Spotlight on Sections: Law and Mental Disability

AALS sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each section is focused on a different academic discipline, affinity group, or administrative area. For a full list of sections and information on how to join, visit www.aals.org/sections.

As part of the ongoing “Spotlight on Sections” series, AALS sat down with the leadership of the Section on Sexual Orientation and Gender Identity Issues and the Section on Law and Mental Disability. Views expressed by interviewees are not necessarily representative of AALS or their home institutions.

By Zaena Ballon

The Section on Law and Mental Disability promotes and stimulates ideas, interest, and activities on the subject matter broadly denominated “Law and Psychiatry.”

Chair: Stacey Tovino, University of Oklahoma College of Law
Past Chair: Laura Hoffman, Cleveland State University College of Law

Why did you join the Section on Law and Mental Disability?

Laura Hoffman: As a person with a disability, it is very important to me that all disabilities receive representation. Traditionally, we have seen stigmas associated with mental disabilities, and it is critical to bring attention to this particular group of disabilities which has seen a slower increase in legal protections. Given the development of the mental health needs and crisis even before the pandemic, now more than ever, the timing has seemed ideal to ensure that this particular group of people with disabilities is given the attention it really needs.

Stacey Tovino: As a person who represented individuals with mental disabilities throughout her health law practice, it is very important to me that individuals with disabilities—physical and mental—have adequate legal representation and that they are aware of available legal rights, benefits, and privileges. One way we can ensure that individuals with disabilities have adequate representation in the future is by teaching podium courses such as Disability Law and Mental Health Law at US law schools, as well as by representing clients with disabilities in the clinical legal setting, exposing law students to the doctrine of disability law and mental health law. I joined the Section on Law and Mental Disability to stay abreast of all the latest changes in disability law, mental health law, and related areas, and to be able to pass that information on to my students, including through the Mental Health Law course I teach each year at my law school.

Why did you decide to join the leadership?

LH: Again, going to stigma, there is a hesitancy to some extent for people to want to step up in this area and to my knowledge, there has been a very small group of law professors with this particular focus. As a person with disabilities myself including both physical (visual impairment) and mental (generalized anxiety), I feel that one of the best ways to bring visibility is by having vulnerability and putting myself in a position to be an example. I hope this will encourage others to take on leadership roles in the future with our section.

ST: I have been inspired by so many prior Chairs of this section including, but certainly not limited to, Jennifer S. Bard (University of Cincinnati College of Law), Jennifer D. Oliva (Indiana University Maurer School of Law), and Kelly Gillespie (Saint Louis University School of Law), for their work in promoting the research and other accomplishments of Section members. I have benefitted so much from being a member of this section that I wanted to give back through a year of leadership.

What is the section’s leadership structure?

ST: We have three officers, including the two of us and Secretary Amy Campbell (University of Illinois Chicago School of Law). Pursuant to Article III, Section 2, of our Section Bylaws, the Executive Committee is composed of the officers (i.e., the same three people).

What do your members research and teach?

ST: In addition to a wide variety of first year and Bar courses, such as Civil Procedure, Constitutional Law, Contracts, Criminal Law, Evidence, Legal Research and Writing, Professional Responsibility, Property, and Torts, most of our members teach and/or write either in one or more of the following areas: health law, disability law, mental health law, law and psychiatry, or law and psychology.

What are the best ways for interested faculty to get involved with this section?

LH: Obviously, taking on a leadership position is a great way to get much more immersed in this section as I have this year. Prior to that, I started attending the Section’s programming during the AALS conference which helped me become more educated regarding issues involving mental health/disability as well as interact with the membership and current leadership of the Section.

What are some important conversations happening right now in legal education regarding mental disability and the law?

LH: I have been part of efforts at my law school that are not specific to mental disability per se but everyone’s well-being through wellness events through our Office of Student Services. I’m also the Faculty Advisor for our First-General Lawyers Organization which is made up of students who are first generation for college, law, or both. The mental health needs for this group can be and often are quite high. Our first group of student leadership definitely prioritized the mental health needs of students in promoting open discussions about these needs in the law school community.

As a law professor, in teaching I do use a mental health pass with my 1L students which I’ve gotten very good feedback about having as an option. Twice during the semester my students can “pass” if called upon due to a bad or challenging mental health day. They may have read the class materials and be “prepared” but for one reason or another, their mental health is not in the greatest place. This allows and encourages students to learn to evaluate their mental health needs and be proactive about recognizing when they need to take a break. My students have been very receptive to this and have praised the practice.

Finally, practicing my own wellness and mental health well-being for my students as a model is really important. Our students observe and digest much more than we realize. This means we provide an important example to them of things like learning to balance professional and personal life for the benefit of our well-being.

