Washington's Amazing Mental Health Legislation

A version of this originally appeared in the excellent blog created by former Washington Post reporter Pete Earley, author of Crazy, A Father's Search Through America's Mental Health Madness.

The bipartisan Helping Families in Mental Health Crisis Act (HR2646) was recently passed by the Health Subcommittee and received a big boost when House Speaker Paul Ryan endorsed it in an unaired 60 Minutes clip. But sitting in the room watching the committee consider the bill was like attending two separate plays going on simultaneously. One play, about substantive ways to help the most seriously mentally ill was put on by Republicans. Democrats put on the other play. It demonstrated how far they had been misled by the mental health industry. It pains me to say that because I am a Democrat.

The Substance of the Bill

Historically, mental health bills in Congress have thrown money at politically correct, feel-good programs that let mental health industry engage in easy and palatable tasks like "reducing stigma," "education" or "improving mental health," but rarely deliver actual treatment to adults with serious mental illness. HR2646 has provisions to improve mental health, but it also has five provisions that start to focus government programs on delivering treatment to adults with serious mental illness. The support for the shift is coming primarily from families of the seriously ill and Republicans who want to reduce crime, incarceration and tragedies. While they were joined by 45 Democrat co-sponsors, led by Rep. Eddie Bernice Johnson, most Democrats have been taught to avoid those issues for fear of causing stigma.

Following is a preliminary analysis of how the five most important provisions came out of the markup, followed by a discussion of what went on at the hearing.

  • Makes it more likely government will work to help the seriously ill, and rely on evidence. Perhaps the most important provision of HR2646 is the dismantling of the Substance Abuse and Mental Health Administration (SAMHSA) and replacing it with an Assistant Secretary of Mental Health and Substance Abuse. SAMHSA is a disaster. It works at the federal, state, local and nonprofit level on moving mental health funds away from helping the seriously ill and toward non-evidence based, politically correct and often harmful programs designed to improve the mental health of all others. SAMHSA is not focused on helping those with serious mental illness or on reducing arrest, violence, incarceration, homelessness, hospitalization and suicide among the seriously ill. HR2646 requires the secretary to have expertise in serious mental illness, rely on evidence before expanding a program and to make serious mental illness more of a priority. Replacing SAMHSA with an Assistant Secretary of Mental Health and Substance Abuse will give mental illness a higher profile and allow better interagency coordination.

  • Makes it less likely that seriously mentally ill will be subjected to abuse and neglect. The second most important provisions are those refocusing the Protection and Advocacy for Individuals with Mental Illness (PAIMI) program on preventing abuse and neglect of persons with mental illness. PAIMI was founded by Congress to provide lawyers for among other things, protecting the institutionalized seriously mentally ill individuals from abuse and neglect. This was eventually expanded to the uninstitutionalized and other activities were allowed. PAIMI does some good work for some individual consumers, but that is trumped by it's system wide lobbying efforts designed to free the seriously ill from treatment. It is PAIMI's unrelenting opposition to Assisted Outpatient Treatment and the presence of state hospitals is causing more mentally ill to be incarcerated. The original version of HR2646 refocused the program back to protecting community and institutionalized patients from abuse and neglect. However the new bill, with amendments not yet incorporated, might allow PAIMI to engage in other activities such as advocating for benefits and educational opportunities. For the first time, there will be a grievance procedure so those who believe PAIMI is acting inappropriately can have some recourse. We'll see how that develops.
  • Makes it easier for seriously ill who need hospitals to get access. An obscure provision of Medicaid law prevents states from getting reimbursed by Medicaid for adults with serious mental illness who need psychiatric hospital care. Patrick Kennedy called it "federal discrimination against the seriously ill." HR2646, as amended and passed in subcommittee, allows Medicaid to reimburse states for 20 days per month of hospital care in a psychiatric hospital. However, prior to the bill moving to the full committee, that number will be reduced to 15 days, based on data from the Center for Medicare and Medicaid Services (CMS). If funded, it could start to end the practice of incarcerating, rather than hospitalizing many seriously ill. "If funded" is a big if. Medicare prevents beneficiaries from getting more than 190 days of inpatient care. In a previous version, HR2646 eliminated the prohibition. Unfortunately, the bill that was passed does not eliminate the provision, so Medicare can still discriminate against the seriously ill. I assume this was done for budgetary reasons.
  • Makes it easier and safer for families to help loved ones with serious mental illness. Some seriously ill need help from families. But existing HIPAA and FERPA law prevents healthcare workers and schools from telling parents what meds their children are on, what their diagnosis is, when next appointments are, which side-effects to watch out for, and other information they need to facilitate care. HR2646 as amended, allows families that provide care out of love, to get a small subset of the information paid providers already receive if the information is necessary "to protect the health, safety, or welfare of the individual or others." The disclosure is narrowly limited and information can only be disclosed if failure to disclose will lead to a worsening prognosis or an acute medical or mental health condition. The bill also makes explicit, what has always been left unsaid: nothing in HIPAA prevents doctors from receiving information from family members. These are all important.
  • Provides small seed funding for states that want to expand AOT Programs or offer treatment to the gravely disabled. Assisted Outpatient Treatment allows judges to order a tiny subset of the most seriously ill into six months of mandated and monitored treatment while they continue to live uninstitutionalized in the community. AOT is the most successful program at reducing institutionalization and incarceration of those who already accumulated multiple incidents of arrest incarceration, hospitalization, or homelessness because of the inability or unwillingness to voluntarily comply with treatment that was made available to them. The bill as passed provides $20 million for three years (2018, 2019, 2020) to go to states with existing or new AOT programs. It also provides a 2% bump in mental health block grants (under $10 million) to states with an AOT law. The bill also allows states to increase their mental health block grant by 2% if they have a civil inpatient or outpatient law that allows the gravely disabled to receive services under it. Mr. Murphy amended the bill, in response to Democrat concerns, so it does not require to states to have grave disability standards or offer assisted outpatient treatment, but gives them a bump if they do.
  • At the hearing.

