A Congressional bill would change the way federal funding for mental health care and treatment gets done. But North Carolina advocates have deep misgivings about the bill.

By Thomas Goldsmith

A mental-health reform that bill nearly unanimously passed the U.S. House is meeting political snags and opposition from advocates who say it reflects a regressive approach to mental illness.

The bill, H.B. 2646, sponsored by Rep. Tim Murphy (R-PA) and Rep. Eddie Bernice Johnson (D-TX), will likely navigate the Senate in September of a turbulent political year.

“The federal government refused to define or admit that serious mental illness even existed,” Murphy told the Wall Street Journal. “Federal policy has been a failure, an unmitigated disaster.”

Proponents say the bill addresses years of deficits in the federal response to severe mental illness, but opponents cite language which they say supports coercive care, institutionalization and loss of privacy rights.

Called the Helping Families in Mental Health Crisis Act, the bill has a companion measure in the Senate, sponsored by Sen. Chris Murphy, (D-CT) and Sen. Lamar Alexander (R-TN).

North Carolina mental health advocates including Vicki Smith, executive director Disability Rights NC, favor the Senate version and say the House bill takes steps in the wrong direction without addressing problems long familiar to North Carolina.

In recent developments, any passage of some combination of the two “Murphy bills” was being sidetracked by an attempt by Sen. John Cornyn (R-TX) to link his own mental health bill to the other measures. Cornyn’s bill directly addresses gun ownership and other areas of controversy.

All of North Carolina’s U.S. representatives voted in favor of the House bill. After the vote, Rep. Renee Ellmers, a nurse and co-sponsor, issued a statement on its behalf: “H.R. 2646 will increase access to care, save money for state and local governments and improve outcomes for patients and their families. This is a huge milestone for all states, including North Carolina.”

Lawrence Kluttz, a spokesman for Democratic U.S. Rep. David Price described the Tim Murphy bill as “far from perfect,” but he said it demonstrated a new federal commitment to mental health reform.

“Congress will need to continue working with HHS through the regulatory process to protect patient privacy,” Kluttz said in a statement Tuesday. “Congressman Price also understands the importance of community mental health — as reflected in his work over the years with Club Nova, Veritas, the Tammy Lynn Center, the Farm at Penny Lane, and other organizations — and he will continue advocating for these programs in the Appropriations process.”

Opponents cite stigma

Disability Rights NC head Smith and others say the bill’s provisions take a backward direction. In recent years there has been more emphasis on “recovery-oriented” approaches to treating mental health issues that focus on the sovereignty of people with mental illness and on receiving their input before imposing treatment.

“Across the world there is an emphasis on getting people to the place where they feel comfortable, putting a real heavy emphasis on engaging people and assessing their needs for change, ” said Laurie Coker, a Winston-Salem nurse and advocate.

“We believe that if we have more appropriate treatment approaches, more people would seek treatment and stay in treatment. When people refused treatment, it was almost always because of negative experiences they have had in the past.”

The bill’s language makes the case that interventions can be necessary with people who are unaware of the seriousness of their own illness. Opponents see H.B 2646 as a return to an emphasis on inpatient care, employing methods known as Assisted Outpatient Treatment (AOT), which can include medication administered against the will of the patient.

“When the individual with severe mental illness is significantly diminished in their capacity to care for themselves long term or acutely, other supportive interventions to assist their care may be necessary to protect their health and safety,” the bill says.

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Some key elements of House Bill 2646 include:

• The release of protected health information of a person with serious mental illness to a caregiver under certain conditions,
• Restrictions on the ability of protection and advocacy systems’ lobbying and counseling activities,
• Permission to states to use Medicaid to pay MCOs for adults ages 22-64 who are in psychiatric hospitals and acute behavioral health residential facilities, known as institutes for mental disease (IMDs), for no more than 15 days per month. Assisted living facilities with a population of more than 50% of residents with severe mental illness are designated IMDs.
• The elimination of Medicare’s 190-day lifetime limit on inpatient psychiatric hospital services, if total Medicare spending does not increase, and,
• The creation of the post of Assistant Secretary for Mental Health and Substance Use Disorders and,
• The establishment of a National Mental Health Policy Laboratory.

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Some advocates say the money that would likely go to residential care under the bill, some paid for by Medicaid, will divert funds from community resources and other more consumer-oriented means.

“We’re afraid it would only increase stigma of people with mental illness and not increase access to mental health services that many North Carolinians seek and cannot receive,” Smith said. “People with mental illness in North Carolina don’t have appropriate mental health services available to them now. Let’s focus on making those available to them now and perhaps we won’t have to focus on involuntary commitment.”

