A Guide to Laws Protecting People with Serious Mental Illness

Last updated 3 months ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

Serious mental illness (SMI) refers to diagnosable conditions that significantly impair your ability to function in major life activities—not just everyday mental health challenges.

How Government Agencies Define SMI

SAMHSA defines SMI in adults as “a diagnosable mental, behavioral or emotional disorder that causes serious functional impairment in major life activities.” For children under 18, they use the term Serious Emotional Disturbance (SED).

In 2022, 6.0% of U.S. adults—approximately 15.4 million people—had serious mental illness according to National Institute of Mental Health (NIMH) data from the National Survey on Drug Use and Health.

Note that SAMHSA’s definition excludes developmental and substance use disorders as the primary condition, though these often occur alongside SMI. This distinction matters because it affects eligibility for certain programs and services.

Common Conditions

Several conditions frequently qualify as SMI when they cause serious functional impairment:

• Schizophrenia and psychotic disorders
• Severe bipolar disorder
• Major depressive disorder (when severe)
• Obsessive-compulsive disorder (when severe)
• Panic disorder
• Post-traumatic stress disorder (PTSD)
• Borderline personality disorder

A diagnosis alone doesn’t qualify as SMI—what matters is how severely the condition impairs your daily functioning.

The Reality of Co-Occurring Disorders

More than 75% of people with SMI have multiple mental health conditions or a mental illness combined with substance use disorder. According to SAMHSA’s 2022 survey, approximately 21.5 million adults have both a mental health disorder and substance use disorder.

This overlap complicates treatment and can affect eligibility for services. Different confidentiality laws—HIPAA for general health information versus the stricter 42 CFR Part 2 for substance abuse treatment—can create barriers to coordinated care.

The high rate of co-occurring disorders means effective laws and services must address mental health and substance use as integrated issues.

Your Rights Under the Americans with Disabilities Act

The ADA is your strongest legal protection against discrimination. This landmark law ensures equal opportunities in employment, government services, and public accommodations.

Who’s Protected?

You’re protected under the ADA if you have:

• A physical or mental impairment that substantially limits major life activities
• A history of such an impairment
• Are perceived as having such an impairment

Mental impairments explicitly include emotional or mental illness. Conditions like depression, bipolar disorder, anxiety, PTSD, and schizophrenia typically qualify because they affect brain function—a major bodily function under the law.

The 2008 ADA Amendments Act clarified that you’re protected based on your underlying condition, not how well you manage it with medication or therapy. This closed a loophole that previously denied protection to people whose conditions were well-controlled.

Employment Rights: Fighting Job Discrimination

Non-Discrimination in the Workplace

Employers with 15 or more employees cannot discriminate in hiring, firing, promotions, pay, or any employment aspect based on your mental health condition. During interviews, they can ask if you can perform essential job functions but cannot ask about your mental health, medication, or treatment history.

Reasonable Accommodations: Your Key to Success

Employers must provide reasonable accommodations—changes that help you do your job—unless they cause “undue hardship.”

Common accommodations include:

Schedule Flexibility

• Flexible start/end times for therapy appointments
• Part-time schedules during difficult periods
• Compressed work weeks
• Regular breaks for medication or stress management

Work Environment Changes

• Quiet workspace or noise-canceling headphones
• Private office or higher cubicle walls
• Relocated workspace away from triggers
• Adjusted lighting or temperature controls

Communication Support

• Written instructions instead of just verbal
• Email follow-ups for important conversations
• Regular supervisor check-ins
• Smaller meeting formats for social anxiety

Leave Options

• Mental health days during symptom flares
• Extended lunch breaks for therapy
• Unpaid leave during crisis periods
• Time off for treatment without using sick leave

Getting Accommodations

Tell your employer you need an accommodation for a medical condition, without revealing your diagnosis or using legal terminology. For example: “I have a medical condition that makes it hard to concentrate in noisy environments. Could I move to a quieter workspace?”

If your need isn’t obvious, employers can request documentation from a healthcare provider verifying you have a disability and need the accommodation. They cannot demand your medical records or specific diagnosis.

Filing Employment Complaints

If you face job discrimination, file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days (300 days in some states). The EEOC investigates and can sue employers on your behalf.

In 2016, the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million. Mental health-based discrimination charges have continued to rise, increasing from 20% of all disability discrimination complaints in 2010 to 30% in 2021.

