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Bazelon Center Mental Health Policy Reporter

Volume V, No. 5: December 22, 2006

In this issue:

The 109th Congress Punts Unfinished Business to 110th including:

• Mental Health Funding
• Technical Changes to Deficit Reduction Act
• Medicaid Rehabilitation and Targeted Case Management Regulations
• Restraint and Seclusion
• Criminal Justice Collaboration on Grants Diversion
• Access to Benefits upon Release from Jail or Prison
• Parity

Newsbytes:

• States Receive Waivers for Home- & Community-Based Services for Children
• President Signs Lifespan Respite Act

Adjourning after a short post-election session, the 109th Congress failed to finish action on several bills funding federal agencies for fiscal year 2007. The longstanding, bipartisan Mental Health Parity Bill will carry over to next year, as will renewal of the programs and services within the Substance Abuse and Mental Health Services Administration (SAMHSA), including funding of mental health programs and supports. When the new Congress convenes in January, these and other carry-over issues must find their place on a long list of priority issues for next year. Action is expected on a number of health-related bills, including S-CHIP reauthorization, stem cell research and Medicare prescription drug benefit changes. Mental health advocates will have to remain vigilant and be poised for action to advance the issues that are important to children and adults with mental disabilities

Mental Health Funding

Congress failed to enact the Labor-Health and Human Services & Education Appropriations bill prior to adjournment. Programs in these agencies, including SAMHSA’s, are subject to a continuing resolution that keeps the government operating at last year’s (FY 2006) levels until February 15, 2007. Mental health and other health programs are funded at the lower of either the House or Senate bills. It appears, however, that when the new Congress convenes, it is likely to enact another continuing resolution that will extend the programs until the end of FY 2007. However, changes may be made in funding levels in high priority areas. Although Congress did not approve needed increases for most of the core programs at the Center for Mental Health Services (CMHS), these programs did not receive cuts. However, programs that might have been increased under the regular appropriations bill (both Houses approved a significant increase for suicide prevention) will not realize that increase. The chart below shows funding for CMHS programs as approved by the House and the Senate Committees. The new Congress may make some adjustments to these levels, but major changes are unlikely.

Technical Changes to Deficit Reduction Act

Congress enacted the Tax Relief and Health Care Act of 2006, a lengthy bill that deals with a number of different items, including expiring tax cuts and oil drilling. Included in this catch-all bill are technical changes to the Medicaid portions of the Deficit Reduction Act (PL 109-171). In a victory for Bazelon Center advocates who contacted members of Congress with their Medicaid citizenship-documentation concerns, a significant change was made to the requirements that Medicaid beneficiaries prove their citizenship.(See the Bazelon Center’s July 19th Action Alert.)

The new language codifies exemptions for those eligible for Medicare, Supplemental Security Income or Disability Insurance benefits (these exemptions were included through the regulatory process last summer). In addition, the law now states that children receiving foster care or adoption services under Title IV-E and IV-B of the Social Security Act are not subject to the DRA citizenship-documentation requirements. States must still verify the children’s citizenship for these programs but can do so in a manner the state finds satisfactory. The citizenship requirement was expected to be a particular burden for foster care children, for whom documentation might be hard to obtain. The President had also proposed cuts to school-based administration or transportation services for children in special education, but these regulations were not released by the Administration before Congress adjourned.

Other changes to the DRA included fixing language that was not what Congress originally intended. For example, the original law allowed people with incomes at or below the federal poverty level to be subject to cost-sharing, while those in higher income groups had some protections. Under the DRA, this lowest-income group of Medicaid recipients will continue to be subject only to the nominal cost-sharing provisions that have been in Medicaid for years. Further, individuals in this group cannot be denied access to services for failure to pay the nominal co-pay.

