Bazelon Center Legislative Update: Congress Passes Mental Health Bills

Restraint Protections, Jail Diversion and Integrated Treatment Are Authorized; Commission on Outpatient Commitment Is Not Included

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October 4, 2000—Last week Congress passed the Children's Health Act of 2000 (H.R. 4365), a comprehensive bill addressing a variety of important health, mental health and substance abuse issues. The bill passed on September 27 and the President is expected to sign it into law. In addition to renewing a number of programs within the Substance Abuse and Mental Health Services Administration (SAMHSA), it includes standards for the use of restraint and seclusion.

Elements of Omnibus Bill Included

The bill also incorporates several provisions from the Mental Health Early Intervention, Treatment and Prevention Act (S. 2639/H.R. 5091), which was introduced earlier this year by Senators Pete Domenici (R-NM), Edward Kennedy (D-MA) and Paul Wellstone (D-MN), and Representatives Ted Strickland (D-OH) and Heather Wilson (R-NM). These provisions are:

• programs to divert individuals with a mental illness from jail into community-based services ($10 million authorized for fiscal 2001);
• integrated treatment programs for individuals with a co-occurring mental health and substance abuse disorder ($40 million authorized for fiscal 2001);
• grants to support the designation of hospitals and health care centers as Emergency Mental Health Centers ($25 million authorized for fiscal 2001);
• programs to integrate child welfare and mental health services for children and youth at risk of entering the system ($10 million authorized for fiscal 2001);
• mental illness awareness training for teachers and other relevant school and emergency services personnel ($25 million authorized for fiscal 2001); and
• suicide-prevention programs targeted to children and adolescents ($75 million authorized for fiscal 2001).

The programs are authorized for three years, with funding as necessary for fiscal years 2002 and 2003.

SAMHSA Reauthorized with New CMHS Programs

In addition to reauthorizing important SAMHSA programs to improve mental health and substance abuse services for children and adults, H.R. 4365 contains new programs for the Center for Mental Health Services (CMHS). These originated with the Youth Drug and Mental Health Services Act of 1999 (S. 976), sponsored by Senators Bill Frist (R-TN) and Edward Kennedy (D-MA), which passed the Senate last year. They are:

• a grant program to provide aftercare services to youthful offenders with or at risk of serious emotional disturbance;
• a program to fund local communities' efforts to help children deal with violence and to prevent youth violence; and
• a program to research mental health disorders stemming from witnessing violence or being a victim of violence or related stress.

Important Mental Health Programs Renewed

Important CMHS programs were renewed by enactment of H.R. 4365, with a few changes. The programs include:

• the mental health block grant that provides comprehensive community-based services for adults with severe mental illnesses and children with serious emotional disturbance. State plans were previously required to meet 12 performance criteria. The block grant is now restructured, with five criteria;
• the protection and advocacy systems, with an expansion of responsibility for individuals with mental illnesses. P&As will now be permitted to serve people living in the community once the program's appropriation exceeds $30 million (the fiscal 2000 appropriation is $25 million);
• the children's comprehensive mental health services program that provides for the development of local interagency systems of care to meet the complex needs of children and adolescents with serious emotional disturbances. Grants to localities now run six years instead of the prior five, with current grantees in their fifth year able to benefit with this change;
• the PATH grant program that provides mental health and substance abuse services to individuals with severe mental illnesses who are homeless; and
• the KDA discretionary program, which currently provides grants to local communities to prevent youth violence and resources to nine sites across the country to study the effectiveness of jail diversion programs for individuals with mental illnesses.

Federal Standards for Use of Restrraint and Seclusion

Nearly two years after The Hartford Courant highlighted an appalling number of deaths among children and adults with a mental illness from the use of restraints and seclusion across the country, Congress has set a protective floor of national standards that must be met by a variety of psychiatric treatment facilities. The new standards will not, however, preempt federal and state laws and regulations that are more protective of patients' rights, such as the rules promulgated last year by the Health Care Financing Administration (HCFA) for hospitals participating in the Medicaid or Medicare program.

The new protections establishes two sets of standards, depending on the type of facility. One applies to "non-medical community-based facilities for children and youth." The facilities will be defined in regulations and will include group homes and the like. The other set applies to any health care facility that receives federal appropriated funds, such as a public or private general hospital, an intermediate-care facility or other health care facility. All must comply with the general principle of protecting and promoting the right to be free from restraints and seclusion for purposes of discipline or convenience.

The bill requires that seclusion and restraint be used only:

• to ensure the physical safety of the individual or others; and
• subject to a written order by a physician or other licensed practitioner permitted by the facility and state law. In most cases, the written order will be obtained soon after the restraint or seclusion is initiated by staff.

Medications and drugs that are used to control behavior and are not a standard treatment for the individual's condition are considered a form of restraint and, accordingly, are subject to the same requirements.

Deaths Must Be Reported Promptly

Facilities must also report, to agencies designated by the Secretary of the Department of Health and Human Services, any death that occurs within 24 hours after the person has been released from the restraints and seclusion or where it is reasonable to assume the death was the result of the restraints and seclusion. The designated agencies are likely to include protection and advocacy systems, which have unique federal authority to investigate and legally pursue instances of abuse and neglect in facilities.

In addition, the Secretary, within one year of enactment, must issue rules on appropriate training in the use of restraints and seclusion, in alternatives to their use and in adequate facility staffing.

