Some Losses, a Few Gains as Congress Ends Session

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December 21, 2001-Congress has finally wrapped up its work on mandatory spending bills and adjourned its first session. During the session's last weeks a bipartisan amendment that would have provided full mental health parity in private health insurance plans was rejected and legislators again delayed action on the Family Opportunity Act, a bill to expand access to Medicaid for children with severe physical or mental disabilities.

Despite these disappointments, however, mental disability advocates won a few small victories. Harmful changes to the discipline provisions of the special education law were again averted and appropriators increased spending for community mental health services, overriding the President's budget proposal. Furthermore, new funds were dedicated for mental health services for the elderly and for jail diversion of individuals with a mental illness.

It remains to be seen, when the 107th Congress reconvenes in January 2002, whether legislators will commit to enacting "carry over" mental health proposals during their election-year session.

Overall Increases in Mental Health Services

The fiscal year 2002 spending bill for the Departments of Labor, Health and Human Services and Education increased funding for all programs at the Center for Mental Health Services (CMHS) within the Substance Abuse and Mental Health Services Administration. The increases starkly contrast with the President's budget proposal, which sought no new funds for any of CMHS' community mental health programs and would have cut funding for the discretionary budget (known as the Programs of Regional and National Significance), which funds best practices. (See the Bazelon Center's April 17, 2001 Action Alert for information on the President's FY01 budget proposal.)

Discretionary Programs

The Programs of Regional and National Significance, which the President wanted cut by $16 million, received the highest increase: $26 million.

• The "Safe Schools Healthy Students" program will receive an additional $5 million to continue expanding youth anti-violence prevention programs, bringing its total to $95 million.
  
• Another $10 million goes toward treating psychiatric disorders of children and youth with post-traumatic stress disorder after experiencing or witnessing trauma (new total of $20 million).
  
• $2.5 million will fund mental health providers serving public safety workers affected by disasters of national significance.
  
• Suicide prevention efforts will continue with $3 million dedicated for the National Suicide Prevention Research Center.
  

New Projects

• Outreach and treatment services for seniors received $5 million.
  
• The jail diversion programs, authorized under the Children's Health Act, received $4 million. With these funds, CMHS will be able to foster some successful jail diversion models with grants to states or localities to develop and implement programs to provide community-based services for people caught up in the criminal justice system. The dollars can also be used for training professionals involved in the system of care (e.g., mental health, substance abuse, law enforcement, attorneys, judges) and for community outreach and crisis intervention services. For more information visit our page on jail diversion for people with mental illnesses.

Mental Health Block Grant

Appropriators added $13 million to the mental health block grant program, which funds community mental health services for adults with serious mental illnesses and children with severe emotional disorders. The increase brings to $433 million the total for the federal government's largest mental health services' program for community treatment. Although a welcome step in the right direction, the increase is far short of the expanded need for mental health services in the community resulting from the President's New Freedom Initiative and states' planning for implementation of the Supreme Court's 1999 Olmstead decision.

Other CMHS Programs

Other CMHS programs also received needed increases.

• The children's mental health services program received a $5 million increase, for a total of $96.7 million. The child mental health program funds comprehensive community mental health systems of care.
• The PATH program of grants to states to provide services to people with severe mental illnesses who are homeless or at risk of being homeless is now at $39.9 million (increased by $3 million).
• The Protection and Advocacy System (P&As), providing legal assistance to individuals with mental disorders, was increased by $2.5 million for a new total of $32.5 million.
  

The chart summarizes FY 2001 funding for important CMHS programs. All figures are in millions of dollars.

Mental Health Parity Removed by Conference

On December 18, less than seven weeks after the Senate passed S. 543, the Mental Health Equitable Treatment Act as an amendment to the fiscal year 2002 appropriations bill for the Departments of Labor, Health and Human Services and Education (H.R. 3061), the House/Senate conference committee removed mental health parity from the final bill. The vote came after months of intense lobbying by the mental health community (pro) and the business/employer and health insurance industry (con). All 10 House Republican conferees voted against the parity amendment, most claiming that health insurance costs would increase and force employers to reduce or drop employee coverage. Others rejected the amendment on grounds that it was authorizing legislation and therefore unsuited to an appropriations bill.

