Photo by Roll Call
(6-12-16) Politics is the art of compromise. That’s a common saying on Capitol Hill. Politics is about negotiating consensus and cooperation between factions.
This coming Wednesday, June 15, the House Energy and Commerce Committee is scheduled to convene a hearing to consider and vote on the Helping Families in Mental Health Crisis Act (H.R. 2646), introduced by Rep. Tim Murphy (R-PA).
The legislation the committee will be voting on has been so mightily revised by Committee Chairman Fred Upton (R-MI), to appease its detractors and House Democrats that it is hardly resembles its first version.
For those who supported Murphy’s initial efforts that’s a bitter pill. For those who opposed Murphy’s campaign, there’s reason to celebrate because Murphy’s most divisive proposals have been dropped. Advocates for the mental health groups that I polled over the weekend feel the compromise bill is “good legislation.”
The fighting is far from over, however. On Wednesday, there will be attempts by both sides to reword and rework the latest revisions, but I would imagine that Upton is a shrewd enough politician to not bring his revamped bill up for a vote without knowing that he has enough support to get it passed.
Rep. Upton’s revisions bring Murphy’s bill more in line with Senate Bill 1945, the Mental Health Reform Act, introduced by Senators Chris Murphy (D-Conn.) and Bill Cassidy (R-La.).
“Tim Murphy’s bill was always destined to be blocked because of the assisted outpatient commitment language and loosening of HIPAA,” a veteran mental health advocate noted in an email. “This is good legislation…If enacted and then administered as intended, the legislation could strengthen the leadership within the federal government on issues related to mental health and substance abuse, while building various levels of accountability at the federal, local and state levels. That makes tremendous sense.”
Let’s look back at what Murphy initially proposed after the school shootings in Newtown and the version that will be debated this Wednesday.
Don’t forget that the committee still can amend the bill and even more changes will be forthcoming when the Senate and House sit down to negotiate. Whether a final piece of legislation will pass both houses before this session of Congress ends is difficult to predict. Both Democrats and Republicans are clamoring to get a bill signed into law, if for no other reason, than to show the public that they are concerned about what should be a non-partisan issue and are capable of working together. But one analysis I read gave mental health legislation a less than ten percent chance of getting signed into law this year.
Assisted Outpatient Treatment: Arguably, the most controversial change that Murphy wanted to enact involved Assistant Outpatient Treatment, which already is available in 46 states, but is not implemented or used as widely as its backers would like. Murphy started out proposing that states which didn’t adopt and use AOT laws would be denied access to some federal block dollars. That caused so much angst among anti-AOT forces, that he revised his own bill early on. Instead of punishing states, he proposed rewarding those states that used AOT by giving them a two percent increase in block grant funding.
In the newest version of his bill, that two percent reward has been dropped. That’s a clear win for AOT opponents. However, a AOT block grant program for individuals with a serious mental illness (SMI) will continue to be funded through 2020, which translates into about $20 million for AOT assistance programs, which is a victory for those who favor AOT.
Substance Abuse and Mental Health Services Administration: Initially, Murphy wanted to gut the Substance Abuse and Mental Health Services Administration (SAMHSA) and shift much of its funding to the National Institute of Mental Health. That isn’t going to happen. SAMHSA will not be dismantled. In fact, it’s likely to get more future funding under the new legislation.
Murphy initially called for elevating mental health in the federal government by creating an Assistant Secretary for Mental Health and Substance Abuse Treatment inside the Department of Health and Human Services. That was one of the few proposals that everyone agreed was a good idea. But there is still disagreement about how much power that new secretary should wield. Murphy insists that the new secretary must be a medical doctor (psychiatrist) or PhD psychologist – a matter of some disagreement — and he initially wanted the Assistant Secretary to run SAMHSA. Under the revised version that I read, the new assistant secretary would coordinate federal mental health programs, but SAMHSA would continue being run by its Administrator, who doesn’t have to be a doctor.
Upton’s revised bill keeps some form of several Murphy objectives. SAMHSA would be required to create a strategic plan in coordination with the National Institutes of Mental Health, the new Assistant Secretary of Mental Health, and the HHS Secretary. Also, an independent evaluation of SAMHSA would be required to assess if the agency was meeting its indicated mission effectively. The new bill would establish a National Mental Health Policy Lab, which would develop and evaluate policy initiatives impacting serious mental illness.
While the new language doesn’t go as far as Murphy originally wanted, the bill is designed to make SAMHSA focus more on “evidence based” programs, which should please Murphy supporters.
