WAYS IN WHICH THE SENATE CASSIDY-MURPHY BILL IS AN IMPROVEMENT OVER THE HOUSE MURPHY-JOHNSON BILL (HR 2646)

(1) The bill does not change the scope of responsibilities or funding for the PAIMI program.

Unlike the House bill, which severely restricts the activities of the PAIMI program, the Senate bill does not make changes to PAIMI.

(2) The bill proposes less drastic changes in privacy rights for people diagnosed with psychiatric disabilities.

Unlike the House bill, the Senate bill doesn’t set a lower standard of privacy for the application of HIPAA regulations to people with psychiatric disabilities.  It does create several additional factors to be considered in circumstances where a “best interest” analysis applies (i.e., when a person lacks capacity to make a decision). This section applies to all people rather than singling out people with psychiatric disabilities.

(3) The Senate bill does not require or create incentives for the development of involuntary outpatient commitment (IOC), referred to in the bill as “Assisted Outpatient Treatment” (AOT).

In contrast, the House bill would provide a 2% increase in block grant funds to states that adopt a defined model of AOT.  However, the Senate bill does fund the AOT demonstration project that passed last year as part of the Medicare reform package known as the “doc fix” bill.

(4) The Senate bill has a slightly less drastic partial repeal of the Medicaid “IMD rule.”

In the Senate bill, the IMD exclusion is repealed for facilities with an average length of stay of 20 days rather than 30, and it applies only to psychiatric hospitals. The House bill applies to both psychiatric hospitals and “psychiatric residential treatment facilities” for adults.  

KEY CONCERNS ABOUT THE SENATE BILL

(1) Framing this bill as a companion to HR 2646 brings the Tim Murphy bill closer to passage.

Even if the Senate bill omits some of the House bill’s most controversial provisions, if the two bills pass in some form, Congress will have to iron out the differences in a conference committee. It is quite possible that some of the most objectionable provisions from Tim Murphy’s bill could end up in the conference bill. It is important to note that Cassidy, the Republican co-sponsor of the Senate bill, was a co-sponsor of Tim Murphy’s bill last year.

(2) There remain serious concerns about how privacy rights will be affected by the proposed HIPPA changes.

Despite taking a less drastic approach, the proposed changes to HIPAA in the Senate bill seem designed to promote disclosure to families, even against people’s wishes. The focus on “best interest” is also problematic because it implies that situations where people lack capacity to object or consent are common. Another major concern is that the Senate bill’s HIPAA provision takes a section of the HIPAA regulation out of context, stating that if a person is not present, you apply a “best interest” test.  The HIPAA regulation does literally say that, but it is clear from the context of the regulation that it means if the person isn’t present AND can’t reasonably be made available, you apply a “best interest” test.  Without that context, the language implies that you could ignore people’s privacy rights by simply talking to a provider when the person wasn’t there. There is significant concern about incorporating problematic language from the regulation into a statute.

(2) Even in the Senate’s modified version, there are many potentially negative consequences to changes in the IMD rule.

The reduction in average length of stay for hospitals affected by this provision is not likely to make much difference, since most psychiatric hospital units have a length of stay in the 20 day range. Although both bills say the IMD repeal can’t go into effect if it’s not cost-neutral, the long-term financial implications are extremely troubling:

• The provision that there cannot be an increase in “net program spending” may include state as well as federal spending.  If that’s the case, dollars could be shifted from community services to hospitals

• Both bills make IMD services a coverable state plan service for the first time. If passed, the next step would presumably be for sponsors to try to eliminate the cost neutrality provisions, sending large amounts of funding into hospitals, probably largely at the expense of community services.

(4) The language concerning certification standards for peer support is largely the same as in the House bill, raising concerns about loss of flexibility in determining who can serve as peers.

Although the Senate bill omits language about requiring peers to be knowledgeable about psychopharmacology and integrating medical treatment with psychiatric services, the underlying approach to peer support remains the same. If passed, the bill would exacerbate existing concerns about the lack of flexibility with respect to peer provider criteria in the Medicaid program.

(5) The bill is hardly an “overhaul” of the mental health system. 

The bill puts NO Medicaid dollars into community mental health services, while directing potentially billions of Medicaid dollars to psychiatric hospitals.  While it authorizes a number of small grant programs to look at things like integration of medical and mental health services, suicide prevention, and “early intervention” services for very young children, it has no provisions that directly expand community services.  This failure to address the gaps in the community system seems like a lack of vision for a bill that purports to be a comprehensive mental health system “overhaul.”

(6) Like the House version, the Senate bill would dismantle SAMHSA and replace it with several new bureaucratic structures under an Assistant Secretary of Mental Health.​

There is no evidence that the proposed restructuring would be an improvement over current arrangements, and the proposed changes would hamper the ability of the federal government to promote a comprehensive public health approach.

(7) Like the House bill, the Senate bill ignores the significant and growing body of research documenting the important role of trauma, the importance of prevention, and the essential role of social determinants of health.