia Bulletin 921, 922 (2007); Birgit Abler et al., Abnormal Reward System Activation in Mania, Neuropsychopharmacology 1, 9–10 (2007); Jakub Z. Zonarski et al., Volumetric Neuroimaging Investigations in Mood Disorders: Bipolar Disorder Versus Major Depressive Disorder, 10 Bipolar Disorders 1 (2008); Jane Avery Serene et al., Neuroimaging Studies of Children with Serious Emotional Disturbances: A Selective Review, 52(3) Canadian J. Psychiatry (2007); Yoshihide Akine et al., Altered Brain Activation by a False Recognition Task in Young Abstinent Patients with Alcohol Dependence, 31(9) Alcoholism: Clinical & Experimental esearch 1589 (2007); Joanna S. Fowler et al., Imaging the Addicted Brain, Imaging the Addicted Human Brain, Science & Practical Perspectives 4 (2007); Andreas J. Bartsch et al., Manifestations of Early Brain Recovery Associated with Abstinence from Alcoholism, 130 Brain 36 (2007); Rita Z. Goldstein et al., Role of the Anterior Cingulate and Medial Orbitofrontal Cortex in Processing Drug Cues in Cocaine Addiction, 144(4) Neuroscience 1153 (2007); Sandra Chanraud et al., Brain Morphometry and Cognitive Performance in Detoxified Alcohol-Dependents with Preserved Psychosocial Functioning, 32 Neuropsychopharmacology 429 (2007); Dardo Tomasi et al., Thalamo-Cortical Dysfunction in Cocaine Abusers: Implications in Attention and Perception, 155 Psychiatry esearch: Neuroimaging 189 (2007); G. Dom et al., Substance Use Disorders and the Orbitofrontal Cortex, 187 British J. Psychiatry 209 (2005); Peter S. Kufahl et al., Neural Responses to Acute Cocaine Administration in the Human Brain Detected by fMRI, 28 NeuroImage 904 (2005); Nikos Makris et al., Decreased Absolute Amygdala Volume in Cocaine Addicts, 44 Neuron 729 (2004); D.J. Meyerhoff et al., Effects of Heavy Drinking, Binge Drinking, and Family History of Alcoholism on Regional Brain Metabolites, 28(4) Alcoholism: Clinical & Experimental esearch 650 (2004); Clinton D. Kilts et al., The Neural Correlates of Cue-Induced Craving in Cocaine-Dependent Women, 161(2) Am. J. Psychiatry 233 (2004); Andreas Heinz et al., Correlation between Dopamine D Sub 2 Receptors in the Ventral Striatum and Central Processing of Alcohol Cues and Craving, 161(10) Am. J. Psychiatry 1783 (2004); Nora D. Volkow et al., The Addicted Human Brain Viewed in the Light of Imaging Studies: Brain Circuits and Treatment Strategies, 47 Neuropharmacology 3 (2004); Nora D. Volkow et al., The Addicted Human Brain: Insights from Imaging Studies, 111(10) J. Clinical Investigation 1444 (2003); A.R. Lingford-Hughes et al., Addiction, 65 British Med. Bulletin 209 (2003); Ingrid Agartz et al., MR Volumetry during Acute Alcohol Withdrawal and Abstinence: A Descriptive Study, 38(1) Alcohol & Alcoholism 71 (2003); Nora D. Volkow et al., The Addicted Human Brain: Insights from Imaging Studies, 111(10) J. Clinical Investigation 1444 (2002); Rita Z. Goldstein et al., Drug Addiction and Its Underlying Neurobiological Basis: Neuroimaging Evidence for the Involvement of the Frontal Cortex, 159(10) Am. J. Psychiatry 1642 (2002); Stephen J. Uftring et al., An fMRI Study of the Effect of Amphetamine on Brain Activity, 25(6) Neuropsychopharmacology 925 (2001); Bruce E. Wexler et al., Functional Magnetic Resonance Imaging of Cocaine Craving, 158(1) Am. J. Psychiatry 86 (2001); R.S.N. Liu et al., Association between Brain Size and Abstinence from Alcohol, 355 (9219) Lancet 1969 (2000); Daniel W. Homer, Functional Imaging of Craving, Alcohol esearch & Health (Fall 2999); Mark Mühlau et al., Gray Matter Decrease of the Anterior Cingulate Cortex in Anorexia Nervosa, 164(12) Am. J. Psychiatry 1850 (2007); E.K. Lambe et al., Cerebral Gray Matter Volume Deficits after Weight Recovery from Anorexia Nervosa, 54(6) Archiv. General Psychiatry 537 (1997); Angela Wagner et al., Altered Reward Processing in Women Recovered from Anorexia Nervosa, 164(12) Am. J. Psychiatry 1842 (Dec. 2007); Ursula F. Bailer et al., Exaggerated 5-HT1A but Normal 5-HT2A Receptor Activity in Individuals Ill with Anorexia Nervosa, 61(9) Biological Psychiatry 1090 (May 1, 2007); Ursula F. Bailer et al., Altered Brain Serotonin 5-HT1A Receptor Finding after Recovery from Anorexia Nervosa Measured by Positron Emission Tomography, 62(9) Archives General Psychiatry 1032 (2005); G.K. Frank et al., Reduced 5-HT2A Receptor Binding after Recovery from Anorexia Nervosa, 52(9) Biological Psychiatry 896 (Nov. 1, 2002); Walter H. Kaye et al., Altered Serotonin 2A Receptor Activity in Women Who Have Recovered from Bulimia Nervosa, 158(7) Am. J. Psychiatry 1152 (2001).