Government Services: Equal Access for All

State and Local Government (Title II)

All state and local government services—from public transportation to courts to schools—must be accessible. They must make reasonable modifications to policies and ensure effective communication.

For mental health, this is especially important in law enforcement. Police departments must:

• Train officers to recognize mental health crises
• Use de-escalation techniques
• Deploy crisis intervention teams when available
• Avoid unnecessary force for disability-related behaviors

The Olmstead Decision: Community Integration

The Supreme Court’s Olmstead ruling established that unnecessary segregation of people with mental illness violates the ADA. You have the right to receive services in the most integrated community setting appropriate for your needs.

This decision transformed mental health care, pushing states to develop community-based services instead of relying on institutional care.

Public Accommodations (Title III)

Private businesses open to the public—restaurants, stores, hotels, doctor’s offices—must be accessible and cannot discriminate. They must make reasonable policy modifications, such as allowing service animals in “no pets” establishments.

Filing Complaints

Report discrimination by government entities or public accommodations to the Department of Justice.

Privacy Protection Under HIPAA

HIPAA’s Privacy Rule protects your mental health information, giving you control over who sees it and when.

What HIPAA Protects

Protected Health Information (PHI) includes:

• Diagnoses and treatment notes
• Medication records and prescriptions
• Billing information for mental health services
• Communications with mental health professionals
• Any information about your past, present, or future mental health care

Special Protection for Therapy Notes

Psychotherapy notes receive extra protection. These are your therapist’s personal observations and insights from sessions, separate from your general medical record.

Unlike other medical records, providers need your specific written authorization to share psychotherapy notes with anyone—even other healthcare providers. This encourages honest communication in therapy by ensuring your deepest conversations remain private.

Regular medical records (diagnoses, treatment plans, session dates) don’t get this extra protection and can be shared for treatment, payment, and healthcare operations.

When Information Can Be Shared

With Your Permission Your information cannot be shared without your written authorization, except for treatment, payment, and healthcare operations.

With Family and Friends If you’re present and capable:

• Providers can share information if you agree
• They can share if you don’t object when given the chance
• They can reasonably infer you don’t object (like when family accompanies you to appointments)

If you’re not present or incapacitated:

• Providers can share information they believe is in your best interests
• Family can always share information with providers (though providers can’t always share back)

Emergency Situations HIPAA allows sharing information without permission to prevent serious threats to health or safety. This includes warning specific people about credible threats or reporting child abuse.

Your Rights

• Access: Get copies of your medical records (except most psychotherapy notes)
• Amendment: Request corrections to inaccurate information
• Accounting: See who accessed your records and why
• Restrictions: Ask providers to limit how they use your information
• Confidential Communication: Request specific communication methods (like calling your cell phone instead of home)

Filing HIPAA Complaints

Report privacy violations to the Department of Health and Human Services Office for Civil Rights.

Fair Insurance Coverage Under Mental Health Parity Laws

The Mental Health Parity and Addiction Equity Act (MHPAEA) requires insurance plans that cover mental health to treat it equally with physical health care.

What Parity Means

If your insurance covers mental health, the financial requirements (copays, deductibles) and treatment limitations cannot be more restrictive than for medical care.

Financial Parity

• Copays for therapy visits should match medical specialist visits
• Deductibles for mental health care can’t be higher than for physical health
• Out-of-pocket maximums must be the same

Treatment Limitations Plans track two types of limitations:

Quantitative Limits: Number-based restrictions like visit limits or dollar caps. If your plan doesn’t limit medical visits, it generally can’t limit therapy sessions either.

Non-Quantitative Limits: Policy restrictions like:

• Prior authorization requirements
• Medical necessity criteria
• Step therapy (trying cheaper treatments first)
• Provider network standards
• Exclusions for specific treatments

These non-quantitative limits are often where discrimination hides. A plan might have easy prior authorization for medical care but complex, time-consuming processes for mental health care.

Recent Strengthening of Parity Laws

New rules effective January 2025 significantly strengthen parity protections:

Meaningful Benefits: Plans must offer substantial mental health coverage, not just token benefits.

Outcomes Analysis: Insurers must analyze whether their policies create barriers to mental health care (like higher denial rates or inadequate provider networks) and fix any problems they find.

