Presented at the 6th International Gambling Conference in February 2016. Keynote address by Stacey Tovino

1. Legal Protections forLegal Protections for
Individuals with Gambling Disorder:Individuals with Gambling Disorder:
The U.S. ExperienceThe U.S. Experience
Stacey Tovino, JD, PhDStacey Tovino, JD, PhD
Lehman Professor of LawLehman Professor of Law
Director, Health Law ProgramDirector, Health Law Program
William S. Boyd School of LawWilliam S. Boyd School of Law
University of Nevada, Las VegasUniversity of Nevada, Las Vegas

2. IllustrativeIllustrative
Legal Benefits, Protections, and RightsLegal Benefits, Protections, and Rights
1.1. Health Insurance CoverageHealth Insurance Coverage
2.2. Disability Discrimination ProtectionDisability Discrimination Protection
3.3. Disability Benefit EligibilityDisability Benefit Eligibility
4.4. Administrative Law – Professional DisciplineAdministrative Law – Professional Discipline
5.5. Criminal Law – Treatment DiversionCriminal Law – Treatment Diversion
22

3. 1. Health Insurance Coverage1. Health Insurance Coverage
33

4. Traditional Examples ofTraditional Examples of
Mental Health Benefit DisparitiesMental Health Benefit Disparities
 No coverage of mental health careNo coverage of mental health care
 Lower lifetime spending caps on mental health careLower lifetime spending caps on mental health care
 Lower annual spending caps on mental health careLower annual spending caps on mental health care
 Lower number of covered inpatient daysLower number of covered inpatient days
 Lower number of covered outpatient visitsLower number of covered outpatient visits
 Higher deductibles, copayments, and coinsurance amountsHigher deductibles, copayments, and coinsurance amounts
 More stringent medical necessity requirementsMore stringent medical necessity requirements
 Broader experimental/investigative exclusionsBroader experimental/investigative exclusions

5. Illustrative Gambling Disorder ExclusionIllustrative Gambling Disorder Exclusion
55

6. 66
Illustrative Gambling Disorder ExclusionIllustrative Gambling Disorder Exclusion

7. Illustrative Gambling Disorder ExclusionIllustrative Gambling Disorder Exclusion
77

8. New Mexico’s Mental Health Parity LawNew Mexico’s Mental Health Parity Law
N.M.S.A. 59A-23E-18FN.M.S.A. 59A-23E-18F
 ““As used in this section, ‘mental health benefits’ meansAs used in this section, ‘mental health benefits’ means
mental health benefits as described in the group healthmental health benefits as described in the group health
plan, or group health insurance offered in connectionplan, or group health insurance offered in connection
with the plan;with the plan; but does not include benefits withbut does not include benefits with
respect to treatment ofrespect to treatment of substance abuse, chemicalsubstance abuse, chemical
dependency ordependency or gambling addiction.”gambling addiction.”
88

11. Limitations of MHPA ‘96Limitations of MHPA ‘96
 Not a mandated benefit lawNot a mandated benefit law
 Expressly excluded protections for individuals withExpressly excluded protections for individuals with
substance-related and addictive disorderssubstance-related and addictive disorders
 Did not require parity in any context other than lifetimeDid not require parity in any context other than lifetime
and annual spending limitsand annual spending limits
 Only regulated large group health plansOnly regulated large group health plans
1111

13. Deductibles,
copayments,
coinsurance
Inpatient day
limits,
Outpatient
visit limits

14. Benefits and Limitations ofBenefits and Limitations of
MHPAEA ‘08MHPAEA ‘08
 BenefitsBenefits

Expressly protects individuals with substance-relatedExpressly protects individuals with substance-related
and addictive disordersand addictive disorders

Extends parity to the contexts of financialExtends parity to the contexts of financial
requirements and treatment limitationsrequirements and treatment limitations
 LimitationsLimitations

Still not a mandated benefit lawStill not a mandated benefit law

Only regulates large group health plansOnly regulates large group health plans
1414

15. Not a Mandated Benefit LawNot a Mandated Benefit Law
((SeeSee 75 Fed. Reg. 5410, 5413 (Feb. 2, 2010))75 Fed. Reg. 5410, 5413 (Feb. 2, 2010))
1515

