By Lloyd Sederer
August 11, 2015
There has been little sign of life since the 1960s when it comes to legislation aimed at improving the mental health and addiction services in this country.
In 1963, Congress passed President John F. Kennedy's Community Mental Health Act. Then a few years later, Medicaid and Medicare provided revenue to pay for the community services envisioned. Then, Rip Van Winkle?
It's as if Congress went to sleep for 50 years on mental health issues. But the nightmares woke us all up: Newtown, Aurora, Tucson, Lafayette, Isla Vista, Virginia Tech, Columbine and too many others.
While gun control remains stalled, we arewitnessing a surge in legislation that could improve the lives of people with serious mental illness, their families and even the safety of our communities.
Last week, after months of town meetings in a host of states, Sens. Christopher Murphy, D-Conn., and Bill Cassidy, R-La., introduced the Mental Health Reform Act of 2015. This bipartisan bill in the Senate is comprehensive, groundbreaking and harmonizes well with activity in the House.
In June, Reps. Tim Murphy, R-Pa., and Eddie Bernice Johnson, D-Texas (a nurse and a new ally in this now clearly bipartisan effort) reintroduced what Rep. Murphy had started previously, namely the Helping Families in Mental Health Crisis Act (H.R. 2646). Murphy has been indefatigable and ubiquitous in his forceful advocacy for the bill, which will surely be buoyed by efforts in the Senate.
The House and Senate bills include many provisions for change. They share significant common ground in major ways, including "integrating health and mental health" (identifying and treating very common mental and substance disorders in general medical practices); appropriating more money for early intervention programs for youth and adolescents with serious emotional problems and mental illnesses; and incentivizing evidence-based practices.
Integrating care, early intervention and evidence-based care have widespread popular support and a robust science base. We need these, and we need to substantially amplify their provision.
But then, of course, there's politics.
The two bills in the House and Senate also share politically contentious proposals. They include the use of additional Medicaid funds to support the creation of more inpatient beds; efforts to help families break through Health Insurance Portability and Accountability Act, or HIPAA, provisions that too often keep them in the dark about their loved ones' treatment and care; the creation of a new post, assistant secretary for mental health and substance use disorders in the Department of Health and Human Services (a presidential appointment); and capacity-building for involuntary outpatient commitment, or assisted outpatient treatment.
Medicaid funds for inpatient beds. Medicaid has never paid for inpatient treatment in psychiatric hospitals for adults 18 to 65. (Youth and seniors are covered in other ways.) Medicaid is a major payer for these services today – and general hospitals (which can bill Medicaid) have not been keen to increase the number of psychiatric beds they supply.
The result is that in many areas of the country, access to inpatient care for states of acute mental illness is limited.
We read about harrowing events, like the experience of Virginia state Sen. Creigh Deeds, that shake us up. (Deeds was almost killed by his son Gus, who then killed himself, after the hospital could not find Gus a bed.) Yet, mental health advocates have fought this Medicaid payment extension for decades, fearing that more hospital capacity will mean more involuntary treatment and less money for community services. They still hold tenaciously to this view.
HIPAA provisions. The bills' HIPAA provisions also stir opposition. The legislation aims to crack through such provisions that too often keep families in the dark about essential care and treatment of their loved ones. Yet the right to privacy in this country is tantamount to a sacred covenant.
Technology has the extraordinary capacity to gather and disseminate information, which worries many, but activities that may invade privacy to protect national security are different from those dealing with health information – especially access for families, which is what both bills aim to increase.
Families are the most enduring supporters of people with serious mental illness, and yet, are systematically excluded from information and participation. But here too, opponents to expanding access to health information, even to families, are vocal and vociferous.
New HHS assistant secretary for mental health. More contentious is the creation of a Health and Human Services post for a national leader on mental health and substance use policy and practices, appointed by the president.
Today, these services are the domain of the Substance Abuse and Mental Health Services Administration, or SAMHSA, a federal agency within HHS. Rep. Murphy contends it has not properly focused on the most seriously mentally ill, nor pressed for evidence-based care, and lacks doctoral-level clinicians in its leadership.
His bill would make SAMHSA subordinate to an HHS assistant secretary for mental health. But SAMHSA has many friends and advocates who will resist its being diminished.
Assisted outpatient treatment. The issue of assisted outpatient treatment, included in the bills, is also fiercely debated. When an adult with a serious mental illness is considered at risk to harm themselves or others, and has had a history of not complying with treatment, a judge may order assisted outpatient treatment on behalf of doctors, family, parole officers or specified others.
An order requires the patient to follow a specific treatment plan or be picked up by a correctional officer and brought to an emergency room.
While evidence is strong it works, “assisted” equates with “involuntary” treatment. No personal right seems to stir in Americans as much fire (and smoke) as liberty. And no matter how many tales are told of people dying with their rights on, liberty rights are even more ferociously defended than those involving privacy. The greatest resistance to both these bills may center on assisted outpatient treatment, no matter how qualified the bills are in their language about its proposed use.
But the House and Senate bills aren't the only pieces of mental health legislation to have recently emerged.
Out of the current summer crop of bills comes Texas Sen. and Majority Whip John Cornyn's NRA-supported background check bill – which aims to have states provide more information for national background checks for firearm purchases (as well as provisions seeking to make mental health treatment more accessible) – and Democratic New York Sen. Chuck Schumer's proposal for legislation, with the support of his cousin, comedian Amy Schumer, to enhance background checks.
All this focus and attention is good and likely necessary to move what has been near federal paralysis on mental health care reform. The mantra, well-known, is that the mental health care system is broken.
The human and economic costs of not effectively treating mental and addictive disorders is massive. Yet those indisputable facts have not been enough to ignite federal action (though states and local municipalities and counties have done a lot).
But political tension – especially when privacy, liberty, power and money are at stake – has atomic power, and not the constructive sort.
A saying often attributed to Winston Churchill goes, "You will never reach your destination if you stop and throw stones at every dog that barks." There is no such thing as perfect legislation. Good government is the art of negotiation and compromise – in the interest of its constituents.
The months ahead will reveal more about the awakening of mental health legislative activity in Congress. Let's send them a carafe of coffee, and hope for the best.