Bone marrow transplant recipients have been found to commit suicide at more than twice the rate of the general population, according to a recent European study. With a sample of almost 300,000 bone marrow transplant recipients, the rate of suicide was 21 per 100,000 people, as compared with 9 per 100,000 in the general population. While the signs of depression that often coincide with the diseases that create the need for transplants may be a cause, this increased rate in suicide may also be attributable to the physical and mental toll of the transplant process. Irrespective of the precise cause, serious implications may result in the transplant allocation process if this study is given weight.
The scarcity of organs that we continue to struggle with in the United States and abroad justifies the goal of allocating organs to individuals who will best take care of them. In doing so, we create requirements for individuals who, for example, are in need of a liver transplant due to their alcohol abuse. It would be counterintuitive to give a liver to someone who, by his or her own volition, will abuse the anatomical gift. Among these requirements, alcoholic candidates are given their position on priority lists only after they can establish that they have abstained from alcohol for a given period of time. There are countless additional measures employed to attempt to ensure that the limited available organs are not wasted. This goal of distributing organs intelligently to avoid waste is critical to the United States’ system of allocation.
The moral principles behind the various methods of organ allocation create this intention of maximum preservation. This goal of saving the most lives creates an immediate dilemma when taking this study into consideration.
Depression has been found in greater rates among those in need of transplants when compared with the general population, and this fact is entirely unsurprising. But should an individual’s psychological reaction to his or her medical misfortune be a factor for consideration when allocating organs? It would seem to be in direct contrast to other allocation principles and criteria to ignore this fact when the goal is to save the most people—especially when the potential deaths after receipt are entirely caused by the individual. In terms of saving the most lives, taking into account the risk of suicide after receipt of an incredibly scarce resource may be a mandatory consideration.
However, this then demands that antidiscrimination be taken into account in organ allocation. While California has included antidiscrimination provisions in their Uniform Anatomical Gift Act, New Jersey has proposed similar provisions that prohibit discrimination against potential organ transplant recipients on the basis of physical or mental disability. Depression appears to be the cause of this increased rate of suicide, and what is depression if not mental disability? The Americans With Disabilities Act (ADA) covers individuals who have a physical or mental impairment that substantially limits one or more major life activities. Therefore, candidates with depression that suffer from substantial limitations in their lives may be entitled to an ADA claim if they are discriminated against on the basis of their depression.
 Andrew M. Seaman, Suicide, accidents linked to bone marrow transplant, Reuters, (Apr. 12, 2013), http://www.reuters.com/article/2013/04/12/us-suicide-accidents-linked-to-bone-marr-idUSBRE93B14F20130412?feedType=RSS&feedName=healthNews.
 Cal. Health & Safety Code § 7151.35 (West 2013).
We live longer now but I don’t know that we live demonstrably better. Perhaps as a testament to my devotion, I bought tickets and brought my girlfriend to see John Denver w/band at the Best Buy theater in Manhattan. She’s a fan; I could not be described as such. The band was live, John Denver decidedly not– he having died in a plane crash back in 1997. But a video screen brought Mr. Denver back for the evening, and the band played wonderfully along in the foreground as video John Denver talked and sang– never once coming close to a dissonant note while looking and sounding like something that could only be described as the long lost innocence of a culture past.
Maybe his act was nothing but hokhum even back then, the unabashed optimism of his Country Roads, Sunny Shoulders and Rocky Mountain Highs just something we wanted to believe about ourselves: unbridled, essentially good and not particularly complicated. But in the 70s and into the 80s until his death, John Denver sold millions of records, hosted the Grammys five times, and an annual Christmas show on television which is said to have been viewed by over 60 million people; today he would be laughed away in a maelstrom of derision.
Maybe this is just the plaint of someone whose beard has gone gray and has answered one too many emails during dinner; maybe there is nothing essentially different in this lament than what I heard as a kid when old people pined for Glenn Miller and Benny Goodman: lost youth. But it seems like something more was lost in these last few decades. Face to face with John Denver’s stark exuberance, profoundly, I was driven to tears.
And yes, I sang along.
