Bazelon Center Mental Health Policy Reporter

Welcome to the Bazelon Center Mental Health Policy Reporter. Available exclusively online and to our email subscribers, the Reporter supplements the Bazelon Center 's Action Alerts by providing a periodic bulletin on significant policy developments that affect people with mental illnesses.

Volume VIII, No. 8, December 17, 2009

Road to Health Reform is Bumpy, But Protections and Programs Advance on Other Fronts

In this issue:

• Health Reform Debate Intensifies in the Senate
• Bill to Regulate and Promote an Alternative to Restraint and Seclusion in Schools
• Improved Protections for Juveniles
• Most Mental Health Programs Get Increased Federal Funding

Newsbytes

• Lifelines – a blueprint for access to benefits on leaving jail or prison
• Guidelines for telemental health delivery

The top policy topic in this issue is, of course, health care reform. As intensive debate in the Senate occupies the nation’s front pages, it’s worth noting that both the House and Senate bills would – if enacted – expand insurance coverage and increase access to services that are critical for people with mental illnesses or substance use disorders.  Of equal importance to children and families is proposed legislation that would both regulate the use of restraint and seclusion in schools and fund implementation of Positive Behavior Support (PBS) to more appropriately and effectively address challenging behaviors. Children and youth who encounter the  juvenile justice system would also receive important new protections with reauthorization of the Juvenile Justice & Delinquency Prevention Act. 

Health Reform Debate Intensifies in the Senate

The battle for comprehensive health reform continues in the Senate, as Democratic leaders press efforts to pass reform legislation by year’s end. On November 18th, Senate Democrats unveiled their bill to reform America’s health care system, the Patient Protection and Affordable Care Act (H.R 3590). The bill is the result of many weeks of work merging two bills passed earlier this session by the Finance and Health, Education, Labor and Pensions Committees.

On the same day, the Congressional Budget Office released estimates showing significant long-term savings and expansion of care. Their analysis indicated that the Senate legislation would reduce the federal deficit by $130 billion over 10 years, with small reductions in the second decade, and extend coverage to 31 million more Americans who currently lack health insurance.

The bill survived its first critical test on Saturday, November 21st, as Senators voted 60-39 to move the bill to the floor for debate. Debate on H.R. 3590 is currently underway.

As drafted, the Patient Protection and Affordable Care Act would help extend affordable and quality health care to millions of Americans. Changes that would directly benefit individuals with severe mental illnesses include:

• Ending the discriminatory practices often experienced by individuals with mental illnesses by eliminating lifetime or annual dollar limits and banning exclusion for pre-existing conditions and rates based on health status, gender or occupation.
• Establishing State Health Insurance Exchanges as a marketplace for consumers to purchase private health plans.
• Requiring health plans to include mental health and substance abuse services in their benefit packages and requiring parity of these benefits with other healthcare in plans offered through state exchanges.
• Including as an option a federally funded public plan to compete with private insurers in the exchanges.
• Providing tax credits and cost-sharing reductions to help low-income households afford insurance.
• Expanding Medicaid to children and pregnant women with incomes at or below 133% of the federal poverty level and extending limited Medicaid coverage to childless adults with incomes at or below 133% of poverty.
• Improving Medicaid home- and community-based services.
• Establishing a new Medicaid state plan option for beneficiaries with chronic conditions, including serious and persistent mental health conditions, to designate a provider as their "health home."
• Assisting Medicare beneficiaries who reach the coverage gap known as the "doughnut hole" in the Medicare Part D program.

Earlier in November, the House of Representatives cast a historic vote approving the Affordable Health Care for America Act, H.R. 3962, by 220-215. The bill achieved bipartisan support with one Republican vote.

Negotiations continue in the Senate, with leaders hoping to achieve compromises on contentious provisions in the reform legislation, including the controversial public option. Last week Senate leaders announced a deal on the public option that now awaits cost estimates from the Congressional Budget Office. However, details are being furiously contested and renegotiated daily. The Senate is quickly running out of time to conclude debate and the remaining procedural motions that must occur in order for the bill to be passed before the winter recess begins. Then both House and Senate bills must be reconciled by a conference committee — in all likelihood, a contentious process — and the resulting legislation approved by each house before it can go to the President for signature.