Health Information Portability and Accountability Act: Murphy proposed modifying the Health Information Portability and Accountability Act (HIPAA) so that caregivers, including parents, could obtain information about a loved one who is hospitalized because of a mental disorder even if the patient doesn’t want that information shared. He later narrowed the definition of what information could be released and under what conditions. Diagnoses, treatment plans and information about medications could be shared with a caregiver when it was deemed in the patient’s best interest, but not personal psychotherapy notes.
Language that would loosen HIPAA restrictions has been dropped. Instead, the new bill would merely require the Department of Health and Human Services to review HIPAA privacy regulations and take steps to clarify the law and better educate those impacted by HIPAA about what can and can’t be made public. Although an educational program could help clarify HIPAA, this revision is a loss for Murphy’s supporters who wanted HIPAA loosened for family members and other caregivers.
Protection and Advocacy for Individuals with Mental Illness Act (PAIMI) The federal government passed the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI) to insure that persons with disabilities, including mental illnesses, were not being abused in institutions. But over the years, so-called P & A organizations expanded their reach into what Murphy and critics claimed were lobbying efforts – including opposing AOT laws, fighting changes in civil commitment laws, and blocking the construction of hospitals.
Murphy initially wanted to eliminate nearly all P & A funding. He later agreed to fund PAIMI programs but inserted language in the bill that restricted PAIMI employees to investigating cases of abuse and neglect, and banned them from lobbying public officials and from “counseling an individual with a serious mental illness who lacks insight into their condition on refusing medical treatment or acting against the wishes of such individual’s caregiver.”
This provision, which was strongly opposed by disability rights groups, has been dropped. Another loss for Murphy’s supporters.
Other changes:
Hospitals: The original bill set out to loosen the “IMD exclusion,” which prevents Medicaid from reimbursing states for providing care to people with serious mental illness between 18 and 64 who need long-term hospitalization. The exclusion was originally enacted to dissuade states from building and operating large state hospitals by denying them federal funds. Former Rep. Patrick Kennedy claimed the exclusion was discriminatory because it applied only to persons with mental illnesses and no other group. The bill being debated this Wednesday allows 15 days of reimbursement per month for individuals in managed care plans. It also gives states greater flexibility as to how to dispense Medicaid funds for hospital care. This could encourage the development of more short term beds and would be a victory for Murphy’s supporters.
Parity: The revised bill requires the Government Accountability Office (GAO) to complete a study detailing federal oversight of group health plans – including Medicaid managed care plans – to ensure those plans are not using discriminatory coverage limitations for persons with mental health and substance use conditions.
Early Intervention Programs: The revised bill calls for early intervention and suicide prevention programs. This was largely a Democratic initiative but the bill does not guarantee any appropriations for these mandates.
D. J. Jaffe, who operates Mental Illness Policy Org., has been working with Rep. Murphy nearly from the start, recently complained in a Huffington Post blog about the compromises that Rep. Upton made in Murphy’s bill and also those concessions put in the Senate version, arguing both bills miss the obvious — that the government is spending much needed funds on questionable programs at the expense of the seriously mentally ill:
Murphy found that we do not need to spend more money to cut the practice of incarcerating 365,000 seriously mentally ill, or to help the 140,000 seriously mentally ill who today go homeless. What’s required is for Congress to focus already-existing funding streams on treating the most seriously ill, instead of using them to improve mental wellness in all others. It is the untreated seriously ill — not the worried well — who need help the most.
That logic has resonated with Republican legislators but has been disputed by Democrats and most mental health providers and advocacy groups who insist they need more money because our current system is poorly funded.
Mental Health America, which was opposed to Murphy’s original bill, now supports it. The Campaign for Real Change in Mental Health Policy, which was founded specifically to block Murphy’s bill, has announced it will support Sens. Murphy and Cassidy’s bill, which the revised House bill now closely resembles. The American Psychiatric Association also supports the Senate bill as does the National Alliance on Mental Illness.
If you are keeping a score card, Murphy’s efforts to push for wider use of AOT, a loosening of HIPAA, and eliminating P & A groups all failed in Upton’s revised language. His desire to create an assistant Secretary within HHS, loosen the IMB exclusion, and to give SAMHSA better direction remained intact.
Most importantly, the hearings that he held and his bulldogged determination to get legislation passed served as an impetus that has now gotten us where we are. Agree or disagree with him, that’s no small achievement.
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