Medicaid Rehabilitation and Targeted Case Management Regulations

In his FY 2007 budget, the President had proposed significant changes to the Medicaid rehabilitation rules, saving significant federal dollars. (See the August 18, 2005 Bazelon Center Action Alert for a summary.) As of today, the regulations necessary to implement such a change have not been released by the Centers for Medicare and Medicaid Services (CMS), nor have rules regarding changes to the Targeted Case Management Option (TCM) of Medicaid, also made by the DRA. Both the TCM and the rehabilitation regulations are expected soon and will be open for public comment. The Bazelon Center will summarize and analyze them and if the proposed rules are problematic, it will be critical for mental health advocates to make their views known. Stay tuned for more information.

Restraint and Seclusion

Seven years after strong federal regulations governing the use of restraint and seclusion in hospital settings were issued (in interim final form) and adopted in the field, CMS weakened them considerably when it published the final version on December 8, 2006 in the Federal Register. Most notable among the standards diluted in the new rules is the “one-hour” requirement, which calls for a face-to-face patient evaluation by a physician or independent licensed practitioner within one hour of restraint and seclusion use.

This rule was considered the hallmark of patient protections, ensuring physical and psychological safety. The change in the newly issued final regulations provides for the one-hour evaluation to be made not only by physicians or independent licensed practitioners but also by physician assistants or registered nurses. Without the involvement of senior professionals in the application of restraint and seclusion, the likely result is more frequent use of such techniques and a reduced reliance on training and other forms of de-escalation.

Other changes that weaken the impact of the new final rules include a reduced requirement for monitoring and assessing patients who are in restraint or seclusion. The prior rules required continual monitoring of patients in restraint or seclusion, while the new regulation leaves the time frame of monitoring up to the hospital. These changes dramatically heighten the risk to patient safety in practices that are already inherently dangerous. Several members of Congress have expressed their dismay at these changes (as have the Bazelon Center and other advocates—see the Bazelon Center’s March 2, 2001 Action Alert). The Congressional letter to CMS urged the agency to retain and fortify the important protections in the interim final rule, including the one-hour rule, stressing that restraint and seclusion only be used as a last resort. The members also urged strengthening the reporting requirements for deaths related to the use of restraint and seclusion. This was also suggested by the HHS Office of Inspector General in the report “Hospital Reporting of Deaths Related to Restraint and Seclusion”.

Criminal Justice Collaboration Grants on Diversion

An important program in the Department of Justice provides funds to local collaborations between criminal or juvenile justice agencies and mental health systems. The Criminal Justice Collaboration Grant program is among the long list of programs that are operating under a continuing resolution. It will, therefore, have $5 million in FY 2007, as it did in FY 2006. The program was enacted by the Mentally Ill Offender Treatment and Crime Reduction Act. The program authorizes grants to states and localities to develop diversion, re-entry or in-facility programs for offenders with mental illnesses. The Department of Justice awarded planning and implementation grants for this program in FY 2006. A list of those grantees can be reviewed at http://www.ojp.usdoj.gov/BJA/grant/JMHCprogram.html.

Access to Benefits upon Release from Jail or Prison

In the fall, Representatives Julia Carson (D-IN) and Patrick Kennedy (D-RI), with eight co-sponsors, introduced H.R. 6329—the Recidivism Reduction Act. No action was possible in the short time left in the session, but sponsors will re-introduce this bill in the 110th Congress. The Bazelon Center and other national organizations will advocate for its passage.

This bill addresses problems in the Social Security system that delay access to disability benefits for offenders released from jail or prison. Access to Supplemental Security Income and Social Security Disability Insurance also triggers access to Medicaid or Medicare, providing resources for treatment as well as cash assistance for essential living expenses. Currently, the Social Security Administration (SSA) must determine whether the person remains eligible before these benefits can be re-started, even when incarceration has been no longer than a few weeks. The bill amends the Social Security law in several ways and will help offenders with disabilities obtain their benefits in a timely fashion.

Several studies have shown that access to federal benefits breaks the cycle of recidivism, especially for offenders with mental illnesses. With proper treatment and support, individuals transitioning from jail or prison can successfully re-enter society and become productive members of their communities. When receipt of benefits is delayed over the weeks and months it takes to obtain approval of a regular application, individuals with serious mental illnesses are left to fend for themselves. Many go back to living on the street or once again end up in the criminal justice system. The Department of Justice, in a recent study, found that up to 80 percent of mentally ill inmates were recidivists.