The parity amendment, sponsored by Senators Pete Domenici (R-NM) and Paul Wellstone (D-MN), would have eliminated differences in health insurance coverage for the treatment of mental health and medical/surgical care for all mental health conditions listed in the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV). It required in-network parity for group health plans sponsored by employers of more than 50 employees, eliminating discriminatory limits on inpatient days and outpatient sessions and maximum out-of-pocket limits, co-payments and deductibles. The amendment applied to plans that already provide mental health benefits but would not require plans to offer such benefits.

As part of an earlier compromise effort, Representative Nancy Johnson (R-CT), chair of the Health Subcommittee of the House Ways and Means Committee, with the agreement of Bill Thomas, the overall committee chair, proposed to attach a modified mental health parity amendment to the economic stimulus bill (H.R. 3090) being sought by the President. This amendment would have allowed insurers to avoid complying with the law if their premiums increased by at least 1%. It would also have allowed insurers and employers to chose which benefits to cover instead of providing parity for all DSM-IV-listed disorders. These modifications, however, were unacceptable to parity advocates and to the key legislators pressing for full mental health parity.

The 1996 Parity Act, providing parity only for lifetime and annual limits, expired on September 30, 2001. However, after the conference committee voted the parity amendment down, it included language in the final conference report to extend the old law one year. The report also urges the committees with jurisdiction in the House and Senate to hold hearings and consider the parity legislation during the 107th Congress' second session. Mental health advocates will renew their push for full mental health parity next year.

Congress Again Abandons the Family Opportunity Act

For almost two years thousands of families with children with disabilities across the country have asked Congress to enact the Family Opportunity Act (H.R. 600, S. 321).The legislation was sponsored by a bipartisan team of House and Senate leaders, including Representatives Pete Sessions (R-TX) and Henry Waxman (D-CA) and Senators Charles Grassley (R-IA) and Ted Kennedy (D-MA).

The bill would remove many of the dire problems families face when they lack adequate insurance coverage for their children who require intensive health and mental health services. Often these families face the difficult choice of living in poverty or giving up custody of their child to the state so the child can obtain needed services available through Medicaid. The Family Opportunity Act would create a sliding-scale Medicaid "buy-in" for families of children with disabilities whose incomes exceed the Medicaid eligibility guidelines (up to 300% of poverty). For details, see the Bazelon Center's February 28, 2001 Action Alert

Unfortunately, despite the bipartisan support of 73 Senators and 204 members of the House and the already agreed-upon set-aside of funds in the fiscal 2002 budget, Congress once again failed to enact this critical legislation. Whereas the bill died in the 106th Congress because of strong concern from a few Senate Republicans opposed to expanding Medicaid, this year that opposition was relatively silent. It was the Democratic leadership of the Senate Finance Committee that failed to move the bill.

Special Education Law's Procedural Protections Remain

Advocates' efforts were successful in protecting students' procedural safeguards under the Individuals with Disabilities Education Act (IDEA) with regard to the controversial issue of discipline. The conferees on the reauthorization bill for the Elementary and Secondary Education Act (ESEA, H.R. 1) let two proposed discipline amendments fall by the wayside.

The amendments, authored by Senators Jeff Sessions (R-AL) and Representative Charles Norwood (R-GA), would have undercut the right to a free and appropriate public education, FAPE) for students with disabilities. (See the Bazelon Center's May 24, 2001 Action Alert.) Schools would have been permitted schools to expel and stop educating a student even if the child's actions were directly related to his or her disability. Access to appropriate behavioral intervention strategies and modifications would also be denied these children, as would other preventive measures to decrease the likelihood of future acts of violence and the re-occurrence of dangerous behavior. Essentially, the amendments would place children with mental disabilities, particularly those with serious emotional disturbances, at great risk of being denied due process protections under the IDEA.

Under an earlier compromise, enacted in 1997, school personnel had already gained increased authority and flexibility in responding to inappropriate school conduct. Also, the law allows for unilateral school removal of a student, including a student with a disability, for any discipline code violation. Similarly, in cases where a child with a disability brings a weapon to school, the school can remove the child to an alternative setting for up to 45 days-a period that can be extended if the child continues to pose a threat.

The issue will be debated again next year when IDEA is reauthorized. Forecasting a battle next year, conferees rejected attempts by Senators Tom Harkin (D-IA) and Chuck Hagel (R-NE) to fully fund the IDEA and make the funding mandatory rather than discretionary. They claimed that efforts to reform the law would be sidetracked if Congress fully funded it now.

To learn more about how the IDEA discipline provision are working effectively in school systems, please refer to the U.S. General Accounting Office's Report (January 2001, GAO-01-210), released early this year.

An Important Note

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