The Bazelon Center has produced summaries of the House and Senate bills’ potential impact for mental health consumers. Please visit http://www.bazelon.org/issues/healthreform/index.htm for these summaries and links to the bills themselves, with ongoing updates. Also, Families USA has released a short report analyzing how the Senate version of health care reform will affect health coverage.  The report includes state-specific data on how many people will gain coverage, including the number newly eligible for Medicaid.  It also cites data on how many will remain uninsured if Congress does not act.

Protections for Children and an Alternative to Restraint and Seclusion

Congress has resumed work on protecting America’s schoolchildren with the introduction of bicameral, bipartisan legislation that challenges harmful seclusion and restraint practices in the nation’s schools. Introduced on December 9 by House Education and Labor Committee Chairman George Miller and Representative (D-CA) Cathy McMorris Rodgers (R-WA) in the House and Senator Christopher Dodd (D-CT) in the Senate, the Preventing Harmful Restraint and Seclusion in Schools Act (H.R. 4247) and the Prevention of Abusive Restraint and Seclusion in Schools Act (S. 2860) seek to eliminate the dangers associated with the imposition of restraint and seclusion.

The bills propose, instead, adoption of school-wide Positive Behavior Support (PBS), a proven alternative approach to addressing students’ challenging behavior in school settings.

A Promise Fulfilled

The legislation follows investigation and congressional scrutiny of restraint and seclusion practices prompted by Chairman Miller earlier this year. Although federal law regulates the use of seclusion and restraint with children in hospitals, residential treatment centers and other facilities receiving federal funds, children in public and private schools enjoy no such protections. This omission compelled Chairman Miller to request an investigation of the practices by the Government Accountability Office (GAO) and to convene a hearing in May 2009 (see the Bazelon Center’s May 2009 Policy Reporter) that revealed shocking misuse of these procedures in schools.

Released in connection with the hearing was the GAO’s report, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers. The report cited hundreds of allegations of such cases since 1990, almost all involving children with disabilities.

Chairman Miller vowed to act swiftly to introduce legislation that would protect children from these harmful practices and offer superior and more appropriate approaches to address the social and emotional needs of a diverse student population. Both bills would:

• Prohibit the use of restraint and seclusion in schools unless the student’s behavior poses an immediate danger of physical injury and less restrictive interventions would be ineffective.
• Require appropriate training for school personnel who may potentially use restraint and seclusion practices.
• Require schools to notify parents after restraint or seclusion is used.
• Require states to create a plan that incorporates policies, procedures, monitoring and enforcement systems in order to meet minimum standards. 
• Provide competitive grants to assist with the development and implementation of the state plan, provide training and certification to school personnel, and implement positive behavior support to further prevent restraint and seclusion.
• Require states to collect and report restraint and seclusion data annually to the Department of Education.

The Bazelon Center applauds Chairman Miller, Representative McMorris Rodgers and Senator Dodd for championing legislation that condemns inappropriate use of restraint and seclusion and endorses school-wide Positive Behavioral Support (PBS). School-wide PBS is an effective, evidence-based approach to promoting a learning-friendly school climate that is beneficial for students and school staff alike. It significantly reduces discipline problems and addresses the social and emotional needs of all students, while providing the tools necessary for school personnel to aid students who demonstrate frequent behavior problems.

Studies of residential treatment facilities have shown that organizational and milieu interventions, such as positive behavioral supports, effectively reduce the use of physical restraint with children with significant behavioral needs in residential settings.1 Implementation of school-wide PBS has been shown to reduce the number of problem behaviors, saving countless hours of instruction time. Teachers at schools implementing school-wide PBS perceive their schools to be safer teaching and learning environments for teachers and students alike. For more information on school-wide PBS, see the Bazelon Center’s report, Way to Go.

JJDPA Reauthorization to Protect Juveniles

The Bazelon Center has joined health and mental health advocates in calling for passage of  the Juvenile Justice & Delinquency Prevention Reauthorization Act of 2009 (S. 678) reauthorizing the bipartisan Juvenile Justice & Delinquency Prevention Act (JJDPA).

As the major source of federal funding to improve states' juvenile justice systems, the JJDPA has provided critical protections to youth in the juvenile justice system for over 30 years. In order to receive federal funds, states are required to maintain core protections for children, such as prohibiting detention of juveniles in adult jails and lock-ups, except for limited times before or after a court hearing, and forbidding contact with adult inmates during that time. The law also requires states to address the disproportionate confinement of minority juveniles in all secure facilities. For more information about S. 678, please visit http://www.act4jj.org/.