Specifically, HR 6329 would:

• Allow payment immediately for individuals whose SSI has been suspended (but not terminated) while they are incarcerated. Benefits are suspended for up to 12 months before SSA terminates them. Under this legislation, benefits would be payable while those checks are made by SSA.
  
  
• Ease re-entry for people whose SSI benefits have been terminated while they are incarcerated by allowing them to quickly re-qualify using the medical-improvement standard, instead of having them re-apply for benefits.

• Authorize a pre-release agreement program between jails/prisons and SSA for people on SSDI (currently there is a pre-release program for people on SSI) and require SSA to make greater efforts to reach out to jails and prisons and educate their own field offices so as to encourage more pre-release agreements. A pre-release agreement allows all paperwork for a disability claim to be completed prior to the individual’s release.

• Requires jails and prisons to report the release dates to SSA in order to receive the payments they are now given when they report the incarceration of someone who is on SSI or SSDI.

• Require the CMS to work with states to ensure that Medicaid benefits are suspended and not terminated upon incarceration.

Parity Stalls Again: Advocates Expect Action Next Year

Once again, Congress did not take up legislation to expand the federal Mental Health Parity Law so as to provide comprehensive mental health benefits in insurance policies. Members of Congress taking the lead on this issue expect to continue to press for this legislation with the support of more than 350 national organizations.

Comprehensive parity legislation would require equality in co-payments, deductibles, and number of visits or sessions between mental health and other medical/surgical benefits in private health insurance. The current federal law requires only equality in annual and lifetime limits (the 1996 Mental Health Parity Act). This limited law was extended again until December 31, 2007, as it has been by Congress since its initial enactment.

With a Democratic-led Congress, advocates are hopeful that 2007 will be the year when full parity finally passes.

Newsbytes

States Receive Waivers for Home- & Community-Based Services for Children

Under the Deficit Reduction Act, Congress authorized a five-year demonstration program to allow up to 10 states to receive home- and community-based waivers for children who are in, or at risk of placement in, psychiatric residential treatment centers (RTCs). The grant program will test the cost-effectiveness of allowing such waivers as alternatives to RTCs. Current law only permits waivers for children and adolescents who would otherwise be hospitalized. Many states are unable to secure waivers due to their decreased use of hospital placement for children with serious mental disorders. However, many children with serious mental disorders are at risk of placement in a residential treatment center.

The grant announcement for this demonstration was sent to the field earlier this year, and on December 19, 2006, CMS announced the successful demonstration recipient states: Alaska, Florida, Georgia, Indiana, Kansas, Maryland, Mississippi, Montana, South Carolina and Virginia. These states will receive a total of $21 million in the first year.

The demonstration will run through 2011. According to CMS, states receiving these grants estimate that they will serve 11,000 children by 2011. Children enrolled in the program at its end may, under the law, continue to receive services as long as they need them. For more information click here.

Respite Act Signed

 The Lifespan Respite Care Act of 2006 (H.R. 3248) was approved by Congress during the lame-duck session. The bipartisan legislation was supported by a broad coalition of more than 170 national, state and local organizations, including the Bazelon Center. It was championed by Senators Hillary Clinton (D-NY) and John Warner (R-VA) and Representatives Mike Ferguson (R-NJ) and James Langevin (D-RI) and signed by President Bush on December 21, 2006.

The law authorizes $289 million in grants over five years for states to develop Lifespan Respite Programs to help families access quality, affordable respite care regardless of age or disability. Lifespan programs are defined "as coordinated systems of accessible, community-based respite care services for family caregivers of children and adults with special needs."

Grant funds can be used for:

1) development of state and local lifespan respite programs;
2) planned or  emergency respite care services;
3) training and recruitment of respite-care workers and volunteers; and
4) caregiver training.