Enhanced Documentation: Plans must document how they apply limitations and prove they treat mental health fairly compared to physical health.

Filing Parity Complaints

For employer plans: Contact the Department of Labor at 1-866-444-3272

For individual/government plans: Email [email protected] or call 1-877-267-2323, ext. 6-1565

For state-regulated plans: Contact your state’s Department of Insurance

Affordable Care Act Expansion

The ACA made mental health an “essential health benefit” that most plans must cover. Key protections include:

• No denying coverage for pre-existing mental health conditions
• No annual or lifetime limits on mental health benefits
• Mental health parity requirements for all marketplace plans

Financial Support Through Disability Benefits

Social Security offers two disability programs that can provide crucial financial support: SSDI and SSI.

Qualifying for Disability

The Social Security Administration uses a strict definition: You must be unable to perform any substantial gainful activity due to a medical condition lasting or expected to last at least 12 months.

Having an SMI diagnosis isn’t enough—you must prove the condition prevents you from working. This requires extensive medical documentation and often takes multiple attempts.

SSDI vs. SSI

Social Security Disability Insurance (SSDI)

• Based on your work history and Social Security contributions
• Requires sufficient work credits
• Not means-tested (no income/asset limits)
• Leads to Medicare after 24 months
• Generally higher benefit amounts

Supplemental Security Income (SSI)

• Based on financial need
• No work history required
• Strict income and asset limits
• Often leads to automatic Medicaid
• Lower benefit amounts
• Resource limit of $2,000 for individuals

Some people qualify for both programs if their SSDI amount is very low.

The Evaluation Process

Social Security uses a five-step evaluation:

1. Are you working? Earning over $1,620 monthly (2025 limit) usually disqualifies you
2. Is your condition severe? Must significantly limit work-related activities
3. Does it meet a listing? Section 12.00 covers mental disorders with specific criteria
4. Can you do past work? Assessment of your residual functional capacity
5. Can you do other work? Considering age, education, and experience

Mental Disorder Listings

The Blue Book’s Section 12.00 outlines criteria for various mental disorders. To qualify, you typically need:

Paragraph A: Medical documentation of the disorder (specific symptoms)

Paragraph B: Functional limitations in areas like:

• Understanding, remembering, applying information
• Interacting with others
• Concentrating, persisting, maintaining pace
• Adapting or managing yourself

You need extreme limitation in one area or marked limitations in two areas.

Paragraph C: Alternative criteria for serious and persistent disorders showing marginal adjustment despite treatment

The Application Process

How to Apply

• Online at SSA.gov
• By phone: 1-800-772-1213
• In person at local Social Security office

What You’ll Need

• Comprehensive medical records
• Contact information for all healthcare providers
• Medication lists
• Work history
• Education information

The process often takes months and has a high initial denial rate. Many people need to appeal through multiple levels, including hearings before Administrative Law Judges.

Support Programs

The complexity of applying for disability benefits while managing SMI symptoms creates significant barriers. For detailed information, visit SSA’s disability website and the Blue Book.

Workplace Leave Under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides job-protected, unpaid leave for serious health conditions, including mental health conditions.

FMLA Leave for Mental Health

Your Own Condition You can take up to 12 weeks of unpaid leave per year for your serious mental health condition. This includes:

• Acute episodes preventing work
• Inpatient psychiatric care
• Outpatient treatment and therapy
• Recovery periods

Family Member’s Condition
You can also take leave to care for a spouse, child, or parent with a serious mental health condition. “Care” includes:

• Providing psychological comfort
• Transporting to appointments
• Participating in treatment planning
• Helping with daily needs during incapacity

Flexible Leave Options

FMLA leave doesn’t have to be continuous. You can take:

• Intermittent leave: Days off during difficult periods
• Reduced schedule: Working part-time temporarily

This flexibility is especially valuable for managing episodic conditions like bipolar disorder or recurring depression.

Eligibility Requirements

Employee eligibility:

• Worked for employer at least 12 months
• Worked at least 1,250 hours in the past year
• Work at location with 50+ employees within 75 miles

Covered employers:

• Private employers with 50+ employees
• All public agencies
• Public and private elementary/secondary schools

Serious Health Condition Defined

For FMLA purposes, a serious health condition includes:

• Inpatient care (hospital stays)
• Continuing treatment requiring multiple healthcare visits
• Chronic conditions needing regular treatment

Many SMIs qualify due to their need for ongoing treatment and potential for causing incapacity.

