Changes Considered in Medical Leave for Stress-Induced Mental Illness

June 2, 2008
Stephen Barlas

Volume 25, Issue 7

Business groups are pressing the Department of Labor (DOL) to eliminate "serious mental illness resulting from stress" from the "serious health conditions" an employee can cite when requesting unpaid leave under the Family and Medical Leave Act (FMLA) of 1993. The effort is being orchestrated by the Society for Human Resource Management (SHRM) and is being backed by personnel executives at companies such as Wal-Mart.

Business groups are pressing the Department of Labor (DOL) to eliminate "serious mental illness resulting from stress" from the "serious health conditions" an employee can cite when requesting unpaid leave under the Family and Medical Leave Act (FMLA) of 1993. The effort is being orchestrated by the Society for Human Resource Management (SHRM) and is being backed by personnel executives at companies such as Wal-Mart.

This is the DOL's first attempt to make significant changes to the 1993 act. By the DOL's own admission, the definition of "serious health conditions" has been controversial for the past 15 years. There have been numerous court cases surrounding questions such as if and when a common cold can escalate into a serious health issue. To help clarify that question and others that have found their way into federal courts, the DOL issued a proposed rule in February that makes some major changes in the FMLA. However, the department did not propose to alter specific language in the 1993 law that states that serious mental illness from stress can be a legitimate reason for requesting leave.

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid leave during a 12-month period for the birth of a child; for the placement of a child for adoption or foster care; to care for a newborn or newly placed child; to care for a spouse, parent, son, or daughter with a serious health condition; or when the employee is unable to work because of his or her own serious health condition. The 12 weeks of leave may be taken consecutively or, under certain circumstances, intermittently or on a reduced leave schedule.

In an interview, Michael P. Aitken, director of governmental affairs for the SHRM, told Psychiatric Times that his group has no problem with an employee taking FMLA leave for either a serious mental illness or even for a workplace stress–induced mental illness outbreak if, in the latter case, stress has exacerbated an underlying mental illness that was previously diagnosed by a physician. In comments he submitted to the DOL, Aitken stated, "Stress is an unfortunate part of most jobs in today's economy and is frequently open to interpretation or, at best, self-diagnosis. The cited phrase improperly suggests that stress alone can cause mental illness, a doubtful proposition given the complex and still largely unexplained etiology of mental illness."Aitken's position was seconded by Harold Stewart, human resource manager, Wal-Mart Stores in Utah, and many other business representatives who wrote to the DOL.

Aitken added that even when stress legitimately ignites an underlying mental illness, 2 potential problems arise. First, an employee alleging stress can go to a physician and get an open-ended medical certification that allows the employee to take off any of those 12 weeks, or parts of them, whenever the employee decides it is necessary. "The problem is the open-ended medical certification," stated Aitken. The DOL's new proposed rule addresses that by allowing an employer to request that an employee get a medical recertification every 6 months, while the original certification specifies an open-ended condition requiring inter- mittent leave. Aitken explained that the new requirement satisfies the SHRM but that the group still wants the DOL to cut the language alluding to "mental illness resulting from stress" from the 1993 statute.

Part of the reason for the SHRM's continuing objection to that language is that it leads to employees taking intermittent leave of their own accord, which makes it hard for employers to plan and implement work schedules. Aitken added, "If someone is bipolar, and is taking medication, and is under a doctor's supervision, if they want to take a day off, fine. We just want to know about it ahead of time."

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Challenge to Restrictions on Case Management Services for Mentally Ill

The House passed a bill on April 23 that would erase a March 3 Medicaid rule restricting the use of case management services. That rule was assailed by the National Alliance on Mental Illness (NAMI), which argued the restrictions badly hinder persons with serious mental illnesses from being reintegrated into their communities after hospitalization.

Medicaid adopted the restrictions to comply with the congressional Deficit Reduction Act of 2005 that sought to close some of the so-called loopholes that states have used to bill the federal government for excessive Medicaid costs. The federal government typically contributes 57% of Medicaid costs, with the rest borne by the states. It is estimated that the federal share will reach $204 billion in 2008. NAMI believes that the new Medicaid restrictions go far beyond what Congress authorized in 2005, and it cites the original estimate by the Congressional Budget Office that the case management restrictions in the 2005 law would save about $760 million a year. The Centers for Medicaid and Medicare Services (CMS) have estimated that the changes that became effective on March 3 would save $1.28 billion a year.

The House bill (HR 5613), which passed by a vote of 349-62 on April 23, would prevent 7 new Medicaid rules from going into effect until April 1, 2009, when a new administration will be in office. Although President Bush has threatened to veto the bill if it passes Congress, the bill had substantial support from Republicans in the House, which could override a veto. The Senate has not acted on the bill yet but will do so soon. There, the question will be whether enough Republican senators will approve the legislation. Sen Charles Grassley (R, Iowa), who is the top Republican on the Senate Finance Committee and who has repeatedly fought for additional restraints on Medicaid fraud, has criticized the House bill. However, the Senate included a 1-year delay of the case management restrictions in a bill (S 1200) dealing with health services to Indian tribes, which the Senate passed on February 26, 2008.

When he appeared before a House subcommittee on April 3, 2008, the director of the Center for Medicaid and State Operations at CMS, Dennis Smith, said the Medicaid interim final rule on case management services took its particulars from work done by the Government Accounting Office and the Office of the Inspector General at the Department of Health and Human Services with regard to state misuse of case management services. "We certainly recognize that these rules challenge the status quo," Smith admitted.