Ailise Delaney
Ailise Delaney is a Resident Forum Blogger shedding light on emerging issues in Mental Health Law and Disability Rights.
In a previous post I briefly touched on the Helping Families in Mental Health Crisis Act, also known as the Murphy Bill. Because of the magnitude of the proposed legislation, I think it deserves a closer look.
At first glance, the Murphy Bill is an attractive piece of proposed legislation seeking to reform mental healthcare in America. Aiming high, the bill promises to empower parents and caregivers by modifying the Health Insurance Portability and Accountability Act (HIPAA) “so that family members can become more involved in treatment.” However, like most proposed legislation, there is a lot more to the Murphy Bill than loosening HIPAA regulations.
It’s probably important to note that 2015 is not the first time Representative Murphy (R-Pa.) proposed mental health reform. The first draft, proposed in 2013, was not well received. This is attributed in large part to Murphy Bill 1.0’s proposed ‘gutting’ of the Substance Abuse and Mental Health Services Administration (SAMHSA) by targeting SAMHSA funded programs for elimination and shifting SAMSHA funding to the National Institute for Mental Health (NIMH).
The revised version, Murphy Bill 2.0, still affects SAMHSA, but to a lesser degree. Instead of dismantling SAMHSA, the bill would create a new secretary position within the Department of Health and Human Services to handle mental health and funding responsibilities. The bill requires the new Assistant Secretary for Mental health and Substance Abuse Treatment be a medical doctor or a psychologist holding a PhD with practical experience. This new requirement addresses one of Murphy’s main beefs with SAMHSA—that it is being run by an attorney rather than a mental health professional.
Even with the revisions, many patient-advocates continue to view the bill as discriminatory and an unconstitutional violation of patient’s rights. In addition to modifying HIPAA, the bill would amend The Protection and Advocacy for Individual with Mental Illness Program (PAIMI), a federally funded program safeguarding the rights of individuals with mental health issues. Under the bill, Protection and Advocacy agencies (P&As) would be prohibited from lobbying on behalf of persons with mental illness, informing patients of their rights, engaging in systemic lawsuits, investigating and seeking legal remedies on behalf of the individual with mental illness.
To understand the magnitude of that some background information may be helpful. In 1975 The Developmental Disabilities Assistance and Bill of Rights Act established state protection and advocacy systems to serve individuals with developmental disabilities. In 1986, The Protection and Advocacy for Individuals with Mental Illness Act established “a formula grant program for statewide mental health advocacy services to be operated directly by or through contract with the state protection and advocacy agency.” In 2000 Congress expanded PAIMI to “give federally funded protection and advocacy systems authority to investigate possible abuse or neglect occurring in the community.”
Another controversial component of the bill is the apparent prioritizing of institutionalization over other, often times more successful, treatment through the creation of financial incentives, specifically a 2% increase in funding, for states that adopt assisted outpatient treatment (AOT). AOT, also known as involuntary or forced treatment, allows judges to mandate a patient’s treatment, including compelling patients to adhere to medication regimens. The financial incentive is but a minimal improvement from Murphy’s initial proposal of blocking federal funding entirely if states that did not adopt AOT.
Preference to institutionalization is seen again in the proposed lifting of the Medicaid Institutions for Mental Diseases exclusion (IMD exclusion), a prohibition on the use of federal Medicaid funds for care provided by residential treatment facilities larger than 16 beds initially imposed to prevent the practice of warehousing the mentally ill in overcrowded institutions. The bill would allow federal funds to be used so long as patients were not kept at the facility longer than 30 days. Mental Health Advocates, who have long fought to deinstitutionalize mental health, warn that the bill threatens to undo decades of progress, attacking the bill as being “a costly step backward to the days when a mental illness diagnosis was a life sentence.”
Published on February 2, 2016