I’m not quite ready to give up a life in the law and what I learned from Voltaire, but will note that there appears to be a correlation between cynicism, pessimism and adverse health– and a good case is made for an inverse correlation between cynicism and success. Maybe take a minute or two and click and have a listen– think about it as a moment’s analog vacation from the drivers of modernity, from data mining dossiers, writ of attainder drones and thousand page statutes. Or, for the more adventurous, an evening with the posthumous Mr. Denver is still available– but be careful, if you’re of a certain age you may find yourself , inexplicably, crying over something you hadn’t even realized you lost.
As I mentioned here last month, government leaders are turning their attention to mental health issues — focusing on diagnosis and access to treatment, in particular — in the wake of the horrific shootings at Sandy Hook Elementary School in Newtown, Connecticut in December. Even though it remains unclear whether or not the shooter suffered from any form of mental disorder, many leaders have argued that expanding treatment access for those suffering from mental disorders will prevent future tragedies.
As President Obama pledges to define the new mental health essential benefits under the Affordable Care Act (“ACA”), state leadership is also beginning to react. Perhaps somewhat surprisingly, South Carolina Governor Nikki Haley (R) — the leader of the state that had cut mental health funding by nearly 40 percent from 2009 to 2012 (mentioned here) — is now leading the call to increase funding and services for those diagnosed with mental illness.
In addition to her proposal to increase funding for mental health services by $16 million in the summer of 2012, Haley has now called for an additional $11.3 million in funding for the South Carolina Department of Mental Health (“SCDMH”); in fact, her total proposed budget for the SCDMH in the 2013 budget is $17 million. Haley has been particularly outspoken on the issue, noting that “[t]here is nothing wrong with someone who has a mental health issue…. There is something very wrong when that person doesn’t get treatment…. These are good productive citizens that deserve to live good, healthy life [sic]. And if given treatment they can be incredibly successful. If not given treatment, we as a state have failed.”
She has argued that increasing funding for mental health treatment can prevent another tragedy like the one seen at Newtown. Treating an increase in mental health funding as an alternative to implementing additional gun control or gun safety measures, Haley mentioned that “[n]o amount of gun control can stop someone from getting a gun when they want to get it. What we can do is control mental health in a way that we treat people.”
Undoubtedly, the increase in funding is an abrupt policy change from South Carolina’s recent history. From 2008 to 2012, the state was cutting funding to the South Carolina Department of Mental Health by an average of $70 million per year.
Ironically, however, Governor Haley is speaking during the exact same time that all states are deciding whether or not to expand their Medicaid programs under the ACA — which would affect many individuals’ access to mental health services. Just earlier this week, Ohio Governor John Kasich (R) agreed to expand his state’s Medicaid program, while Pennsylvania Governor Tom Corbett (R) has decided to opt-out of the expansion. Corbett’s refusal made Pennsylvania the eleventh state to decline to expand its Medicaid program. And who else is staunchly opposed to expanding her state’s Medicaid program?
South Carolina Governor Nikki Haley.
This past summer, Governor Haley announced “via Facebook that South Carolina ‘will NOT expand Medicaid, or participate in any health exchanges’” (emphasis in original). According to the Health Affairs Blog, South Carolina’s refusal to expand its Medicaid program would prevent more than 500,000 South Carolinians from being granted healthcare coverage. In other words, if Haley had decided to expand her state’s Medicaid enrollment pursuant to the ACA, South Carolina’s Medicaid enrollment would increase from about 951,000 currently (which is nearly one in every five South Carolinians) to nearly 1.5 million in FY 2014.
Governor Haley’s recent positions create a situation in which the state is increasing funding for mental health service offerings in the state, but is refusing to expand coverage (paid for in whole by the federal government for three years) to many individuals who currently lack access to the services. Needless to say, positions taken on health policy issues cannot be examined in isolation.
Indeed, according to the Congressional Budget Office, if all states agreed to opt-in to the Medicaid expansion under the ACA, 13 million more Americans would have their mental health treatments covered by Medicaid. However, given the policy positions like those of Governor Haley, this — unfortunately — remains highly unlikely. Treatment offerings can increase, but if individuals do not have insurance coverage to pay for those services, access and receipt of those services is likely to remain largely elusive.
In response to the jarring and horrific shooting at Sandy Hook Elementary School in Newtown, Conn. on Dec. 14, Pres. Obama signed a number of executive orders last week, flanked by schoolchildren and Vice Pres. Biden. The official investigation into the contributing factors and details surrounding the mass shooting continues, but much of the public discourse on the policy response has already begun in earnest. Most solutions seem to be focused on addressing two identifiable “causes” of the shooting: first, the availability of guns (and especially, semiautomatic weapons), and second, the lack of mental health care services available to Americans who struggle with mental disorder.