17. Essential Health Benefits (EHB)Essential Health Benefits (EHB)
ACA 1302(b)(1)ACA 1302(b)(1)

18. State Benchmark PlansState Benchmark Plans
Nevada (2014-2016)Nevada (2014-2016)
1818

19. Included in Nevada’s Benchmark PlanIncluded in Nevada’s Benchmark Plan
(2014-2016)(2014-2016)
1919

20. Excluded from Nevada’s Benchmark PlanExcluded from Nevada’s Benchmark Plan
(2014-2016)(2014-2016)
2020
Pathological Gambling

21. The Impact of the DSM-5 onThe Impact of the DSM-5 on
Health Insurance Coverage of Gambling DisorderHealth Insurance Coverage of Gambling Disorder
 DSM-IVDSM-IV

Impulse control disordersImpulse control disorders
• Pathological gamblingPathological gambling
 DSM-5DSM-5

Substance-related and addictive disordersSubstance-related and addictive disorders
• Gambling disorderGambling disorder
2121

22. 2222

23. 2323

24. Essential Health Benefits in NevadaEssential Health Benefits in Nevada
(2017 – Forward)(2017 – Forward)
2424

25. Excluded from Nevada’s Benchmark PlanExcluded from Nevada’s Benchmark Plan
(2017 – Forward)(2017 – Forward)
2525

26. Exclusion Now Prohibited in NevadaExclusion Now Prohibited in Nevada
(2017 – Forward)(2017 – Forward)
2626

27. 2. Disability Discrimination Protection2. Disability Discrimination Protection
2727

28. Americans with Disabilities ActAmericans with Disabilities Act
of 1990 (ADA)of 1990 (ADA)
2828

29. ADA Disability Exclusions (1990)ADA Disability Exclusions (1990)
42 U.S.C. 12211(b)42 U.S.C. 12211(b)
2929

30. 3030

31. 3131

32. ““Major Life Activities” in the ADAAAMajor Life Activities” in the ADAAA
3232

33. ADAAA Disability Exclusions (2008)ADAAA Disability Exclusions (2008)
42 U.S.C. 12211(b)(2)42 U.S.C. 12211(b)(2)
3333

34. 3434

35. 76 Fed. Reg. 17001 (Mar. 25, 2011)76 Fed. Reg. 17001 (Mar. 25, 2011)
29 C.F.R. 1630.2 (Definitions)29 C.F.R. 1630.2 (Definitions)
3535

36. Final Regulations Implementing the ADAAAFinal Regulations Implementing the ADAAA
29 C.F.R. 1630.3(d)(2)29 C.F.R. 1630.3(d)(2)
3636

37. 3737

38. 3. Disability Benefit Eligibility3. Disability Benefit Eligibility
3838

39. Disability Benefit LawDisability Benefit Law
PublicPublic: Social Security Disability Insurance (SSDI) Benefits: Social Security Disability Insurance (SSDI) Benefits
PrivatePrivate: Short- and Long-Term Disability Insurance Benefits: Short- and Long-Term Disability Insurance Benefits
3939

40. Johansen v. AstrueJohansen v. Astrue,,
2011 WL 458383 (D. Minn. 2011)2011 WL 458383 (D. Minn. 2011)
This case involved a plaintiff withThis case involved a plaintiff with gambling disordergambling disorder,,
chemical dependency, major depression, and other healthchemical dependency, major depression, and other health
conditions who applied for and was denied Social Securityconditions who applied for and was denied Social Security
Disability Insurance (SSDI) benefits.Disability Insurance (SSDI) benefits.
The court agreed with the denial, reasoning that theThe court agreed with the denial, reasoning that the
plaintiff “plaintiff “could perform other work that exists incould perform other work that exists in
significant numbers in the economy.significant numbers in the economy.””
4040

41. Reilly v. Northwestern Mutual Life Ins. CoReilly v. Northwestern Mutual Life Ins. Co.,.,
2007 WL 1485103 (S.D. Iowa)2007 WL 1485103 (S.D. Iowa)
 The plaintiff, an attorney who hadThe plaintiff, an attorney who had gambling disordergambling disorder and whoand who
lost his license to practice law due to the misappropriation oflost his license to practice law due to the misappropriation of
$90,000 in client trust fund account dollars, applied for private$90,000 in client trust fund account dollars, applied for private
monthly disability insurance benefits from the defendant, hismonthly disability insurance benefits from the defendant, his
disability insurer.disability insurer.
 The court denied the disability benefits, stating that “commonThe court denied the disability benefits, stating that “common
sense supports defendant's factual contentionsense supports defendant's factual contention that plaintiff wasthat plaintiff was
not disabled by the gambling addictionnot disabled by the gambling addiction, only by the license, only by the license
revocation. Plaintiff would still be practicing law,revocation. Plaintiff would still be practicing law,
notwithstanding his excessive gambling, except for his wrongfulnotwithstanding his excessive gambling, except for his wrongful
conversion of client funds.”conversion of client funds.”
4141

