This blog is written by Mr. Steven C. Schurr, Esq. and focuses on health care law matters that pertain to food and drug law, regulatory compliance, privacy rights, insurance coverage, state and federal disability coverage, patient advocacy issues, and mental health coverage and treatment.

Thursday, December 17, 2009

COBRA Extension to 15 Months

House Lawmakers Approve COBRA Subsidy Extension

December 16, 2009 ( – The U.S. House of Representatives on Wednesday approved a bill that would extend federal COBRA health coverage cost subsidies for involuntarily terminated employees.

Sunday, December 13, 2009

The Illinois Mental Health Treatment Preference Declaration Act

In Illinois, an individual of sound mind may make an advance declaration of preferences or instructions regarding mental health treatment. See the Mental Health Treatment Preference Declaration Act, 755 ILCS 43. If you suffer from a recurring mental illness, I recommend that you implement such a directive on your behalf when you are of sound mind. This will help you maintain control over your situation if you later become incapacitated.


In the declaration, the individual may designate a competent individual to be an agent to make decisions about mental health treatment if the principal is incapable. The individual may also designate an alternative mental health care agent. 755 ILCS 43/15. Under the law, the treating physician must continue to obtain the individual’s informed consent to all mental health treatment decisions if the individual is capable of providing informed consent or refusal. 755 ILCS 43/25. The designated agent has no authority to make mental health treatment decisions unless the individual is incapable. 755 ILCS 43/30(a). In addition, the treating physician or health care provider and the owner, operator or employee of the health care facility cannot act as the designated agent. 755 ILCS 43/60.

Issues Addressed

In the declaration, the individual may address the following issues:

1.) Consent or refusal to the administration of psychotropic medications;

2.) Consent or refusal to electroconvulsive therapy;

3.) Consent or refusal to admission and retention in a mental health facility;

4.) Selection of a treating physician; and

5.) Any other pertinent matters (for example, medications that you react more favorably to versus others, who may visit you while you are institutionalized, etc.)

Duration of Effectiveness

Such a declaration remains valid for three years, and continues past the three-year period if the individual is mentally incapacitated at the time of expiration of the three year period. 755 ILCS 43/10(2). Under the statute, a person is “incapable” if, in the opinion of two physicians or a court, the individual’s ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the individual currently lacks the capacity to make mental health treatment decisions. 755 ILCS 43/5(5). The individual may revoke the declaration in writing, but only if he/she is capable. 755 ILCS 43/50.

Duties of Treating Provider

Once a declaration is implemented, the physician or health care provider must comply with the declaration unless: 1.) a court order contradicts the declaration or 2.) an emergency endangering life or health arises. The declaration does not limit the provider’s rights to implement commitment proceedings under Illinois law. 755 ILCS 43/45.

Confidentiality of Mental Health Records

The agent may obtain and consent to disclosure of mental health records, but this right of access does not waive any pre-existing legal privilege regarding the confidentiality of the mental health records. 755 ILCS 43/30(3).

Liability of Designated Agent

The designated agent is not personally liable for the resulting costs of the mental health treatment that he/she directs. 755 ILCS 43/30(2).

Proper Execution

A declaration is effective only if it is signed by the individual and witnessed by two competent adults who must attest that the principal is known to them, signed the declaration in their presence and appears to be of sound mind and not under duress, fraud or undue influence. 755 ILCS 43/20. The following people may not serve as witnesses: 1.) a family member related to the individual by blood, marriage or adoption, 2.) the treating physician or health care provider, and 3.) the owner, operator or employee of the health care facility.

Contact the Schurr Health Care Legal Clinic at 312-560-4202 if you desire such a directive.



Friday, December 4, 2009

Mental Health Parity Law Effective 2010

Because I've had some questions, I thought I would repost a blog that I posted previously in 2008 in regards to the Mental Health Parity Law.


Previously posted:

At least one good thing came out of the recent financial troubles that our country has been experiencing. After more than 10 years of trying, Congress has passed a law that requires employer-sponsored health care plans to treat mental health disorders to the same level and degree as they do physical ailments.

The new requirements are included in the Emergency Economic Stabilization Act (H.R. 1424), which is the "economic bailout" bill that President Bush signed into law on October 3, 2008. For years, plans have generally been less generous in their coverage of treatment for mental illness. The new law becomes effective in 2010 and generally applies to employers with more than 50 workers, with certain exceptions.

Under the new law, plan participants cannot be required to pay more in deductibles, copayments, coinsurance and out-of-pocket expenses for mental health and substance use disorder benefits than they are required to pay for the plan's most common or frequent types of medical/surgical benefit. The new law prevents plans from limiting the frequency of treatment, the number of visits, the days of coverage, etc. for mental health/substance use treatment moreso than they do for medical/surgical benefits. In addition, "out-of-network" mental health services must be covered under the law if they are covered for medical/surgical benefits.

A plan must provide a legally acceptable definition of "mental health" and "substance use disorder" and is permitted to use utilization review and/or pre-authorization to determine medical necessity and appropriateness. The plan administrator must disclose any medical necessity determination criteria to any participant upon request. Also, the reason for any denial of reimbursement or payment also must be provided.

The law provides a penalty of up to $100/day for non-compliance and allows plan participants to file civil lawsuits to obtain inappropriately denied benefits. Steve