Changes to Mental Disorders

While many of the changes to the DSM have gone unnoticed, others have caused significant controversy within the medical world. Most notable is the complete overhaul of Autistic classifications. In addition, other new psychiatric disorders have been scrutinized since the DSM-V release, including the recognition of Cannabis Withdrawal as a psychological disorder, and other controversial categorical revisions.

Autism

Among the most important changes is the modification to Autism. Under its prior iteration, the DSM-IV had four sub-categories of Autism, namely: 1) autistic disorder; 2) Asperger's disorder; 3) childhood disintegrative disorder; and 4) Pervasive Development Disorder Not Otherwise Specified (PDD-NOS).

The Center for Disease Control (CDC) observed that under this sub-categorical system, one in 88 children were eligible for classification within one of these four categories. The vast majority of this diagnosis fell within PDD-NOS ' the virtual “catch-all” of Autistic disorders, whereby a patient would display some form of communication disorder, but not pervasive enough to be otherwise classified as a higher form of Autism.

Under the new classifications, the four subcategories of Autism have been eliminated. Now there is only a single classification ' Autism Spectrum Disorder (ASD). Instead of separate classifications, a patient diagnosed with ASD will be placed on a “sliding scale” identified by three levels of severity: Level 1 ' Requiring Support; Level 2 ' Requiring Substantial Support; and Level 3 ' Requiring Very Substantial Support.

The critical change between these two regimes will be to those that exhibit significant social communication challenges, but not so pervasive as to qualify for ASD. While these patients would formerly be deemed Autistic, and diagnosed as PDD-NOS, such persons will likely now be diagnosed with “Social Communication Disorder.”

Although seemingly positive that much fewer people will be deemed “Autistic,” the real price comes with the limited therapies for those who no longer qualify. As it now stands, a person diagnosed with Autism, or ASD, qualifies for a host of therapies, including speech, occupational, behavioral and possibly physical. With the declassification of PDD-NOS, the vast majority of persons previously diagnosed as Autistic risk the loss of insurance coverage for these therapies.

The reaction to the modifications of Asperger's/ASD has been immediate and yet somewhat limited. The DSM-V, itself, notes that those with Asperger's should be given the diagnosis of ASD while those diagnosed with lower forms of Autism should be reevaluated for social communication disorder. It is expected that this language will encourage insurance companies to require reevaluations and attempt to reduce or eliminate the payment for these therapies.

To date, only one state has taken legislative action to prevent this. In June 2013, Connecticut passed a law allowing all persons diagnosed with Autism under the DSM-IV to retain that designation with respect to the DSM-V. See S.B. No. 1029. While no other state has followed this lead, the effects of this reclassification are expected to be widespread and met with harsh resistance.

Cannabis Withdrawal

An additional new and controversial change to the DSM-V is the introduction of Cannabis Withdrawal as a recognized psychiatric disorder. Cannabis Withdrawal avails itself to persons ceasing the use of marijuana. It is expected that more people meet the criteria for abuse of marijuana than any other illicit drug. This, in turn, means that the largest pool of illegal-drug users could now be eligible for insurance-sponsored treatment for withdrawal.

The introduction of Cannabis Withdrawal as a disorder comes at a time when the drug ' and its legalization ' is front-page news. Nearly two dozen states presently permit marijuana for medicinal purposes, and two for medical and/or recreational use. These numbers are only expected to rise.

This dichotomy of increased marijuana legalization and the recognition of Cannabis Withdrawal as a psychological disorder is likely to have a two-fold effect on insurance.

The first effect is on workers' compensation claims. Studies have confirmed that cannabis contains active ingredients with therapeutic potential for pain relief, controlling nausea, stimulating appetite and decreasing ocular pressure, with relatively low side effects (when compared with alternatives, such as legal opiates). Because of its versatile use, the increased legalization of cannabis, nationwide, will result in an increase of medicinal marijuana prescriptions. Therefore, a spike in workers' compensation insurance claims for the payment of medicinal marijuana is expected.

The second effect of the legalization is the increased number of insurance claims for the treatment of Cannabis Withdrawal. With the introduction of this as a recognized psychiatric disorder, the number of persons eligible for insurance-paid treatment will only increase.

Whether it's prescription-based, legal/recreational marijuana use, or simply a changing attitude, America is now using cannabis more openly as its legal acceptance becomes more prevalent. A “Catch-22″ could potentially erupt in the insurance world, whereby insurers may be first required to pay for its insured's cannabis prescriptions, only to then be forced to pay for treatment to these same individuals for the effects of Cannabis Withdrawal. An ironic situation is thus created whereby insurance companies could be forced to pay for both the cause and the treatment of Cannabis Withdrawal.