42. 4. Administrative Law –4. Administrative Law –
Professional DisciplineProfessional Discipline

43. Iowa Sup. Ct. v. ReillyIowa Sup. Ct. v. Reilly (Iowa 2006)(Iowa 2006)
4343

44. Iowa Sup. Ct. v. ReillyIowa Sup. Ct. v. Reilly (Iowa 2006)(Iowa 2006)
(using the word “(using the word “habithabit””))
4444

45. State Bar of Nevada v. Douglas C. CrawfordState Bar of Nevada v. Douglas C. Crawford,,
(S. Nev. Disc. Bd., Apr. 24, 2008)(S. Nev. Disc. Bd., Apr. 24, 2008)
(using the phrase “character weakness”)(using the phrase “character weakness”)
4545

46. State Bar of Nevada v. Douglas C. CrawfordState Bar of Nevada v. Douglas C. Crawford,,
(S. Nev. Disc. Bd., Apr. 24, 2008)(S. Nev. Disc. Bd., Apr. 24, 2008)
(using the words “terrible and despicable”)(using the words “terrible and despicable”)
4646

47. State Bar of Nevada v. Douglas C. CrawfordState Bar of Nevada v. Douglas C. Crawford,,
(S. Nev. Disc. Bd., Apr. 24, 2008)(S. Nev. Disc. Bd., Apr. 24, 2008)
(using the phrase “black stain”)(using the phrase “black stain”)
4747

48. License Reinstatement RequirementsLicense Reinstatement Requirements
See, e.g.See, e.g., La. Sup. Ct. R. XIX § 24(E) (2015), La. Sup. Ct. R. XIX § 24(E) (2015)
(using the word “remove”)(using the word “remove”)
 ““If the lawyer was suffering under a physical orIf the lawyer was suffering under a physical or
mental disability or infirmity at the time ofmental disability or infirmity at the time of
suspension or disbarment, the disability orsuspension or disbarment, the disability or
infirmity has beeninfirmity has been removedremoved.”.”
4848

49. License Reinstatement RequirementsLicense Reinstatement Requirements
See, e.g.,See, e.g., State Bar of Nevada v. Douglas C. CrawfordState Bar of Nevada v. Douglas C. Crawford,,
(S. Nev. Disc. Bd., Apr. 24, 2008)(S. Nev. Disc. Bd., Apr. 24, 2008)
(using the word “cure”)(using the word “cure”)
4949

50. License Reinstatement RequirementsLicense Reinstatement Requirements
See, e.g.See, e.g., La. Sup. Ct. R. XIX § 24(E) (2015), La. Sup. Ct. R. XIX § 24(E) (2015)
 WhereWhere alcohol or other drugalcohol or other drug abuse was a causative factorabuse was a causative factor
in the lawyer's misconduct, the lawyer shall not bein the lawyer's misconduct, the lawyer shall not be
reinstated or readmitted unless:reinstated or readmitted unless:

(a) the lawyer has pursued appropriate rehabilitative(a) the lawyer has pursued appropriate rehabilitative
treatment;treatment;

(b) the lawyer has abstained from the use of alcohol(b) the lawyer has abstained from the use of alcohol
or other drugs for at least one year; andor other drugs for at least one year; and

(c) the lawyer is likely to continue to abstain from(c) the lawyer is likely to continue to abstain from
alcohol or other drugs.alcohol or other drugs. 5050

51. 5. Criminal Law – Treatment Diversion5. Criminal Law – Treatment Diversion
5151

52. EligibilityEligibility
Nev. Rev. Stat. 458A.210Nev. Rev. Stat. 458A.210
 ““[A] problem gambler who has been convicted of a[A] problem gambler who has been convicted of a
crime andcrime and who committed the crime in furtherance orwho committed the crime in furtherance or
as a result of problem gamblingas a result of problem gambling isis eligible to elect to beeligible to elect to be
assigned by the court to a program for the treatment ofassigned by the court to a program for the treatment of
problem gamblingproblem gambling before he or she is sentenced unlessbefore he or she is sentenced unless
the crime is …the crime is …

(a) A crime against the person punishable as a felony or gross (a) A crime against the person punishable as a felony or gross
misdemeanor . . .misdemeanor . . .