  22. See, e.g., Russell T. Loeber et al., Differences in Cerebellar Blood Volume in Schizophrenia and Bipolar Disorder, 37 Schizophrenia esearch 81, 81 (1999).

  23. See, e.g., Richard E. Gardner, Mind Over Matter? The Historical Search for Meaningful Parity Between Mental and Physical Health Care Coverage, 49 Emory L.J. 675, 683 (2000) (quoting Fuller Torrey, one of America’s most famous psychiatrists: “[T]he evidence is now overwhelming that the brains of persons who have schizophrenia are, as a group, different from brains of persons who do not have the disease.”); Karen Faith Berman, Functional Neuroimaging in Schizophrenia, in Neurospychopharmacology: The Fifth Generation of Progress 745, 747 (Kenneth L. Davis et al. eds., 2002); Philip McGuire et al., Functional Neuroimaging in Schizophrenia: Diagnosis and Drug Discovery, Trends in Pharmacological Sciences 1, 6 (in press, 2008) (on file with author).

  24. See, e.g., Nelson, supra note 17, at 93.

  25. See, e.g., Paul Starr, The Social Transformation of American Medicine: The ise of a Sovereign Profession and the Making of a Vast Industry 294–95 (1949) (discussing early examples of employer-based health insurance).

  26. Dana L. Kaplan, Can Legislation Alone Solve America’s Mental Health Dilemma? Current State Legislative Schemes Cannot Achieve Mental Health Parity, 8 Quinnipiac L.J. 325, 328 (2005).

  27. See, e.g., Allan Beigel & Steven S. Sharfstein, Mental Health Care Providers: Not the Only Cause or Only Cure for Rising Costs, 142(5) Am. J. Psychiatry 668 (May 1984) (“In 1955 mental health expenditures were estimated to be $1.2 billion, or 6% of all expenditures. By 1977 the total amount of expenditures for mental health care had risen to $19.6 billion, 12% of all expenditures. Even with a correction for population growth and price increases, this amounts to a fourfold increase in mental health expenditures.”); Kaplan, supra note 26, at 328 (mental health benefits are two to three times as expensive as physical illness benefits).

  28. See Robert Pear, White House Plan Would Cover Costs of Mental Illness, N.Y. Times, Mar. 16, 2003, at A1.

  29. See, e.g., Beigel & Sharfstein, supra note 27, at 668 (“Costs have risen, resulting in resistance to financing treatment of mental illness in both public and private sectors.”); Kaplan, supra note 26, at 328.

  30. See, e.g., Kaplan, supra note 26, at 328.

  31. See Shannon, supra note 20, at 68.

  32. See id.

  33. See id.

  34. See, e.g., Beth A. Brunalli, Anorexia Killed Her, but the System Failed Her: Does the American Insurance System Suffer from Anorexia, 12 Conn. Ins. L. J. 583, 591 (2005/2006).

  35. See, e.g., John V. Jacobi, Parity and Difference: The Value of Parity Legislation for the Seriously Mentally Ill, 29 Am J. L. & Med. 185, 185 (2003); Nelson, supra note 17, at 99.