Special Restrictions in Facilities for Children

Use of restraints and seclusion in "non-medical, community-based facilities for children and youth" is:

• limited to emergency situations to protect the immediate physical safety of the person or others; and
• imposed only by individuals trained and certified by a state-recognized body in a list of competencies, including the physiological and psychological impact of restraint and seclusion, in monitoring physical signs of distress and in the prevention of restraint and seclusion use. However, an interim requirement was included to provide protections until a state develops a certification process for the competency areas. During this period, a supervisory or senior staff person, trained in restraint and seclusion and competent to make a face-to-face evaluation, will make a patient assessment within one hour of the initiation of restraint or seclusion and continue to monitor the use for its duration.

In these facilities, time-out and physical holds are not defined as seclusion or restraint. Accordingly, the new requirements do not apply to these procedures. However, for this limited group of youth-serving facilities, mechanical restraints and drugs are prohibited as a form of restraint and seclusion can only be used when a staff member is continuously monitoring face-to-face. Deaths that occur within 24 hours must be reported.

Furthermore, within six months of enactment, the Secretary must release regulations regarding national training standards and within a year states that license these facilities are required to develop a set of monitoring requirements on behavior management.

Barriers Remain to Integrated treatment of Co-Occuring Disorders

Mental health advocates were extremely disappointed that H.R. 4365 does not allow use of blended block grant dollars (mental health and substance abuse) to fund integrated treatment programs. Federal reporting requirements imposed by SAMHSA currently prevent states from funding integrated treatment programs using both the mental health and substance abuse block grants.

Instead of removing these barriers, the bill maintains current law and imposes a two-year requirement on SAMHSA to study and report to Congress on evidence-based practices for individuals with co-occurring disorders. However, it does authorize a new $40 million grant program to provide integrated treatment services for this population.

Grants under this program will be prioritized to serve individuals with co-occurring disorders:

• who are homeless;
• who have a history of involvement with the criminal justice system;
• who have recently been incarcerated;
• who have a history of treatment failure; or
• who have not remained engaged in outpatient services.

The Surgeon General's Report on Mental Health confirms the research evidence supporting integrated treatment for individuals with a co-occurring mental health and substance abuse disorders and acknowledges the gap between what we know and what is available in communities.

In light of the service gap for integrated treatment and the associated high risk for people with co-occurring mental health and substance abuse disorders of coming in contact with the criminal justice system, being homeless and a host of other adverse consequences without proper treatment, this is considered a priority population. While the new discretionary program on integrated treatment is a step forward, advocates will continue to press for more flexibility under SAMHSA rules for states' use of block grant funds.

Jail Diversion Programs Authorized

A new CMHS jail diversion grant program is authorized by H.R. 4365. Once funded, the program will provide up to 125 grants to states or localities to develop and implement programs to divert individuals with a mental illness from the criminal justice system to community-based services.

States applying for grants must demonstrate that the diversion program will be integrated with existing systems of care, that collaboration has occurred between the systems (criminal justice, mental health and substance abuse) and that state-of-the-art community-based mental health services will be available to diverted individuals. These grants could also be used to fund several activities, including:

• creation or expansion of community-based mental health and co-occurring mental illness and substance abuse services to accommodate the diversion program. These services could include case management, assertive community treatment, integrated treatment for mental health and co-occurring substance abuse, psychiatric rehabilitation, and access to and management of medication;
• training of professionals involved in the system of care and of law enforcement officers, attorneys and judges; and
• community outreach and crisis intervention services.

In 1997 CMHS, through its general demonstration authority, funded a three-year study on the effectiveness of jail diversion programs. This new grant program will build on knowledge gained from this study and will assist localities in building diversion programs.

Commission on Outpatient Commitment Omitted

H.R. 4365 does not include the controversial national commission to study outpatient commitment and involuntary treatment, a proposal introduced in the Domenici-Kennedy-Wellstone comprehensive mental health bill (S. 2639) and the companion bill in the House (H.R. 5091). The $1.5 million politically appointed commission was to have a broad agenda, from reviewing inpatient and outpatient civil commitment and possibly developing model state involuntary treatment legislation, to studying the effectiveness of promoting inclusion of mental health consumers in their treatment decisions.

The Bazelon Center had opposed the commission. Instead, we asserted, any study of the mental health system should focus on expanding the availability of effective community-based services and on engaging consumers to seek care voluntarily. As the Surgeon General's Report has emphasized, "the need for coercion should be reduced significantly when adequate services are readily accessible to individuals with a serious mental disorder who pose a threat of danger to themselves or others." The report further concluded that "coercion should not be a substitute for effective care that is sought voluntarily."

Mental Health Courts Now On A Separate Track

Legislation to establish mental health courts was not included. However, Senator Mike DeWine's (R-OH) free-standing mental health court bill (S. 1865) passed the Senate by unanimous consent a few days after Congress passed H.R. 4365.

S. 1865 would authorize up to 125 grants to states and localities to create mental health courts. The courts would divert non-violent offenders with a mental illness, who are arrested, into community treatment through judicial supervision, treatment compliance and coordinated case management.

Although the House has yet to act on Representative Strickland's companion bill (H.R. 2594), the Senate bill may go straight to the House floor for a vote in the few remaining legislative days of this Congress.