The largest impact marijuana use and Cannabis Withdrawal will have on employers relates to the employment decision for those testing positive for marijuana.

Marijuana consumption may be asserted by an employer as a safety rule violation or termination for cause in a worker's compensation claim. Because Cannabis Withdrawal is now a viable psychiatric disorder, a spike in employment discrimination claims under the ADA is likely by employees asserting addiction and/or treatment for marijuana as a basis for their disability, thereby granting them a host of legal rights and protections under federal law.

In the coming years, employers can expect to spend large sums of litigation dollars ferreting out those that have legitimate addiction and withdrawal claims with those that are “gaming” the system ' knowing the expense, negative press, and potential exposure that are associated with ADA claims.

Conclusion

Industry executives, human resources professionals, and in-house counsel would be wise to watch the development of novel legal theories being used by claimants and their attorneys in bringing new claims based on these medical reclassifications. As the medical community continues to undertake efforts to assist the public, the law of unintended consequences is likely to apply in terms of litigation outcome. These reclassifications are almost certain to attract attention from plaintiffs' lawyers around the country. No doubt this is an area where strategic planning and preparation are required right now to ensure benefit plans align with these reclassifications as well as the likely onslaught of EEOC, ERISA and ADA litigation.

Frank Cragle and Jaime Wisegarver are attorneys in Richmond, VA's Hirschler Fleischer. They practice in the Litigation Section and are members of the firm's Insurance Recovery Group. Cragle may be reached at 804-771-9515 or [email protected]. Wisegarver may be reached at 804-771-5634 or [email protected].

The Patient Protection and Affordable Care Act (ACA) is not the only health-care challenge facing employers. Recent medical disease reclassifications are affecting a large portion of America's workforce, and the long-term impact is proving difficult to predict. These changes may result in an increased number of workers' compensation and Americans with Disabilities Act (ADA) discrimination claims, but hopefully, they will also result in a greater emphasis placed upon prevention and treatment. While this article analyzes the recent reclassifications and provides recommendations to employers, ultimately, the impact of the reclassifications will likely be decided by the courts.

Reclassifications Within the DSM-V

The Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association (APA), is deemed the “Bible” of psychiatric disorders. It is utilized by health-care professionals and insurance companies alike to determine grant funding, insurance coverage and health-care policies. In May 18, 2013, the APA issued the DSM-V, the fifth iteration of this psychiatric handbook, reflecting some of the most dramatic changes in psychiatric evaluation and classification since its inception.

While many of the changes to the DSM have gone unnoticed, others have caused significant controversy within the medical world. Most notable is the complete overhaul of Autistic classifications. In addition, other new psychiatric disorders have been scrutinized since the DSM-V release, including the recognition of Cannabis Withdrawal as a psychological disorder, and other controversial categorical revisions.

Autism

Among the most important changes is the modification to Autism. Under its prior iteration, the DSM-IV had four sub-categories of Autism, namely: 1) autistic disorder; 2) Asperger's disorder; 3) childhood disintegrative disorder; and 4) Pervasive Development Disorder Not Otherwise Specified (PDD-NOS).

The Center for Disease Control (CDC) observed that under this sub-categorical system, one in 88 children were eligible for classification within one of these four categories. The vast majority of this diagnosis fell within PDD-NOS ' the virtual “catch-all” of Autistic disorders, whereby a patient would display some form of communication disorder, but not pervasive enough to be otherwise classified as a higher form of Autism.

Under the new classifications, the four subcategories of Autism have been eliminated. Now there is only a single classification ' Autism Spectrum Disorder (ASD). Instead of separate classifications, a patient diagnosed with ASD will be placed on a “sliding scale” identified by three levels of severity: Level 1 ' Requiring Support; Level 2 ' Requiring Substantial Support; and Level 3 ' Requiring Very Substantial Support.

The critical change between these two regimes will be to those that exhibit significant social communication challenges, but not so pervasive as to qualify for ASD. While these patients would formerly be deemed Autistic, and diagnosed as PDD-NOS, such persons will likely now be diagnosed with “Social Communication Disorder.”