An update to the Confidentiality of Substance Use Disorder Patient Records regulations to protect the privacy of people with substance use disorders (SUDs) was implemented earlier this year. What are the privacy benefits of this update?

ST: I actually specialize in patient privacy and health information confidentiality, especially in the context of mental health information, so I appreciate your question. The new, updated 42 C.F.R. Part 2 regulations provide individuals who are diagnosed, treated, or referred for treatment by a Part 2 Program not only with additional privacy and confidentiality rights but also clarifies Part 2 provisions and aligns many of them with the HIPAA Administrative Simplification Provisions.

For example, the updated Part 2 regulations: (1) establish breach notification requirements for individuals with SUDs whose information is the subject of a breach; (2) adds a right for patients to file a complaint directly with the Secretary of the federal Department of Health and Human Services for an alleged violation of Part 2; (3) allows Part 2 patients to sign a single consent for all future uses and disclosures of their information for the activities of treatment, payment, and health care operations (TPO); (4) adds an express statement that segregating or segmenting Part 2 records is not required; (5) aligns Part 2 penalties with the civil and criminal penalties set forth in the HIPAA statute, which used to apply only to HIPAA covered entities and business associates who violated the HIPAA Privacy Rule; (5) creates a new definition for SUD counseling notes that the clinician voluntarily maintains separate and apart from the rest of the patient’s medical records and that requires specific consent from the patient and cannot be used or disclosed based on the broad TPO consent; (6) prohibits combining patient consent for the use and disclosure of records for civil, criminal, administrative, or legislative proceedings with patient consent for any other use or disclosure; and (7) creates a new right for patients to opt out of receiving fundraising communications.

People with mental health disabilities face high rates of incarceration. What are steps governments can take to address the overincarceration of people with mental health disabilities?

ST: One step that prosecutors can take is approving (and not rejecting) the applications of individuals with mental health conditions to enter a relevant diversion court, whether it be a treatment court, a wellness court, a gambling court, or another diversion court. Some behaviors that are criminal in nature are associated with an underlying mental health condition or substance use disorder. Treating that mental health condition or substance use disorder, rather than incarcerating the individual for having the condition or disorder, can help address overincarceration and get to the root of the behavior at the same time.

The pandemic took a toll on people’s mental health due to the increase in social isolation and loneliness, an issue that persists post-pandemic. This increased the need for mental health providers, highlighting a shortage in the profession. What are some ways the state and federal governments can help with this issue?

LH: It’s important to understand that the significant negative impact of loneliness and social isolation on health had been occurring far before the pandemic. The pandemic was merely a lens for grabbing more attention to this. In May 2023, our US Surgeon General, Vivek Murthy released a report on the impact of loneliness and social isolation on health. It was also a call to action which included policymakers to implement efforts to try to tackle these issues given the significant impact on health that research has demonstrated for decades.

Since then, we are starting to see these initial efforts at policymaking including proposed federal legislation to implement a national plan for loneliness and social isolation which would include things like an office at the federal level and a commitment to education and research. There is also proposed federal legislation to streamline research by ensuring that measurements for these issues are the same across the board. There are also federal efforts to focus specifically on the aging population which we know is more impacted by loneliness and social isolation as again was emphasized during the Covid-19-pandemic.

We are also starting to see some activity in legislation going on at the state level. For example, Ohio has focused on the youth population which on the other end of the lifespan also experiences major challenges with these issues. The Ohio law focuses on educating youth about these issues in school by mandating curriculum coverage. New York has also been a leader on the concept of healthy aging and has included loneliness as a part of this by having the first Loneliness Ambassador in the nation. There is also a focus in New York on having a robust mental health system. These are just a few examples of how we are seeing law and policy being used as tools to address loneliness and social isolation in the United States.

At the 2024 AALS Annual Meeting, the section hosted a program about mental health parity laws. What sort of themes did the session address?

ST: This was a wonderful program and I learned so much from the other speakers. Themes addressed by the speakers included developments in both federal and state mental health parity law as well as mandatory mental health and substance use disorder benefit law; the content of state benchmark plans and how the Affordable Care Act relies on those state benchmark plans to help establish the required essential health benefits; insurance coverage of gender-affirming care; and insurance coverage of mental health treatments and services that are not provided in person and, instead, are provided via telehealth.

What is your program at the 2025 AALS Annual Meeting focused on?

LH: As the Program Chair, I’ve been working to craft our panel this year focusing on the legal responses we are seeing to the mental health crisis across the lifespan. What this means is that we know law and policy can be tools to try to alleviate this persistent and growing crisis, but can and should we use them? What are some current examples we know of? And in looking across the lifespan, how does this crisis look across specific populations which may have very different needs (i.e. youth v. the aging population)? We have assembled a fantastic group of law professors to have an interactive discussion about this and hope it can really open the door to more discussions as the needs of many of these groups for mental health continue to increase.