By Nina Flanagan
January 11, 2016
After President Obama announced his executive orders on gun control last week, the majority of mental health advocates applauded the proposed $500 million infusion of federal funds into mental healthcare. However, many raised concerns over the president’s directives to make the Social Security Administration’s (SSA) records of certain individuals with mental health issues available for federal background checks as well as the proposed changes to HIPAA in terms of how it applies to state reporting to the federal system. Additional medical entities with mental health records will also be allowed to release information for gun background checks.
A question of money
Historically, funding for mental and behavioral health services tends to be cut during tough financial times. Massive funding cuts for such services at the state level from 2009 to 2011 reached $4 billion, and, according to Forbes, was “the largest single combined reduction to mental health spending since deinstitutionalization in the 1970s.” Chicago was hit especially hard when state budget cuts forced the city to shutter half of its mental health clinics. A 2015 report by the National Alliance on Mental Illness (NAMI) shows 23 states were willing to increase mental health spending last year, but the majority kept their funding levels static or made cuts. NAMI Executive Director Mary Gilibert said in a press release, “The bad news is that fewer states are strengthening investment in mental healthcare and Congress has only recently started to act after having been largely absent for two years.” However, she added the report did show “efforts to improve the lives of people affected by mental illness have continued in 2015,” as exhibited by states enacting specific reforms.
Ron Honberg, national director of policy and legal affairs at NAMI, told Healthcare Dive, “We agree an additional infusion of federal resources is needed and we’re also interested in more details about [these new resource] such as, where would the money go, how would it be spent, etc…I don’t think the lack of access to mental healthcare is going to be simply solved by throwing money at it.” Rep. Tim Murphy (R-PA) agrees and told Roll Call, “There is a big difference between funding ‘mental health programs’ and enacting reforms addressing serious mental illness. More money into our disastrously failed and antiquated system will only result in more lives lost.” Murphy’s bipartisan pending mental health reform bill (H.R. 2646) was approved in November 2015 by a House Energy and Commerce subcommittee and will next be considered by a full committee.
Access in trouble
Access to mental healthcare across the country has been thwarted by a severe shortage of mental health professionals. Dr. Thomas Insel, former director of the National Institute of Mental Health (NIMH), told the Washington Post in October 2015 more than half of U.S. counties have no mental health professionals and “don’t have any access whatsoever.” One could say this represents more than a crisis, considering 43 million Americans had a diagnosable mental disorder last year, with 10 million afflicted with a disabling condition. In addition, HHS estimates 32 million individuals will gain access to behavioral health coverage for the first time by 2020 via Medicaid expansion. “It’s going to be harder for plans to manage the influx of patients needing mental health services because, like primary care providers, there’s a shortage,” Heidi Arndt, senior vice president of Medicaid at Gorman Health Group, told Modern Healthcare.
HIPAA changes clarify FBI data sharing
Support for Obama’s executive actions begins to falter among mental health advocates and providers when it comes to the new provisions regarding the federal background check system. One involves a HIPAA rule change that clarifies who can share data with the FBI’s National Instant Criminal Background Check System (NICS). On Jan. 4, HHS' Office for Civil Rights clarified certain healthcare organizations and state agencies can submit data on individuals who are subject to a federal “mental health prohibitor,” which disqualifies them from possessing a firearm. Individuals who fall under this category (issued by the Department of Justice under the Gun Control Act of 1968), include those:
•incompetent to stand trial or not guilty by reason of insanity;
•Determined by a court, board, commission or other lawful authority to be a danger to themselves or others; or
•Lacking the mental capacity to contract or manage their own affairs.
The rule specifically prohibits the disclosure of diagnostic or clinical information from medical records or other sources, and any mental health information beyond the indication that the individual is subject to the federal mental health prohibitor. The final rule states only “covered entities with lawful authority to make adjudications or commitment decisions that make individuals subject to the federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, are permitted to disclose the information needed for these purposes.”
Although the new rule doesn’t require providers directly involved in patient care to report to NICS, some, like Dr. Matthew Berger, a psychiatrist at Commonwealth Health in Pennsylvania, fear the sharing of such information is a potential breach of trust. Berger told Scranton, Pennsylvania news station WNEP, “I have some real concerns with that in terms of patients’ rights and the government having a database of mental health patients which we were assured would not be used inappropriately, but it’s very, very private."
However, Pennsylvania already has a state law preventing residents who have been involuntarily committed from possessing guns. Just the same, Berger questions physicians’ role under the new federal guidelines. “Do I have to report everyone I think is a danger to the FBI? That becomes a very slippery slope and a judgment call so I think the devil is going to be in the details here.”
SSA records open for gun background checks
Similar concerns are being raised with the president’s directive to make the Social Security Administration’s (SSA) records of certain individuals with documental mental health issues available to the NICS. This marks the first time the agency would be involved in the background check system. Those who receive supplemental security income (SSI) or social security disability insurance (SSDI) and unable to manage their benefits and have assigned recipient payees would be banned from owning guns. Ron Honberg calls the concept “troubling,” adding, “there’s really no evidence that equates being assigned a temporary or long-term representative payee with a potential increased risk for violence.” NAMI’s position all along, according to Honberg, has been people with mental health issues included in the NICS system should have a connection with a potential risk of violence. “I think when you’re talking about social security or disability, that connection is much more tenuous. We don’t want to reinforce stereotypical perceptions of mental illness equating with violence when we know they’re not necessarily true.”
According to an article in the Los Angeles Times, if the SSA bases their reporting system on the same reporting criteria used by the Department of Veterans Affairs (VA), millions would be affected. The VA’s only criterion for reporting an individual to the system is based on whether that person has been appointed a fiduciary. Dr. Marc Rosen, a Yale psychiatrist told the Los Angeles Times, “Someone can be incapable of managing their funds but not be dangerous, violent, or unsafe. They are very different determinations.”
The VA estimates there are 177, 000 veterans in the NICS system, but more than half are over age 80 and many with dementia. There are currently 2.7 million Americans who receive SSDI for mental health issues and an additional 1.5 million who have their finances handled by others. SSA has not released details of its plan, which will involve a formal and public rulemaking process.
The majority of mental health advocates agree significant reform in how the mental healthcare system works is desperately needed. “We need a system more coordinated, focused on early intervention, and one that takes steps to assertively prevent people from being hurt... The greater tragedies that occur daily have to do with suicide, imprisonment due to lack of treatment, homelessness, and huge numbers of those with mental health issues showing up in emergency rooms for treatment and being there sometimes for weeks because there are no available psychiatric inpatient beds,” Honberg told Healthcare Dive. He added NAMI supports both pending mental health reform bills (H.R. 2646, S. 1945) despite controversies around some of their provisions. “It’s unfortunate everyone is focused on the controversy,” he added. “It would be very, very sad if we end 2016 with nothing done.”