Although seemingly positive that much fewer people will be deemed “Autistic,” the real price comes with the limited therapies for those who no longer qualify. As it now stands, a person diagnosed with Autism, or ASD, qualifies for a host of therapies, including speech, occupational, behavioral and possibly physical. With the declassification of PDD-NOS, the vast majority of persons previously diagnosed as Autistic risk the loss of insurance coverage for these therapies.

The reaction to the modifications of Asperger's/ASD has been immediate and yet somewhat limited. The DSM-V, itself, notes that those with Asperger's should be given the diagnosis of ASD while those diagnosed with lower forms of Autism should be reevaluated for social communication disorder. It is expected that this language will encourage insurance companies to require reevaluations and attempt to reduce or eliminate the payment for these therapies.

To date, only one state has taken legislative action to prevent this. In June 2013, Connecticut passed a law allowing all persons diagnosed with Autism under the DSM-IV to retain that designation with respect to the DSM-V. See S.B. No. 1029. While no other state has followed this lead, the effects of this reclassification are expected to be widespread and met with harsh resistance.

Cannabis Withdrawal

An additional new and controversial change to the DSM-V is the introduction of Cannabis Withdrawal as a recognized psychiatric disorder. Cannabis Withdrawal avails itself to persons ceasing the use of marijuana. It is expected that more people meet the criteria for abuse of marijuana than any other illicit drug. This, in turn, means that the largest pool of illegal-drug users could now be eligible for insurance-sponsored treatment for withdrawal.

The introduction of Cannabis Withdrawal as a disorder comes at a time when the drug ' and its legalization ' is front-page news. Nearly two dozen states presently permit marijuana for medicinal purposes, and two for medical and/or recreational use. These numbers are only expected to rise.

This dichotomy of increased marijuana legalization and the recognition of Cannabis Withdrawal as a psychological disorder is likely to have a two-fold effect on insurance.

The first effect is on workers' compensation claims. Studies have confirmed that cannabis contains active ingredients with therapeutic potential for pain relief, controlling nausea, stimulating appetite and decreasing ocular pressure, with relatively low side effects (when compared with alternatives, such as legal opiates). Because of its versatile use, the increased legalization of cannabis, nationwide, will result in an increase of medicinal marijuana prescriptions. Therefore, a spike in workers' compensation insurance claims for the payment of medicinal marijuana is expected.

The second effect of the legalization is the increased number of insurance claims for the treatment of Cannabis Withdrawal. With the introduction of this as a recognized psychiatric disorder, the number of persons eligible for insurance-paid treatment will only increase.

Whether it's prescription-based, legal/recreational marijuana use, or simply a changing attitude, America is now using cannabis more openly as its legal acceptance becomes more prevalent. A “Catch-22″ could potentially erupt in the insurance world, whereby insurers may be first required to pay for its insured's cannabis prescriptions, only to then be forced to pay for treatment to these same individuals for the effects of Cannabis Withdrawal. An ironic situation is thus created whereby insurance companies could be forced to pay for both the cause and the treatment of Cannabis Withdrawal.

The largest impact marijuana use and Cannabis Withdrawal will have on employers relates to the employment decision for those testing positive for marijuana.

Marijuana consumption may be asserted by an employer as a safety rule violation or termination for cause in a worker's compensation claim. Because Cannabis Withdrawal is now a viable psychiatric disorder, a spike in employment discrimination claims under the ADA is likely by employees asserting addiction and/or treatment for marijuana as a basis for their disability, thereby granting them a host of legal rights and protections under federal law.

In the coming years, employers can expect to spend large sums of litigation dollars ferreting out those that have legitimate addiction and withdrawal claims with those that are “gaming” the system ' knowing the expense, negative press, and potential exposure that are associated with ADA claims.

Conclusion

Industry executives, human resources professionals, and in-house counsel would be wise to watch the development of novel legal theories being used by claimants and their attorneys in bringing new claims based on these medical reclassifications. As the medical community continues to undertake efforts to assist the public, the law of unintended consequences is likely to apply in terms of litigation outcome. These reclassifications are almost certain to attract attention from plaintiffs' lawyers around the country. No doubt this is an area where strategic planning and preparation are required right now to ensure benefit plans align with these reclassifications as well as the likely onslaught of EEOC, ERISA and ADA litigation.

Frank Cragle and Jaime Wisegarver are attorneys in Richmond, VA's Hirschler Fleischer. They practice in the Litigation Section and are members of the firm's Insurance Recovery Group. Cragle may be reached at 804-771-9515 or [email protected]. Wisegarver may be reached at 804-771-5634 or [email protected].