Medical Certification

Employers can require medical certification including:

• When the condition started
• Probable duration
• How it affects your ability to work
• Need for intermittent leave if applicable

Use forms WH-380-E (for your condition) or WH-380-F (for family member’s condition) from the Department of Labor.

Recent Advances: The 21st Century Cures Act

The 21st Century Cures Act of 2016 brought significant mental health reforms, improving research, treatment access, and federal coordination.

Key Mental Health Provisions

Federal Coordination The Act established the Interdepartmental Serious Mental Illness Coordinating Committee (ISMICC) to coordinate federal efforts and report to Congress on SMI and SED issues.

Crisis Response Funding Provided resources for:

• Crisis intervention programs
• Suicide prevention efforts
• Community-based alternatives to incarceration

Research and Innovation Created the National Mental Health and Substance Use Policy Laboratory within SAMHSA to promote evidence-based practices.

Information Sharing Improvements

Access to Health Information The Cures Act promotes patient access to electronic health information while maintaining privacy protections under HIPAA and 42 CFR Part 2.

HIPAA Clarifications The Act directed HHS to clarify when providers can share information with family members and caregivers, especially during mental health crises. This addressed confusion that sometimes prevented necessary communication during emergencies.

Strengthening Mental Health Parity

The Act directed federal agencies to provide clearer guidance on parity compliance and strengthen enforcement mechanisms, leading to the enhanced parity rules implemented in 2024-2025.

Crisis Situations and Treatment Decisions

Some of the most challenging legal issues involve crisis situations when people may be unable to make decisions for themselves.

Involuntary Commitment

Involuntary commitment is the court-ordered psychiatric treatment of someone deemed unable to make treatment decisions and who poses a danger to themselves or others, or is “gravely disabled.”

Common Criteria While varying by state, typical requirements include:

• Presence of severe mental illness
• Danger to self or others, or grave disability
• Unable to make informed treatment decisions
• Likely to benefit from treatment
• No less restrictive alternative available

Your Rights During Commitment

• Right to legal counsel (often court-appointed)
• Right to court hearings
• Right to be informed of reasons for commitment
• Right to humane treatment
• Right to least restrictive setting
• Limited right to refuse treatment
• Right to communication with family and counsel

Process

1. Emergency petition (family, law enforcement, mental health professionals)
2. Emergency evaluation (24-72 hours typically)
3. Court hearing if longer commitment sought
4. Periodic review of continued need

Assisted Outpatient Treatment (AOT)

AOT is court-ordered community treatment for individuals with a history of treatment non-compliance leading to repeated hospitalizations or arrests.

Typical Eligibility

• Adult with severe mental illness
• History of treatment non-compliance
• Multiple hospitalizations or arrests
• Unlikely to survive safely without supervision
• Likely to benefit from AOT

AOT programs provide intensive community services including case management, medication monitoring, and crisis support. They’re intended as less restrictive alternatives to hospitalization.

Guardianship and Conservatorship

Guardianship is a legal process where a court determines someone lacks capacity to make decisions and appoints another person to make decisions for them.

Types of Guardianship

• Guardian of Person: Makes personal and healthcare decisions
• Guardian of Estate: Manages financial affairs
• Limited Guardianship: Restricted to specific areas of incapacity

Guardianship should be a last resort when less restrictive alternatives like psychiatric advance directives or support decision-making aren’t sufficient.

Psychiatric Advance Directives

Psychiatric Advance Directives (PADs) allow you to express treatment preferences and appoint a healthcare agent for future mental health crises when you may lack decision-making capacity.

Components

• Treatment preferences (medications, facilities, procedures to accept/avoid)
• Healthcare agent appointment
• Crisis contact information
• Instructions for managing practical matters

PADs promote autonomy by ensuring your wishes are known and followed during crises. They take effect when you’re determined to lack capacity and become inactive when you regain capacity.

The National Resource Center on Psychiatric Advance Directives provides state-specific forms and information.

