Legislative Update: Lawmakers Prepare for Final Stretch of First Session of 106th Congress

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September 15, 1999—When Congress reconvened in early September, after a month-long August recess, legislators faced the prospect of spending the last months of the Congress considering priority measures, including those of importance to individuals with mental disorders. Over the next few weeks, Congress is expected to tackle medical records privacy, work incentive legislation, managed care reform and renewal of various programs within the Substance Abuse and Mental Health Services Administration (SAMHSA).

At the same time, members must also complete work on the remaining appropriations bills, including the one funding the mental health programs in the Departments of Health and Human Services—often the most contentious—despite tight budget restrictions.

Bipartisan Bill Enters Managed Care Reform Debate

Partisan politics has divided the members on managed care reform through most of the session despite strong public support for comprehensive patient protections in private health insurance. In mid July, the Senate finally passed a reform bill. However, this Republican-backed measure (S. 1344), considered a "sham" protection bill because it fails to provide meaningful consumer protections, lacked the support of many consumer and patient advocacy organizations, including the Bazelon Center. S. 1344 only covers Americans enrolled in self-insured managed care plans, provides no legal remedies for patients harmed by a health plan's decision to withhold or delay care, and contains various other provisions opposed by the President.

In the House, Representatives Charlie Norwood (R-GA) and John Dingell (D-MI) teamed up to introduced the first bipartisan compromise bill to enter the debate, The Bipartisan Consensus Managed Care Improvement Act, H.R. 2723. Both Members had previously introduced separate bills earlier this year. This compromise bill has the support of both Democratic and a growing number of Republican members of Congress (currently there are 65 co-sponsors, a third of whom are Republicans), making its prospects for passage high. The health insurance industry has already spent thousands of dollars on media campaigns opposing the measure.

The Norwood/Dingell bill is a good bill, even though it is not as comprehensive as the bill initially endorsed by the Bazelon Center and other consumer advocacy groups, Patient's Bill of Rights (S. 6, introduced by Senators Tom Daschle (D-SD) and Edward Kennedy (D-MA) and H.R. 358, introduced by Representatives John Dingell (D-MI) and Richard Gephardt (D-MO)). It contains many of the same strong patient protections as S.6/H.R.358, including continuity of care, access to speciality care and emergency care provisions. Accountability is also ensured, as individuals would have the right to sue in state court, although punitive damages would not apply if the plan followed the decision of an external review board.

Although the bill does not provide a definition of medical necessity, it leaves the final decision by external review in the hands of physicians. The bipartisan compromise is favored by many consumer, provider and advocacy groups and by the Administration.

Most recently, Representatives Tom Coburn (R-OK) and John Shadegg (R-AZ) released a less comprehensive managed care reform proposal (H.R.2824).

SAMHSA Renewal Moves Through Congress

In late July, the Senate Committee on Health, Education, Labor and Pensions passed S. 976, the Youth Drug and Mental Health Services Act of 1999, introduced by Senators Bill Frist (R-TN) and Edward Kennedy (D-MA). The legislation renews various programs within the Substance Abuse and Mental Health Services Administration and also creates new programs to improve mental health and substance abuse treatment services, some of which are directed to youth at a high risk of engaging in violent behavior.

The bill, reported out of Committee, extended the grants under the child mental health program for a sixth year (currently these are 5 year awards), and renewed the community mental health block grant program and the PATH program, which provides state grants for services to severely mentally ill persons who are homeless or at risk of being homeless.

It also included several promising provisions:

• a new grant program to provide aftercare services to youthful offenders at risk or with serious emotional disturbances;
• new restraint and seclusion reporting requirements for health care facilities and requirements for appropriate staff training. These provisions were taken from Senator Dodd s restraint and seclusion bill;
• a program to fund local community efforts to prevent and treat youth violence; and
• an expansion of the responsibility for the protection and advocacy systems for persons with mental illness, permitting P&As to serve individuals living in the community once the appropriation for the program exceeds $30 million (the FY 1999 appropriation is $22.9 million)

What the bill failed to include was a proposal from advocacy groups to target new mental health block grant resources for services to the most high risk adults and children. Under the rejected proposal, funds under the targeted portion of the block grant would have been used to provide a broad array of community-based mental health services: day treatment programs, integrated treatment for the dually diagnosed, assertive community treatment, case management services, hospital discharge planning and family education. These services would help to prevent adverse consequences for both children and adults, such as homelessness, suicide, being placed in jail, abusing alcohol or illegal substance, as well as being a danger to self or others.