  36. See, e.g., Brunalli, supra note 34, at 598.

  37. Arkansas Blue Cross and Blue Shield, Inc. v. Doe, 733 S.W.2d 429, 431 (1987).

  38. Id. at 430.

  39. Id. at 430–31.

  40. Id. at 431 (“Dr. Thomas Harris, a treating psychiatrist... stated it is in fact a physical disorder. ‘The medical research is now, in my opinion, overwhelming in that regard.’ He stated that it was an illness of the brain and body rather than of the mind and stemmed from a chemical imbalance which responds to medication. This illness, like many others he described, manifest some behavioral or emotional disturbances, but the causes of those manifestations are physical and biological in nature as distinguished from mental.”).

  41. Id. at 432.

  42. Shannon, supra note 20, at 76.

  43. Id.

  44. Equitable Life Assurance Society v. Berry, 212 Cal. App.3d 832, 834–35 (1989).

  45. Id. at 835.

  46. Id.

  47. Id. at 839–40.

  48. Id. at 840.

  49. Id. (“Every reasonable layman would view a person manifesting such derangement as suffering from a mental disease. The policies here in question exclude all mental disease from coverage… regardless of whether the disability was caused by a chemical imbalance, a blow on the head, being frightened by a black cat, inability to cope or whatever.... In the disability policy, mental disorders are expressly “not covered.” Period…. Manifestation, not cause, is the yardstick.”).

  50. Id. at 839–40.

  51. Brewer v. Lincoln National Life Insurance Company, 921 F.2d 150, 152, 154 (1990).

  52. Id. at 152.

  53. Id.

  54. Id.

  55. Id.

  56. Id. at 153–154 (“The cause of a disease is a judgment for experts, while laymen know and understand symptoms. Laymen undoubtedly are aware that some mental illnesses are organically caused while others are not; however, they do not classify illnesses based on their origins. Instead, laypersons are inclined to focus on the symptoms of an illness; illnesses whose primary symptoms are depression, mood swings and unusual behavior are commonly characterized as mental illnesses regardless of their cause… [The son’s] disease manifested itself in terms of mood swings and aberrant behavior. Regardless of the cause of his disorder, it is abundantly clear that he suffered from what laypersons would consider to be a ‘mental illness.’”).

  57. See, e.g., Lynd v. Reliance Standard Life Ins. Co., 94 F.3d 979, 983–984 (5th Cir. 1996; “Laypersons are inclined to focus on the symptoms of an illness; illnesses whose primary symptoms are depression, mood swings and unusual behavior are commonly characterized as mental illness regardless of their cause.”); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir. 1998; same; depression therefore is a mental illness); Pelletier v. Fleet Fin. Group, 2000 WL 1513711 (D.N.H. 2000; same; major depressive disorder therefore is a mental illness); Attar v. Unum Life Ins. Co., 1997 WL 446439 (N.D. Tex. 1997; same; bipolar disorder therefore is a mental illness).

  58. Fitts v. Unum Life Ins. Co., 2006 U.S. Dist. LEXIS 9235, *12 (2006) (“[The insured] alleges that the term ‘mental illness’ should be defined to exclude any ailment that has a physical or biological basis. Pursuant to that definition, she maintains that her sickness, bipolar disorder, is not a mental illness because it has physical, biological, and genetic components.”).

  59. Id. at *12–*13 (“[The witness] explains that it may be characterized by certain physical occurrences, including degenerative changes observed in the brain, and a progressive loss of hippocampal cells in the brain. In addition, he stated that depressive episodes associated with bipolar disorder are generally accompanied by large outpourings of corticosteroids (stress hormones) from the adrenal gland, which are damaging to a number of areas of the brain.... [He] ultimately concludes that bipolar disorder is a physical illness because it is a disease afflicting a physical organ of the body, just like diseases affecting the heart, the kidneys, or the liver.”).

  60. Id. at *15.

  61. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition xxx (4th ed., Text Rev., 2000; “Although this volume is titled the Diagnostic and Statistical Manual of Mental Disorders, the term mental disorder unfortunately implies a distinction between ‘mental’ disorders and ‘physical’ disorders that is a reductionistic anachronism of mind/body dualism. A compelling literature documents that there is much ‘physical’ in ‘mental’ disorders and much ‘mental’ in ‘physical’ disorders. The problem raised by the term ‘mental’ disorders has been much clearer than its solution, and, unfortunately, the term persists in the title of the DSM-IV because we have not found an appropriate substitute….”).