Although it is clear that a high-capacity gun was used to perpetrate the assault, there has been no clear evidence that the shooter had been diagnosed with any mental disorder. In fact, assuming a link between mental disorder and the Newtown shooting continues to reinforce destructive stereotypes and stigma about mental illness, according to many experts. As many who study the subject area know, mental disorder does not equal violence. Instead, those with mental disorder are no more likely to be dangerous than those without a diagnosis. Further, at this point, no one could say with confidence that mental illness was a contributing cause or even a factor that led to the magnitude or occurrence of the shooting – opposite, of course, from the individual’s ability to get a high-capacity semiautomatic weapon.
Ironically, however, given President Obama’s response last week, this may be a vital inflection point in the fight to extend healthcare coverage for those diagnosed with mental illness. As I have noted in the past here, states are trimming back their mental health budgets – even while up to 20 percent of Americans are diagnosed with some form of mental illness each year. In a confounding policy response, a handful of states have cut funding by more than 30 percent since 2009.
In such a climate, many advocates hailed the Affordable Care Act (“ACA”) as an opportunity to improve mental health parity and coverage throughout the country. Finally, many argued, individuals diagnosed with mental disorder would have their treatments covered by plans established within state-run exchange plans and the Medicaid expansion. But, through last year, this seemed to be likely an unrealized hope, as the Department of Health and Human Services (“HHS”) loosened the regulations governing the scope of essential health benefit coverage under the ACA.
Assumedly in an effort to increase the likelihood of state buy-in to the ACA, two recent publications by HHS gave states extremely wide latitude in determining what each state’s benchmark plans were required to cover for mental health services. In addition to giving states the ability to substitute coverage for certain services each state saw fit, HHS did not explicitly tell the states which mental health services they must cover. In other words, HHS guidance did not set a “federal floor” for the states’ plans. Further, other guidance seemed to conflict with a liberal reading of mental health essential health benefits. In defining an essential health benefit under the ACA, a 2011 Institute of Medicine report noted that states were required to only cover services that were “medically necessary,” without sufficient guidance. Indeed, holistic mental health treatment does not always meet this limiting requirement. Thus, it seemed – to the dismay of many mental health advocates – that insurance coverage may not be substantially changed or expanded under the celebrated ACA.
That is, until last week. As part of President Obama’s response to the shootings, he said he would address that gap in the ACA. He specifically noted that he would contact state officials to clarify both Medicaid requirements and new exchange plan requirements. In effect, the President may be establishing a specific “federal floor” – a minimum of mental health services that states must cover. Importantly, President Obama also mentioned that regulations that require equal coverage for mental health services (parity requirements) would be finalized.
Thus, even as advocates cringe to hear the public’s further stigmatizing and (at least to this point) unfounded linkage between mental disorder and the horror seen at Sandy Hook, mental health coverage under the ACA may actually be expanded after all. This reversal in policy is undoubtedly stunning, but how much coverage for individuals diagnosed with mental disorder actually changes – and how and if this expansion actually prevents future incomprehensible massacres like Newtown – remains to be seen.
Interesting article in the Washington Post/ Kaiser Health News I stumbled across in our sidebar; it discusses both the cost of addiction, with emphasis given to drugs and alcohol, and the absolute dearth of doctors trained in addiction medicine.
The article states that
“Of the 985,375 practicing physicians in the United States, only about 1,200 are trained in addiction medicine….”
And notes that
A recent comprehensive report by the National Center on Addiction and Substance Abuse (CASA) at Columbia University found that most doctors fail to identify or diagnose substance abuse ‘or know what to do with patients who present with treatable symptoms.’
Which is problematic, given that the report is said to have found that “Only about 10 percent of the 22 million Americans with a drug or alcohol problem receive treatment,” “addiction [including nicotine] is linked to more than 70 diseases or conditions and accounts for a third of inpatient hospital costs. The press release from the report, “Closing the Gap between Science and Practice,” also notes that “Costs to federal, state and local governments amount to 11 percent of total spending; 95 cents of every dollar pay for the consequences and only 2 cents go to prevention and treatment.”