Efforts to provide states flexibility to merge mental health block grant funds with substance abuse block grant funds to provide integrated treatment for persons with co- occurring mental illness and substance abuse disorders were also excluded. The Committee deferred to an agreement reached by the two national organizations representing state mental health and substance abuse directors by maintaining current law, where reporting requirements, imposed by SAMHSA, have prevented states from being easily able to fund integrated programs using both block grants. The Senate will likely adopt S. 976 by unanimous consent.

The House has not yet introduced a renewal bill and may even opt to move the Senate measure. The Bazelon Center will continue to advocate for these priority initiatives throughout the legislative process.

Support Soars for Work Incentives

Since the Senate overwhelmingly passed a Work Incentives Improvement Act (S. 331) in June by a vote of 99-0, the companion measure in the House (H.R. 1180) has been stalled in the House Ways and Means Committee, despite having over 200 congressional cosponsors. The legislation is also an Administration priority.

The disability community is eager to enact the legislation that will increase opportunities for individuals with disabilities who receive Social Security Disability Insurance (SSDI) benefits to be able to work and become independent, while maintaining their federal health care insurance. Advocacy groups have mounted grassroots campaigns to increase the number of co-sponsors and bring the bill to a floor vote before adjournment. However, tax cuts, budget deals and appropriations bills will serve as high priorities for Members during the final days of the session, making any House action on H.R. 1180 an uphill climb.

Furthermore, the Ways and Means Committee is still struggling to find funding for the bill. This problem has largely been responsible for the delay. The Congressional Budget Office estimates the bill will cost approximately $800 million over the next five years. And since the Senate passed-bill included no funding provisions, Ways and Means members must work out how to fund it.

Hope for Medical Records Privacy Continues

The Senate Health, Education, Labor and Pensions Committee repeatedly attempted to mark up medical records privacy legislation earlier this summer, but could not resolve differences on key areas. Disagreements remain on whether an individual should have the right to enforce breaches of the law and whether federal laws should preempt state laws. Similarly, there has been no House action on any of the privacy bills introduced.

Although lawmakers adjourned for their August recess without meeting the August 21 deadline imposed by the enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), members are expected to resume work on medical privacy when they reconvene in September. HIPAA required the Secretary of the Department of Health and Human Services to promulgate privacy regulations for electronic medical records by next February if Congress fails to pass legislation. A medical privacy law, rather than regulations, are favored by many, including Congress, the Administration and consumer groups. If and when federal legislation is enacted, it would override the Secretary s regulations in any event. Congress can also opt to extend its own deadline anytime it chooses.

2000 Fiscal Year Draws Near

With the 2000 fiscal year approaching, Congress must soon complete all 13 appropriations bills or it must pass a continuing resolution to keep the federal government operating at current FY 1999 levels. While the House and Senate have only a few bills remaining, budget caps imposed by the 1997 Balanced Budget Act have set tight restrictions on the availability of funds for increases in priority programs. Both Senator Arlen Specter (R-PA) and Representative John Porter (R-IL), respective chairmen of the subcommittees with jurisdiction over mental health programs in the Department of Health and Human Services, delayed work on the bill because not enough money was allocated to create an acceptable bill. Congress can raise the caps to avoid significant cuts to important programs.

One of the Administration s budget priorities strongly advocated by the Bazelon Center, along with other leading national mental health organizations, has been a proposal to increase the mental health block grant funding levels by $70 million. The new funds would provide evidence-based community services to targeted high risk adults and children.

Conferees To Decide Final Juvenile Justice Outlook

Prior to the August recess, a group of House and Senate Members were selected as conferees to the two juvenile justice bills, passed by the House and Senate this summer (S. 254, H.R. 1501). The conference committee is charged with negotiating and reconciling differences between the bills. The committee is now expected to work on producing a final bill. However, controversial gun control issues that delayed their initial work must still be resolved. The President has said he will veto a bill that does not have adequate gun-control provisions, such as those in the Senate bill.

Included in the bills are several harmful provisions for youth as well as those that will positively impact upon at-risk juveniles or those who are already detained. The Bazelon Center is strongly opposed to a provision in both bills that would undermine the Individuals with Disabilities Education Act (IDEA). The provision amends IDEA by eliminating the right to a free and appropriate public education for students with disabilities who violate school rules about weapons.