  62. Fitts, 2006 U.S. Dist. LEXIS 9235, at *24-*25.

  63. Fitts v. Unum Life Ins. Co., 2007 U.S. Dist. LEXIS 33397, *2 (2007).

  64. Id. at *25.

  65. Id. (“Although bipolar disorder is an organic disorder associated with physiological changes in the brain, there is no test that reveals or confirms the diagnosis of bipolar disorder, and [the plaintiff] cannot be required to produce what does not exist in order to prevail.”).

  66. See, e.g., Brunalli, supra note 34, at 622 (discussing the non-application of many state parity laws to public health insurance programs); Treatment Advocacy Center, Medicaid Discrimination against People with Severe Mental Illnesses, available at http://www.psychlaws.org/GeneralResources/fact12.htm (last visited Feb. 3, 2008) (“While the federal government seeks ‘parity’ for treatment of lesser forms of mental illness by private insurers, it continues to discriminate against those with severe mental illnesses by denying them coverage under Medicaid when they require hospitalization in a psychiatric hospital.”).

  67. Arkansas Blue Cross and Blue Shield, Inc. v. Doe, 733 S.W.2d 429 (1987).

  68. Id. at 431.

  69. See, e.g., Phillips v. Lincoln National Life Ins. Co., 978 F.2d 302, 310–11 (7th Cir. 1992) (noting that different jurisdictions use competing definitions of mental illness); Fitts, 2006 U.S. Dist. LEXIS 9235, at *21 (noting that the courts have relied on at least five different approaches for defining mental illness).

  70. Neil R. Carlson, Physiology of Behavior 335 (6th ed. 1998).

  71. J.M. De La Fuente et al., Brain Glucose Metabolism in Borderline Personality Disorder, 31 J. Psychiatric es. 531–41 (1997).

  72. Carlson, supra note 70, at 234.

  73. Id. at 437.

  74. Id.

  75. Brian Doherty, ‘You Can’t See Why on fMRI’: What Science Can and Cannot Tell Us about the Insanity Defense, eason Online, July 2007, available at http://www.reason.com/news/show/120266.html (last visited Feb. 4, 2008) (noting the frequency with which expert witnesses testify in legal proceedings and reclassify complicated moral and legal questions as seemingly clear-cut, brain-based, scientific matters.).

  76. See, e.g., Dawn Capp & Joan G. Esnayra, It’s All in Your Head—Defining Psychiatric Disabilities as Physical Disabilities, 23 T. Jefferson L. ev. 97, 106–114 (2000) (examining the neuroanatomical, neurochemical, and genetic correlates of the signs and symptoms of many mental disorders).

  77. See Fitts, 2007 U.S. Dist. LEXIS, at *25 (“Unum contends that [the plaintiff] does not have bipolar disorder because there are no brain studies showing changes in her brain. Yet Unum concedes that bipolar disorder ‘cannot be diagnosed with a brain scan.’”) (internal references omitted).

  78. See, e.g., Mark Pettit, FMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, 33 Am. J. L. & Med. 319 (2007); Leo Kittay, Admissibility of fMRI Lie Detection: The Cultural Bias against “Mind Reading” Devices, 72 Brooklyn L. ev. 1351 (2007); Erin A. Egan, Neuroimaging as Evidence, 7(9) Am. J. Bioethics-Neuroscience 62 (2007); Jocelyn Downie & Ronalda Murphy, Inadmissible, Eh? 7(9) Am. J. Bioethics-Neuroscience 67 (2007); Charles N. W. Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509 (2006); Archie Alexander, Functional Magnetic Resonance Imaging Lie Detection: Is a “Brainstorm” Heading for the Gatekeeper? 7 Houston J. Health L. & Pol’y 1 (2006).

  79. See, e.g., Grace E. Jackson, A Curious Consensus: “Brain Scans Prove Disease?,” L. Project Psychiatric ts., available at http://psychrights.org/Articles/GEJacksonMDBrainScanCuriousConsensus.pdf (last visited Feb. 5, 2008; discussing limitations on the use of functional neuroimaging for psychiatric diagnosis).