And rather ominously, the WaPo/Kaiser Health News article reports that “The federal Substance Abuse and Mental Health Services Administration estimates that up to a third of the 30 million Americans who may gain health insurance under the Affordable Care Act have a substance abuse or mental health problem.”
There’s some math to be done here regarding costs, and I won’t suggest that I know what percentage the total spending should be for prevention- but I’ll guess that 2% for prevention and treatment is not ideal. And the thought that “most doctors fail to identify or diagnose substance abuse ‘or know what to do with patients who present with treatable symptoms,’” is less than comforting.
But, as someone with a rather large personal stake in all this- in recovery for nearly two decades- what is somewhat comforting is that if, as the report suggests, there is a gap between the science and practice (actually, the more you look, “chasm” seems more fitting a description), a closer look at the science shows some remarkable advances in medical science’s understanding of addiction-especially as it regards the neurobiological processes, focus on the brain’s “reward circuitry,” neuroadaptations maintained by former drug users long after drug use has stopped, with particular attention on the mesolimbic dopamine system, and, more generally, addiction as a disease of bio-psycho-social etiology.
Armed with this knowledge and the prospect of the newly insured and afflicted making their way to emergency rooms and court houses all across America, perhaps this next decade can be about implementation- always difficult, but surely the fruit of hard won knowledge. And if you have any doubts about the actual costs of drug and alcohol addiction- tallied in lives and families ruined- or to get a sense of just how important implementation is-I would highly recommend you find your way to an Al-Anon or Nar-Anon meeting, and just listen.
- In The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement of Inmates with a Mental Illness (forthcoming in the Denver University Law Review), Thomas Hafemeister and Jeff George provide a fascinating history of prolonged solitary confinement and helpful reviews of the empirical research establishing that such confinement “is virtually guaranteed” to cause significant psychological harm and of the Eighth Amendment jurisprudence addressing the practice. Tragically, the limited extant empirical evidence indicates that our “supermax” facilities and units house not the worst of the worst but rather “a disproportionally large number of inmates suffering from a serious mental illness.” Hafemeister and George conclude that prolonged solitary confinement, without more, is not unconstitutional under the Supreme Court’s current standard. Inmates who are mentally ill or highly vulnerable to becoming so, however, “can readily establish the requisite deliberate indifference on the part of [prison] officials with regard to the impact of prolonged solitary confinement[.]“
- On May 31, 2012, the Center for Constitutional Rights filed an amended complaint in Ruiz v. Brown, a proposed class action lawsuit brought on behalf of prisoners at California’s Pelican Bay State Prison who claim “that prolonged solitary confinement violates Eight Amendment prohibitions against cruel and unusual punishment, and that the absence of meaningful review for [Security Housing Unit ("SHU")] placement violates the prisoners’ right to due process.” In its press release announcing the suit, CCR highlighted the following allegations: “SHU prisoners spent 22 ½ to 24 hours every day in a cramped, concrete, windowless cell. They are denied telephone calls, contact visits, and vocational, recreational or educational programming. Food is often rotten and barely edible, and medical care is frequently withheld. More than 500 Pelican Bay SHU prisoners have been isolated under these conditions for over 10 years, more than 200 of them for over 15 years; and 78 have been isolated in the SHU for more than 20 years. Today’s suit claims that prolonged confinement under these conditions has caused “harmful and predictable psychological deterioration” among SHU prisoners. Solitary confinement for as little as 15 days is now widely recognized to cause lasting psychological damage to human beings and is analyzed under international law as torture.”
- Priscilla Ocen’s article Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners (forthcoming in the California Law Review) is also well worth reading. Ocen contends that because our Eighth Amendment jurisprudence is racially blind, the historical and ideological foundations of the practice of shackling pregnant prisoners during labor, childbirth, and recovery have been obscured. She argues, compellingly, for an “antisubordination” reading of the prohibition on cruel and unusual punishments, one that would take account of “the racial and gender stereotypes of women prisoners that render then vulnerable to shackling practices.”
- I also recommend Lisa Heinzerling’s searing blog post on the cost-benefit analysis which accompanied the Department of Justice’s recently-released final rule implementing the Prison Rape Elimination Act. Heinzerling describes the DOJ’s analysis as “a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse.” In it, she writes, DOJ finds “itself in the remarkable position of asking how much money the victims of rape would be willing to pay to avoid rape and also asking how much money these victims would be willing to accept in exchange for being raped. … Never mind that rape is a serious crime, not a market transaction. Never mind that framing rape as a market transaction strips it of the coercion that defines it. Never mind that the law under which DOJ was acting is the Prison Rape Elimination Act, not the Prison Rape Optimization Act. In the topsy-turvy world of cost-benefit analysis, DOJ was compelled to treat rape as just another market exchange, coercion as a side note, and the elimination of prison rape as a good idea only if the economic numbers happened to come out that way.”