    The markup room was packed for a dramatic hearing that went on for ten hours. The entire first row behind Congressional staff was lined by families of the seriously ill who asked Rep. Murphy (R., PA) if they could attend to support his efforts and those of the 117 Republican and 45 Democrat cosponsors. What united the families was compassion and love for seriously mentally ill adults who need care, not any particular party affiliation. The meeting started with a powerful speech by Rep. Tim Murphy about the need to help the seriously ill. Rep. Susan Brooks (R., IN) also made a powerful speech demonstrating her understanding of the revolving door of non-treatment the mental health industry has created for the most seriously ill.

    The Democrats led off by complaining they weren't consulted about the bill, but their real beef seems to be that the provisions above were not stricken from the bill. They introduced a last-minute 250-page mental health bill they had never shown to Republicans. Rep. Murphy stated he would look at it to see what could be folded into his bill, but explained that since no one was given time to read the bill he would not recommend voting for it at this particular meeting so it failed to pass. The Dems then presented about 40 amendments, many of which were designed to strike the provisions above that help the most seriously ill. Other amendments created new programs for multiple needy populations, but not for adults with serious mental illness. Most failed, but an amendment from Cardenas (D. CA) passed that would allow states to 'suspend' rather than 'terminate' Medicaid benefits to kids who get incarcerated, which makes it easier to restart the benefits when incarceration ends. One from Butterfield (D., NC) passed concerning training a minority workforce. And an amendment from Rep. Matsui (D., CA) that would provide education about what HIPAA does and doesn't allow was also passed.

    During the 10-hour hearing it became apparent that Democrats had been successfully misled by SAMHSA and others who advocate for the highest-functioning. Party members didn't seem to understand the difference between high functioning people and those with serious mental illnesses like schizophrenia and bipolar disorder who are not high functioning. Nor did they understand the difference between someone who is psychotic and believes the FBI planted a transmitter in her head, and someone who is sad or anxious because they are going through a tough time in their life. The Democrats on the subcommittee rarely used the phrase "mental illness," preferring "mental health" or "behavioral health" or mental health "issues." It's as if "mental illness" was a pejorative, not to be uttered in good company. Rep. Gene Green (D., TX) and Rep. Frank Pallone (D., NJ) came off as particularly misled about the nature of serious mental illness and what helps those with it.

    The Dems proposed funding "prevention." But serious mental illnesses like schizophrenia and bipolar can not be prevented because we don't know what causes them. They used the claim of "civil rights" to oppose reform, but failed to understand how the status-quo keeps the seriously ill locked in jail or psychosis both of which prevent meaningful exercise of free-will. They supported funding "early intervention," but most of the illnesses in children are primarily mild anxiety and ADHD, may remit on their own, and don't become the serious mental illnesses like schizophrenia and bipolar disorder in adults. They supported funding peer support, but peer support is not proven to work better than professional support or to reduce arrest, incarceration, homelessness or suicide.

    They tried to kill the AOT provisions by parroting false claims that AOT drives people from care, in spite of research that 80% of those in it say it helps them 'get well and stay well.' They claimed AOT is 'stigmatizing' in spite of the fact research shows those in it perceive less stigma than those who are not. They claimed AOT doesn't work by ignoring 20 AOT studies done in the last 15 years showing efficacy of AOT in multiple jurisdictions. They claimed AOT is a "last stage" intervention, ignoring the fact that for many of our loved ones, AOT is the last off-ramp before jails, shelters prisons and morgues. Joe Kennedy wanted to replace AOT provisions with ACT provisions demonstrating that he doesn't understand both are needed.

    Dems claimed to be for "parity" but defended the IMD Exclusion which discriminates against the seriously ill. They claimed relaxing the HIPAA Handcuffs would drive people from care, in spite of research showing that when families are involved, patients do better. They claimed the mentally ill are not more violent than others, without understanding that there is a subset of the most seriously ill who when they go without treatment, are more violent than others. They defended SAMHSA in spite of specific evidence that SAMHSA encourages states to spend block grants on people without mental illness, certifies programs that don't work as working, funds antipsychiatry, wastes money and ignores serious mental illness. They defended PAIMI by blaming doctors, not PAIMI, for the failure to treat patients, demonstrating oblivion to the fact that when you have a federally funded PAIMI lawyer sitting across the table saying she'll sue if the doctor treats the patient, the doctors tend to give in. Rep. Capps proposed starting a "trauma" program claiming, "Trauma can be treated." But trauma is not a mental illness. PTSD is and even that can run from mild to severe.

    I don't blame Democrats for not understanding what serious mental illness is and what helps those with it. I blame SAMHSA for misinforming them, and supporting groups that do the same.

    The bill passed 18-12, mainly on a party line vote. But Representative Kurt Schrader (D., OR) deserves special recognition, for breaking with his party's orthodoxy and voting for the bill.

    Rep. Murphy will review the last-minute bill and amendments proposed by Democrats to determine if any of their provisions should be incorporated in HR 2646 before it is presented to the full Energy and Commerce Committee. If it makes it out of that committee it goes to the full house. Then, if the Mental Health Reform Act of 2015 (S-1945) passes the Senate, the two bills will be reconciled, voted on by their respective houses, and hopefully signed by the President.

    It's a long way to go, but at last, Congress is considering how to help adults who are known to be seriously ill, rather than just throw more money at improving mental health.