  80. See, e.g., Robert B. Zipursky, Imaging Mental Disorders in the 21 st Century, 52 Canadian J. Psychiatry 133, 133 (2007).

  81. See, e.g., Mental Health Parity Act of 1996, codified at 29 U.S.C. § 1185a(C)(2) (allowing insurers to opt out of parity if parity raises overall plan costs by more than one percent); Mental Health Parity Act of 2007, S. 558, 110th Cong., § 712a(e)(1) and (2) (Sept. 19, 2007) (exempting from parity group health plans “whose compliance would increase total costs by more than 2% during the first year or by more than 1% each subsequent year”).

  82. See, e.g., William M. Glazer, Psychiatry and Medical Necessity, 22(7) Psychiatric Annals 362 (1992) (discussing insurers’ application of the medical necessity requirement in the context of reimbursement for treatment of psychiatric conditions; identifying key factors that underlie the concept of medical necessity in psychiatric practice); Nancy W. Miller, What Is Medical Necessity?, Physician’s News Digest (Aug. 2002) (“[There are] as many definitions of medical necessity as there are payors, laws, and courts to interpret them. Generally speaking, though, most definitions incorporate the principle of providing services which are ‘reasonable and necessary’ or ‘appropriate’ in light of clinical standards of practice…. Medicare defines ‘medical necessity’ as services or items reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. While that sounds like a hard and fast rule, consider that CMS (formerly HCFA) has the power under the Social Security Act to determine if the method of treating a patient in the particular case is reasonable and necessary on a case-by-case basis.”); Sabin & Daniels, supra note 10, at 5 (examining medical necessity in the context of mental health care).

  83. Brewer, 921 F.2d at 153–154 (“[L]aypersons are inclined to focus on the symptoms of an illness; illnesses whose primary symptoms are depression, mood swings and unusual behavior are commonly characterized as mental illnesses regardless of their cause…”).

  84. U.S. Library of Congress, Project on Decade of the Brain, available at http://www.loc.gov/loc/brain/ (last visited Jan. 30, 2008).

  85. Robert Pear, White House Plan Would Cover Cost of Mental Illness, N.Y. Times, Mar. 16, 1993, at A1 (citing National Advisory Mental Health Council, Health Care Reform for Americans with Severe Mental Illnesses, 150 Am. J. Psychiatry 1447 (1993)).

  86. Id. at A1.

  87. National Advisory Mental Health Council, Health Care Reform for Americans with Severe Mental Illnesses: Report of the National Advisory Mental Health Council, 150 Am. J. Psychiatry 1447, at Abstract (1993).

  88. Hearing before the Subcomm. on Labor, Health & Human Serv., Educ. & Related Agencies of the House Comm. on Appropriations, 104th Cong. 363, 375 (1996) (statement of Stephen Hyman, Director, Nat’l Inst. Mental Health, Department of Health & Human Servs).

  89. U.S. Department Health & Human Servs., Mental Health: A eport of the Surgeon General, Executive Summary vii (1999), available at http://www.surgeongeneral.gov/library/mentalhealth/summary.html (last visited Feb. 2, 2008) (“The U.S. Congress declared the 1990s the Decade of the Brain. In this decade we have learned much through research—in basic neuroscience, behavioral science, and genetics—about the complex workings of the brain. Research can help us gain a further understanding of the fundamental mechanisms underlying thought, emotion, and behavior—and an understanding of what goes wrong in the brain in mental illness. It can also lead to better treatments and improved services for our diverse population….”).

  90. See, e.g., Jason Pontin, Mind Over Matter, with a Machine’s Help, N.Y. Times, Aug. 26, 2007, at F3; Sandra Blakeslee, A Small Part of the Brain and Its Profound Effects, N.Y. Times, Feb. 6, 2007, at F6; Sandra Blakeslee, Just What’s Going on Inside that Head of Yours? N.Y. Times, Mar. 14, 2000, at F6; Holcomb B. Noble, Pain at Work: Startling Images and New Hope, N.Y. T imes, Aug. 10, 1999, at F1.

  91. Doherty, supra note 75.

  92. Shannon, supra note 20, at 75.

  93. See, e.g., Nelson, supra note 17, at 99 (“Nowhere is the gap between science and society more pronounced than in health benefit coverage for mental illness.”); LaFratta, supra note 17, at 406 (same); Kaplan, supra note 26, at 328 (same).