(b) A crime against a child . . . (b) A crime against a child . . .

(c) A sexual offense . . . (c) A sexual offense . . .

(d) An act which constitutes domestic violence . . . ” (d) An act which constitutes domestic violence . . . ”
5252

53. HearingHearing
Nev. Rev. Stat. 458A.220(1)Nev. Rev. Stat. 458A.220(1)
 ““[T]he court shall hold a[T]he court shall hold a hearinghearing before itbefore it
sentences the person to determine whether orsentences the person to determine whether or
not the person committed the crime innot the person committed the crime in
furtherance or as a result of problem gamblingfurtherance or as a result of problem gambling
and whether or not the person should receiveand whether or not the person should receive
treatment under the supervision of a qualifiedtreatment under the supervision of a qualified
mental health professional.”mental health professional.”
5353

54. RequirementsRequirements
Nev. Rev. Stat. 458A.220(2)Nev. Rev. Stat. 458A.220(2)
 The person must be accepted into a program for theThe person must be accepted into a program for the
treatment of problem gambling.treatment of problem gambling.
 The court may impose conditions on the person’sThe court may impose conditions on the person’s
diversion to treatment.diversion to treatment.
 The person must be placed under the supervision of aThe person must be placed under the supervision of a
qualified mental health professional for a period of notqualified mental health professional for a period of not
less than one (1) year and not more than three (3) years.less than one (1) year and not more than three (3) years.
5454

55. RequirementsRequirements
Nev. Rev. Stat. 458A.220(2)Nev. Rev. Stat. 458A.220(2)
 During treatment, the person may be confinedDuring treatment, the person may be confined
in an institution or, at the discretion of thein an institution or, at the discretion of the
qualified mental health professional, released forqualified mental health professional, released for
treatment or supervised care in the community.treatment or supervised care in the community.
 The person must agree to pay restitution as aThe person must agree to pay restitution as a
condition upon the election of treatment.condition upon the election of treatment.
5555

56. Definition of Qualified Mental Health ProfessionalDefinition of Qualified Mental Health Professional
Nev. Rev. Stat. 458A.057Nev. Rev. Stat. 458A.057
 A certified problem gambling counselorA certified problem gambling counselor
 A licensed physicianA licensed physician
 A licensed nurse authorized to counsel problemA licensed nurse authorized to counsel problem
gamblersgamblers
 A licensed psychologistA licensed psychologist
 A licensed professional counselorA licensed professional counselor
 A marriage and family therapist authorized to counselA marriage and family therapist authorized to counsel
problem gamblersproblem gamblers
 A licensed clinical social worker authorized to counselA licensed clinical social worker authorized to counsel
problem gamblersproblem gamblers
5656

57. Conviction Set AsideConviction Set Aside
Nev. Rev. Stat. 458A.240(1)Nev. Rev. Stat. 458A.240(1)
 ““[T]he[T]he person’s sentencing must be deferred andperson’s sentencing must be deferred and
… the person’s conviction must be set aside… the person’s conviction must be set aside ifif
the qualified mental health professional certifiesthe qualified mental health professional certifies
to the court that the person has satisfactorilyto the court that the person has satisfactorily
completed the program of treatment and thecompleted the program of treatment and the
court approves the certification and determinescourt approves the certification and determines
that the conditions upon the election ofthat the conditions upon the election of
treatment have been satisfied.”treatment have been satisfied.”
5757

58. Stacey TovinoStacey Tovino
William S. Boyd School of LawWilliam S. Boyd School of Law
University of Nevada, Las VegasUniversity of Nevada, Las Vegas
4505 S. Maryland Parkway, Box 10034505 S. Maryland Parkway, Box 1003
Las Vegas, Nevada 89154Las Vegas, Nevada 89154
Stacey.Tovino@unlv.eduStacey.Tovino@unlv.edu
1-832-289-63131-832-289-6313
5858