- Finally, Rick Hills’ response to Heinzerling’s post is also provocative and worth a read. Hills argues that the DOJ’s analysis should have gone further down the road of quantifying the benefits of prison rape regulation, in order to support additional, costly, reforms. Hills writes “that it is better to ‘feel violated’ by facing up to the need to choose between costly reforms and substantial benefits than to refrain from adopting any costly reforms at all in order to avoid the comparison. Put more generally, sometimes it is impossible to induce judges, legislators, and the voters at large to bear big burdens unless one makes explicit the benefits that such burdens will produce.”
With Memorial Day upon us, I thought it fitting to highlight this initiative of the United States military to study mental health risks for soldiers. According to a press release issued by Rutgers University:
The Rutgers Cell and DNA Repository (RUCDR) has received $2.4 million to study the genetic make-up of soldiers at risk for suicide or psychological issues – part of the largest study of mental health risk ever conducted by the United States military.
“I am especially pleased that we have the opportunity to participate in efforts to improve the health of our active military and veterans,” said Jay A. Tischfield, Duncan and Nancy MacMillan Professor at Rutgers University and director of the Human Genetics Institute of New Jersey. “This award may help shed light on the biological basis of these mental health risks.”
As part of the Army STARRS (Study to Assess Risk and Resilience in Servicemembers) initiative – which is surveying the lives and mental health of 55,000 active duty soldiers – blood samples have been collected and sent to the RUCDR, the largest repository in the world providing DNA, RNA cell lines and genetics analytical services to hundreds of research laboratories across the globe.
The new Henry M. Jackson Foundation for the Advancement of Military Medicine financial award will now enable scientists at Rutgers to provide data for determining if there is a genetic predisposition to the increased risk of suicide or other mental health issues.
Although historically military suicide rates have been below the civilian population, since 2002 the suicide rates among soldiers have risen significantly. According to the U.S. Army Public Health Command, from 2004-2008, the suicide rate of active duty military increased by 80 percent.
As a matter of disclosure, it is probably important for me to note that Seton Hall Law’s Center for Health & Pharmaceutical Law & Policy has recently collaborated, quite successfully, with the Rutgers Center for State Health Policy on a number of matters, including a research study, “New Jersey Law Reform in Response to Patient Protection & Affordable Care Act,” and a guide, “Health Insurance Exchanges: Governance Issues for New Jersey.”
Having said that I have probably read far too much dystopian literature to be comfortable with the potential implications for society and the workplace with the prospect of a genetic profile which may determine and/or disclose a predisposition (or lack thereof) for mental resilience, mental health issues and suicide risk.
And although efforts to stem the tide of military suicides are to be highly commended, it is also probably important to remember the context in which these efforts arise. I wrote this last year at this time:
As Memorial Day comes to a close and we ready ourselves for a return to work and all that brings, let’s take a moment, after this single day dedicated to the ultimate sacrifices made by American military men and women, to consider our part of the bargain.
These are the opening paragraphs from an Associated Press article which ran two weeks ago:
Noting that an average of 18 veterans a day commit suicide, a federal appeals court on Tuesday ordered the Department of Veterans Affairs to dramatically overhaul its mental health care system.
In the strongly worded ruling, the 9th U.S. Circuit Court of Appeals said it takes the department an average of four years to fully provide the mental health benefits owed veterans.
The court also said it often takes weeks for a suicidal vet to get a first appointment.
The “unchecked incompetence” in handling the flood of post-traumatic stress disorder and other mental health claims is unconstitutional, the court said.
And, one might add, unconscionable. The AP notes that
The court said a 2007 report by the Office of the Inspector General found significant delays in timely referrals from VA doctors for treatment of PTSD and depression. Fewer than half of the patients received same-day mental evaluations while others had to wait as long as two months for a counseling session.