  94. See, e.g., Jacobi, supra note 35, at 186 (“Resistance to such legislation centers on concerns over cost, diagnostic and prognostic indeterminacy, and ambiguity at the line dividing medical from non-medical treatments important to the seriously mentally ill.”); Maggie D. Gold, Must Insurers Treat All Illnesses Equally?—Mental vs. Physical Illness: Congressional and Administrative Failure to End Limitations to and Exclusions from Coverage for Mental Illness in Employer-Provided Health Benefits under the Mental Health Parity Act and the Americans with Disabilities Act, 4 Conn. Ins. L. J. 767, 773 (1997/1998) (same).

  95. See, e.g., Gold, supra note 94, at 774–77 (1997/1998) (applying theories of moral hazard to mental health insurance coverage); LaFratta, supra note 17, at 405 (same).

  96. See, e.g., Jonathan Klick & Thomas Stratmann, Subsidizing Addiction: Do State Health Insurance Mandates Increase Alcohol Consumption?, 35 J. Legal Stud. 175, 176 (2006).

  97. See, e.g., Gold, supra note 94, at 774–77; LaFratta, supra note 17, at 405.

  98. See Kaplan, supra note 26, at 338, n. 97.

  99. See id. at 338, n. 98.

  100. See, e.g., Gold, supra note 94, at 777.

  101. See, e.g., Nelson, supra note 17, at 93. See also Mental Health America, Mental Health Parity Timelines, available at http://www1.nmha.org/state/parity/parityTimeline.cfm (last visited Jan. 3, 2008).

  102. Mental Health Parity Act of 1996, Pub. L. No. 104–204, 702(a), 110 Stat. 2944 (Sept. 26, 1996), codified at 29 U.S.C. § 1185a(a)(1) and (2) (1996).

  103. 29 U.S.C. § 1185a(b)(1) (1996).

  104. Id. § 1185a(b)(2).

  105. See, e.g., The Senate Approves the “2007 Mental Health Parity Act”: Achieving Equal Treatment for the Mentally Ill, available at http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/colb/20071001.html (last visited Feb. 3, 2008).

  106. Paul Wellstone Addiction and Mental Equity Act of 2007, H.R. 1424, 110th Cong., 1st Sess., Mar. 9, 2007; Mental Health Parity Act, S. 558, 110th Cong., 1st Sess., Sept. 19, 2007 (“A bill to provide parity between health insurance coverage of mental health benefits for medical and surgical services”).

  107. See, e.g., The Senate Approves the “2007 Mental Health Parity Act”: Achieving Equal Treatment for the Mentally Ill, available at http://writ.news.findlaw.com/scripts/printer_friendly.pl?page = /colb/20071001.html (last visited Feb. 3, 2008) (“[T]he new law would signal progress in the acceptance of mental illness as a ‘real’ medical condition, one that deserves the same accommodation and concern as heart disease or cancer. Such acceptance could diminish the stigma attached to people who suffer from these conditions and could, accordingly, motivate people who might otherwise feel ashamed to seek care when they need it.”).

  108. Mental Health Parity Act, S. 558, 110th Cong., § 712a(a), Sept. 19, 2007 (only requiring parity for a group health plan that “provides both medical and surgical benefits and mental health benefits”).

  109. Id. § 712a(e)(1) and (2).

  110. See, e.g., Jacobi, supra note 35, at 190 (summarizing state mental health parity laws); Michele Garvin et al., Mental Health Parity: The Massachusetts Experience in Context, 47 B.B.J. 18 (May/June 2003), at *19 (same); National Conference of State Legislatures, State Laws Mandating or egulating Mental Health Benefits (Nov. 1, 2007), available at http://www.ncsl.org/programs/health/mentalben.htm (last visited Feb. 4, 2008) (same).

  111. Garvin et al., supra note 110, at *19.

  112. See, e.g., Brunalli, supra note 34, at 601 (describing different states’ definitions of mental illness); Michael J. Carroll, The Mental Health Parity Act of 1996: Let It Sunset if Real Changes Are Not Made, 52 Drake L. ev. 553, 570–71 (2004) (same).