Rights in Specific Settings

Psychiatric Hospital Rights

Patients in psychiatric facilities retain fundamental rights:

Treatment Rights

• Appropriate, individualized treatment
• Least restrictive environment
• Freedom from unnecessary restraint/seclusion
• Informed consent (with limitations for involuntary patients)

Personal Rights

• Dignity and respect
• Communication with family and counsel
• Personal possessions (when safe)
• Confidentiality
• Freedom from abuse and neglect

Procedural Rights

• Access to patient advocates
• Right to file grievances
• Participation in treatment planning
• Discharge planning involvement

Many states have Patient Rights Advocacy programs to help patients understand and assert these rights.

Voting Rights

Mental illness doesn’t automatically disqualify you from voting. Federal laws protect the voting rights of people with mental disabilities.

Key Protections

• ADA prohibits discrimination in voting
• Can’t be categorically disqualified based on mental illness or guardianship
• Right to voting assistance if needed
• Right to accessible voting systems
• Right to provisional ballot if eligibility questioned

If you understand what it means to vote and can express a choice, federal law protects your right to vote.

Housing Rights

The Fair Housing Act prohibits housing discrimination based on mental health disabilities.

Key Protections

• Can’t refuse to rent/sell based on mental health
• Can’t charge higher rent or deposits
• Can’t ask about mental health during application
• Can’t evict for disability-related behaviors (unless you pose direct threat)

Reasonable Accommodations Housing providers must make reasonable accommodations such as:

• Allowing emotional support animals in “no pets” buildings
• Providing reserved accessible parking
• Modifying payment schedules to align with disability income
• Allowing live-in support persons

Reasonable Modifications Tenants can make necessary structural changes at their own expense (at provider’s expense in federally subsidized housing).

File housing discrimination complaints with HUD at 1-800-669-9777.

Law Enforcement and Crisis Response

Crisis Intervention Teams (CIT)

CIT programs train police officers to respond effectively to mental health crises, emphasizing de-escalation and connection to treatment rather than arrest.

Core Elements

• Community collaboration between law enforcement, mental health providers, families, and advocates
• Specialized 40-hour training for volunteer officers
• Responsive mental health crisis system
• Policies prioritizing CIT officer dispatch to mental health calls

CIT aims to improve safety, reduce use of force, and divert people from jail to appropriate treatment.

Mental Health Courts

Mental Health Courts offer treatment-focused alternatives to traditional prosecution for people with mental illness whose condition contributed to their alleged crime.

How They Work

• Voluntary participation with consent
• Team-based approach (judge, prosecutor, defense, mental health providers)
• Intensive supervision and treatment
• Regular court appearances to monitor progress

While potentially helpful, mental health courts raise concerns about net-widening (bringing more people into the system), coercion, and diverting resources from community services that could prevent arrests.

Legal and Advocacy Resources

National Organizations

Bazelon Center for Mental Health Law The Bazelon Center is the premier legal advocacy organization for people with mental disabilities. They engage in impact litigation, policy advocacy, and provide technical assistance.

National Alliance on Mental Illness (NAMI) NAMI provides support groups, education, and advocacy. Local chapters offer community resources and peer support.

Mental Health America MHA offers screening tools, educational resources, and policy advocacy.

Protection and Advocacy (P&A) Organizations Each state has a federally funded P&A agency providing free legal services for people with disabilities. Find yours through the National Disability Rights Network.

Crisis Resources

988 Suicide & Crisis Lifeline: Call or text 988 for free, 24/7 crisis support

Crisis Text Line: Text HOME to 741741

SAMHSA National Helpline: 1-800-662-4357 for treatment referrals and information

Quick Reference Guide

Know Your Rights, Use Your Rights

These laws provide powerful protections, but they only work if you use them. Don’t accept discrimination—file complaints when your rights are violated. Seek accommodations when you need them. Connect with advocacy organizations for support and guidance.

Your mental health condition doesn’t limit your rights—discrimination does. These laws exist to ensure you can work, learn, live, and participate fully in your community.

You don’t have to navigate these systems alone. Federal agencies, advocacy organizations, and local disability rights groups can help you understand and enforce your rights.

Understanding these laws empowers you to advocate for yourself and others. Every person who stands up for their rights makes it easier for the next person facing similar challenges. Your advocacy matters—not just for you, but for everyone who will walk this path in the future.

Our articles make government information more accessible. Please consult a qualified professional for financial, legal, or health advice specific to your circumstances.