The reauthorization legislation also includes important new protections for youth in the juvenile justice system, such as:

• Provisions that ensure that youth involved in the juvenile and adult criminal justice systems are placed in developmentally appropriate and safe environments, and are provided comprehensive services and supports;
• Provisions to reward states that implement effective, evidence‐based rehabilitation programs and services that increase the likelihood of successful reintegration of incarcerated youth into society after release.
• Grants for states to establish state-level partnerships of mental health and juvenile justice authorities to implement diversion and treatment programs, and to train juvenile justice professionals in assessment and diversion.
• Requirements that states develop plans to implement screening, assessment, referral and treatment programs for juveniles with mental illnesses.

S. 678 was introduced by Senators Patrick Leahy (D-VT), Arlen Specter (D-PA), Herb Kohl (D-WI) and Richard Durbin (D-IL) and referred to the Committee on the Judiciary. Debate is scheduled to begin shortly. However, an early amendment that may be proposed by Senator Jeff Sessions (R-AL) is of great concern. Current federal transfer law states that an adult court judge determines on a case-by-case basis whether it is “in the interest of justice” to charge a youth in an adult court. The amendment would allow prosecutors, instead of impartial judges, to determine whether to prosecute a youth as an adult for certain federal crimes. For more information on potential negative repercussions of such an amendment, please see a factsheet from the Campaign for Youth Justice.

Appropriations Increase Funding for Most Mental Health Programs

On Sunday, December 13th the Senate passed a $447 billion spending bill that will complete work on appropriations for Fiscal Year 2010. The bill passed in the House on December 10th and is currently on its way to the President for signing.
The omnibus bill affects funding levels of various mental health and substance use programs. Appropriations for FY 2010 include:

• $421 million for the Mental Health Block Grant, the same allocation as FY 2009;
• $121 million for children’s mental health services, a $13 million increase beyond the FY 2009 allocation;
• $14 million for SAMHSA’s primary and behavioral health care integration grant program, doubling the FY 2009 allocation of $7 million;
• $1.8 billion for the Substance Abuse Prevention and Treatment Block Grant, an increase of $20 million;
• $65 million in grants to states for programs to provide homeless and seriously mentally ill individuals with community-based support services, a $5 million increase;
• $100 million for Second Chance Act Recovery programming, which is four times the FY 2009 allocation of $25 million;
• $12 million for the Mentally Ill Offender Treatment Crime Reduction Act, a $2 million increase;
• $45 million for a new transitional workforce initiative to help workers who face substantial barriers to entering the workforce, including substance use, mental illnesses and disability; and;
• An additional $1.5 million for suicide prevention.

The legislation passed the Senate largely along party lines with a vote of 57-35, and was approved in the House by 221-202. For more information, please visit http://appropriations.house.gov/.

Newsbytes

Lifelines  – A Blueprint for Access to Benefits on Leaving Jail or Prison
A new Bazelon Center publication for state and local officials and corrections administrators offers a blueprint for promptly linking inmates of jails and prisons who have psychiatric disabilities to federal benefits upon their release back into the community. Lifelines: Linking to Federal Benefits for People Exiting Corrections outlines the steps necessary for aligning the complex rules of federal benefit programs to state and local policies in order to create a system of services and support for released inmates and facilitate their transition from institution to community. A plan for action at the facility level offers steps that administrators can take within existing rules to address re-entry issues for inmates with psychiatric disabilities.

Lifelines is published in three sections for user convenience:

• Volume 1: The Case for Benefit Assistance as Part of Re-Entry Programming includes data on need and cost-benefit analyses from existing initiatives.
• Volume 2: What State and Local Governments and Correctional Facilities Can Do, the heart of the blueprint, lists policy changes and implementation steps to ensure access to benefits.
• Volume 3: Appendix, explains the federal rules on benefit programs, discusses ways for corrections and mental health systems to collaborate in sharing health information and offers an extensive list of links to model policies and other resources.

Lifelines can be downloaded free as a PDF file or purchased ($6 plus shipping and handling) at www.bazelon.org/issues/criminalization/publications/Lifelines/Lifelines.htm.

Telemedicine Guidelines
The American Telemedicine Association has released new guidelines directing the delivery of mental health services by way of remote technology. The guidelines, available free from the association’s website, are designed to assist with the development and practice of safe, coherent, effective and sustainable telemental health delivery, with a focus on providing services through two-way, interactive videoconferencing.