  113. Conn. Gen. Stat. § 38a-514(a) (2008) (excluding caffeine use disorders and other less serious mental disorders).

  114. Mont. Code Ann. § 33–22–706(6)(a)-(g) (2007).

  115. N.J. Stat. Ann. § 17B:27A-19 (2007).

  116. Neb. ev. Stat. § 44–792(5)(a) (2008).

  117. Nelson, supra note 17, at 108.

  118. Neb. ev. Stat. § 44–792(5)(a) (2008).

  119. See, e.g., N.J. Stat. Ann. § 17B:27A-19 (2007) (mandating insurance coverage for “a mental or nervous condition… that substantially limits the functioning of the person with the illness…”).

  120. See, e.g., Mark Pettit, FMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, 33 Am. J. L. & Med. 319 (2007); Leo Kittay, Admissibility of fMRI Lie Detection: The Cultural Bias against “Mind Reading” Devices, 72 Brooklyn L. ev. 1351 (2007); Erin A. Egan, Neuroimaging as Evidence, 7(9) Am. J. Bioethics-Neuroscience 62 (2007); Jocelyn Downie & Ronalda Murphy, Inadmissible, Eh? 7(9) Am. J. Bioethics-Neuroscience 67 (2007); Charles N. W. Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 Hastings L.J. 509 (2006); Archie Alexander, Functional Magnetic Resonance Imaging Lie Detection: Is a “Brainstorm” Heading for the Gatekeeper? 7 Houston J. Health L. & Pol’y 1 (2006).

  121. See, e.g., the Mental Health Parity Act of 1996, codified at 29 U.S.C. § 1185a(C)(2) (allowing insurers to opt out of parity if parity raises overall plan costs more than one percent); Mental Health Parity Act of 2007, S. 558, 110th Cong., § 712a(e)(1) and (2), Sept. 19, 2007 (exempting from parity group health plans “whose compliance would increase total costs by more than 2% during the first year or by more than 1% each subsequent year”).

  122. See, e.g., Sabin & Daniels, supra note 10, at 5 (discussing medical necessity in the context of mental health care).

  123. Shannon, supra note 20, at 397, n.145 (citing Tex. Floor Debate, 71st Leg. Reg. Sess. (Apr. 25, 1991) (transcript available from Senate Journal Office; Statement of Sen. Moncrief)).

  124. Id.

  125. Beth Mellen Harrison, Mental Health Parity, 39 Harv. J. Legis. 255, 265 (2002) (“Given these advances in research, there is no scientific justification for treating mental health services differently than general medical services.”).

  126. Representative Patrick J. Kennedy, Why We Must End Insurance Discrimination Against Mental Health Care, 41 Harv. J. Legis. 363, 367 (2004).

  127. Id. at 367, n.39.

  128. Id. at 374–75.

  129. Paul Wellstone Addiction and Mental Equity Act of 2007, H.R. 1424, 110th Cong., 1st Sess., Mar. 9, 2007.

  130. See, e.g., 42 U.S.C. § 423(d)(1)(A), 423(d)(3) (2007) (defining disability for purposes of Social Security Disability Insurance as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months... For purposes of this subsection, a ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”).

  131. See, e.g., Social Security Administration, Disability Evaluation under Social Security, Blue Book, at Part II, Evidentiary Requirements (June 2006; amended April 2007), avail-able at http://www.ssa.gov/disability/professionals/bluebook/evidentiary.htm (last visited Feb. 7, 2008) (“Under both the Title II and Title XVI programs, medical evidence is the cornerstone for the determination of disability.”).

  132. 42 U.S.C. § 423(d)(5)(A) (2007).

  133. Id. § 423(d)(5)(A) (2007) (“An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section….”).

  134. Id. § (“[T]here must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.”).

  135. Bartyzel v. Commissioner, 74 Fed. Appx. 515, 527 (6th Cir. 2003) (“[T]he following findings will be sufficient, although not required, to establish a medically determinable impairment under the Act:... An abnormal magnetic resonance imaging (MRI) brain scan…”).

  136. Id. at 515.

  137. Id. at 524 (citing 42 U.S.C. § 423(d)(5)(A) (2008) (“‘there must be medical signs and findings, established by medically acceptable or clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain.’”)); id. at 527 (“[E]vidence of an impairment must include objective clinical or laboratory manifestations.”).