Responding to gun violence

The House measure has been years in the making, with the 2012 shootings in Newtown, Conn., as the genesis. Rep. Tim Murphy, a psychologist, first introduced a version in 2013. Strongly opposed by advocates in its first iterations, the bill underwent revisions and passed the House 422-2 on July 6, during a month when horrific shootings — including some of police officers — filled the headlines.

“The genesis of this bill seemed to be a response to mass shootings in America,” Smith said. “But if you look at who those shooters were, this still doesn’t address those individuals.”

Originally, elements of the Tim Murphy bill addressed accessibility to guns by people with mental illness. But sponsors cut those parts to separate the legislation from the controversial gun-control arena.

Its bipartisan passage reflected a political need to show some legislative progress in the light of continuing news of gun violence by people, some with a history of mental illness. It allowed both parties a chance to show some response, on the GOP side without crossing the powerful gun lobbies.

In a legislative climate where no significant mental-health measures have passed in years, some advocacy organizations have spoken out for the bill.

“The House has taken a major step forward toward mental health care reform. The bill addresses a broad range of issues and provides an important framework for the future,” said Mary Giliberti, CEO of the National Alliance on Mental Illness. “Over the past four years, House members have conducted hearings and immersed themselves in mental health policy like never before. Mental health reform is truly a bipartisan issue.”

However, NAMI has also acknowledged that many the organization’s own members have objections to H.B. 2646.

Coker, who heads the heads the nonprofit North Carolina Consumer Advocacy, Networking, and Support Organization, has been speaking out against the House bill. She has extensive personal involvement in mental-health issues, having worked as a psychiatric nurse and experienced the suicide death of her son, who had mental illness.

“It looks at people with mental illness as having such deficits that other people should rightfully take control,” said Coker, who runs the GreenTree Peer Center in Winston-Salem. “They want to fund a lot more beds for people to be in facilities. We keep throwing money at building more and more beds.”

One of the more controversial parts of the bill opens the door to revision of provisions in the HIPAA privacy law in cases of some people with serious mental illness.

It is the “sense of Congress,” the bill says that “more clarity is needed surrounding the existing HIPAA privacy rule … to permit health care professionals to communicate, when necessary, with responsible known caregivers of such persons, the limited, appropriate protected health information of such persons in order to facilitate treatment, but not including psychotherapy notes.”

The bill does not offer specific language on how HIPAA regulations might be set aside in cases of people with severe mental illness.

In addition the bill would limit the ability to lobby for the rights of people with mental illness by the nation’s Protection and Advocacy for Individuals with Mental Illness, or PAIMI groups. These groups, among them Disability Rights NC, provide support and advocacy for people living with psychiatric disabilities.

Smith said Disability Rights NC has separate funding for its lobbying activities.

Proposed amendments create stalls

Cornyn, the Texas senator, has recently proposed linking portions of his bill, S.B. 2002, the Mental Health and Safe Communities Act of 2015, to the Murphy bills. Unlike those gun-free measures, Cornyn’s bill addresses the rights of people with mental illness to own firearms.

According to Cornyn’s website, S.B. 2002 would “protect Second Amendment rights for law abiding Americans while working to identify and provide treatment to dangerously mentally ill individuals.” (Mental-health blogger Pete Earley wrote this week that Cornyn is willing to drop his efforts to link his bill to the Murphy legislation, given a compromise on some of the bill’s language. Calls to Cornyn’s office weren’t returned.)

The American Psychiatric Society isn’t so sure. In a letter to Cornyn, leaders praised some aspects of his bill. But they questioned a provision that would lift a federal prohibition preventing someone who has been “adjudicated as a mental defective” from buying a firearm.

“Federal regulations define this term to include a determination by lawful authorities that a person is a danger to himself or others, or lacks the mental capacity to contract or manage his own affairs as a result of mental illness or other conditions,” wrote APA leaders Renée Binder and Saul Levin.

“While this outmoded and stigmatizing terminology is clearly in need of modernization, we are concerned that the criteria as currently proposed in S. 2002 for mental health-related disqualification could permit individuals whose adjudicative order has expired to purchase firearms.”

Some people with mental illness who represent danger to themselves or others might interpret the bill as allowing the purchase of guns “immediately upon exit from court-ordered psychiatric hospitalization,” Binder and Levin wrote.

Cover photo courtesy Matthew Staubmuller, flickr creative commons

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