  138. Id. at 527.

  139. Id. at 528–529.

  140. Boyd v. Bert Bell/Pete Rozelle NFL Players Retirement Plan, 410 F.3d 1173 (9th Cir. 2005).

  141. Id. at 1175.

  142. Id. at 1177.

  143. Id.

  144. Id.

  145. Id. at 1179.

  146. See, e.g., Kearney v. Standard Insurance Co., 175 F.3d 1084, 1092 (1999) (in which a physician recommended a brain scan to clarify the disability insurance claimant’s diagnosis of possible metabolic disturbance, early Alzheimer’s disease, episode of ischemia, or embolus to the brain).

  147. The health, disability, and welfare case law is filled with claims by plaintiffs for benefits based on a range of novel conditions and behaviors, such as phobia of driving in unfamiliar locations, known propensity to engage in risky behavior, ability to become angered easily, sensitivity to fragrances, cat and dog allergies, other allergies and chemical sensitivities, fear of cancer, grief, conversion disorder, albinism, eosinophilia, generalized stress, and so on. See, e.g., Sinkler v. Midwest Property Management, 209 F.3d 678 (7th Cir. 2000) (phobia of driving anywhere unfamiliar did not substantially limit plaintiff’s ability to work and therefore is not a disability); Christian v. St. Anthony Medical Center, 117 F.3d 1051 (7th Cir. 1997) (plaintiff claimed disability of high cholesterol level); Fenton v. Pritchard Corp. 926 F. Supp. 1437 (D. Kan. 1996) (plaintiff’s propensity to “go postal” or “go ballistic” not a disability); Kaufmann v. GMAC Mortgage, 2007 WL 1933913 (3rd Cir. 2007) (plaintiff claimed disability of fragrance sensitivity); Gallagher v. Sunrise Assisted Living of Haverford, 268 F. Supp.2d 436 (E.D. Pa. 2003) (allergy to cats and dogs not a disability); Shah v. Upjohn Co., 922 F. Supp. 15 (W.D. Mich. 1995) (allergy to job and fear of cancer do not constitute disabilities); Bukta v. J.C. Penney Co., Inc., 359 F. Supp.2d 649 (2004) (plaintiff claimed conversation disorder was disability); Baker v. Greyhound Bus Line, 240 F. Supp.2d 454 (D. Md. 2003) (albinism not disability); 42 U.S.C.A. § 12102, Notes of Decisions, 44–149 (2005) (annotated list of hundreds of cases in which plaintiffs claim tradition and novel disabilities).

  148. 42 U.S.C. § 423(d)(1)(A), (d)(2) (2007) (“An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), ‘work which exists in the national economy’ means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.”).

  149. Carter v. Schweiker, 649 F.2d 937, 940 (2nd Cir. 1981)

  150. Id. at 940-41 (“The record contains substantial evidence to support the ALJ’s determination that Carter’s seizures were not disabling. None of the physicians who treated or examined Carter indicated that her seizures so severely restricted her ability to engage in ‘substantial gainful activity’ as to be disabling.”).

  151. Fitts, 2007 U.S. Dist. LEXIS 33397, *25.

  152. Sabin & Daniels, supra note 10, at 5.

  153. Id. See also William M. Glazer, Psychiatry and Medical Necessity, 22(7) Psychiatric Annals 362 (July 1992).

  154. See Sabin & Daniels, supra note 10, at 10-11 (offering three approaches to health care).

  155. See, e.g., Robert Klitzman, Clinicians, Patients, and the Brain, in Neuroethics: Defining the Issues in Theory, Practice, and Policy 229, 236 (Judy Illes ed., 2006) (“What if clinicians can improve upon a person’s baseline level of cognitive functioning? Should clinicians be limited in doing so in any way?”); Erik Parens, How Far Will the Term Enhancement Get Us as We Grapple with New Ways to Shape Our Selves? in Neuroethics: Mapping the Field 152 (Steven J. Marcus ed., 2002) (same).

  156. See Sabin & Daniels, supra note 10, at 12.

  157. See David B. Wexler, Putting Mental Health into Mental Health Law: Therapeutic Jurisprudence, in Essays in Therapeutic Jurisprudence 7, 10 (David B. Wexler & Bruce J. Winick eds., 1991) (encouraging stakeholders to consider ways in which the clinical literature might bear on the formulation of legal arrangements).

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    Stacey A. Tovino

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Tovino, S.A. The Impact of Neuroscience on Health Law. Neuroethics 1, 101–117 (2008). https://doi.org/10.1007/s12152-008-9010-z

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