But wait, there’s more. A questioning attempt at cover up in an email from a high ranking VA official-which begins with an imperative for quiet: The AP notes:
“Shhh!” began a Feb. 13, 2008, e-mail from Dr. Ira Katz, a VA deputy chief. “Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month among the veterans we see in our medical facilities. Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?”
Katz wrote in another e-mail that 18 veterans kill themselves daily on average.
And then, an attempt to have VA counselors purposefully misdiagnose. AP reports
After the trial another e-mail surfaced that was written by VA psychologist Norma Perez suggesting that counselors in Texas make a point to diagnose fewer post-traumatic stress disorder cases. The veterans’ lawyers argued that e-mail showed the VA’s unwillingness to properly treat mental health issues.
Judge Stephen Reinhardt wrote for the court:
“No more veterans should be compelled to agonize or perish while the government fails to perform its obligations. Having chosen to honor and provide for our veterans by guaranteeing them the mental health care and other critical benefits to which they are entitled, the government may not deprive them of that support through unchallengeable and interminable delays.”
On Memorial Day we rightly honor our dead. But let’s not forget the sacrifices of the living– or our part of the bargain.
Late last month, Essex County Mental Health Association director Bob Davison went undercover to experience the current conditions at Dover Woods, a residential psychiatric facility in Toms River, New Jersey. His subsequent report was published in the Newark Star-Ledger. It paints a bleak and jarring account of life within the large mental health care facility, as the state continues to remove individuals from state-run hospitals and places them in residential health care facilities like Dover Woods.
Davison spent just over 48 hours in the facility. He reported his room was “small” – featuring cigarette burns, rips in the bed spread and sheet, and broken dressers and closets. However, more disturbing was what Davison experienced while interacting with other residents — he was sexually propositioned by an “actively psychotic” woman, had “no heat on a chilly night,” heard individuals “actively hallucinating” and “up all night screaming,” and broke up a fight between two individuals when officials were nowhere to be found.
In addition to what he saw inside the facility, Davison was disturbed by what he saw outside of it. Averaging 275 police calls per year, Dover Woods is located near two major state highways, and the area lacks safe sidewalks — even though residents are free to come and go as they wish. During his stay, Davison nearly witnessed a resident get hit by a car while crossing Route 9, one of the highways near the facility, something that is apparently not uncommon. In fact, just a week before Davison’s undercover visit to the facility, Dover Woods resident Edward Braden was struck and killed while trying to cross Route 70 at 11pm on a Monday night.
Davison’s interactions with Dover Woods officials seemed surprisingly infrequent: when checking in, officials quizzed him about his criminal history (and took him at his word). Further, three days after he left the facility, Dover Woods officials finally called his emergency contact in search of him.
Davison’s experience highlights the worst of the residential health care facilities for the mentally ill — which cost the state around $68,000 per year per resident (compared to $301,000 per patient per year in a state-run psychiatric hospital). He hopes his experience will bring more attention to the residential facilities and will lead to long-term changes. And with many states cutting funding for mental health services previously mentioned here, investigations like Davison’s that draw attention the plight of the severely mentally disordered continue to be invaluable.
As proof that the only news in health law does not involve the Supreme Court’s consideration of the challenge to the Affordable Care Act, here are some interesting recent articles that are worth a read:
1. Frank McClellan and others recently released the results of their study, “Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency.” Some doctors perceive that socioeconomically disadvantaged patients tend to sue their doctors more frequently, which has influenced them not to provide care or to provide care in different ways to this population. For example, 57 percent of physicians polled in California in 1995 cited this belief as important in their decision not to treat Medicaid patients. Yet McClellan and his co-authors review studies showing that, to the contrary, poor patients tend to sue their physicians less often than other groups. Indeed, there is evidence that patients in lower socioeconomic groups are also less likely to file nonmeritorious malpractice claims. One possible explanation that the authors of this project offer to explain this disconnect between physician perception and fact is unconscious or implicit bias, which “describes thinking and decision making affected by stereotypes without one being aware of it” that “can explain why people may consciously believe in a truth, whereas their behavior, affected by subconscious prejudices, is contrary to that truth.” For example, physicians unconsciously concerned that poor patients will not adequately compensate them for their care “might consciously or unconsciously presume poor patients are more likely to sue as an excuse or way of avoiding the presumed difficulty associated with collections from such patients.” The authors of this study make recommendations to confront unconscious bias and provide culturally competent care (“CCC”), including increasing diversity, educating providers about CCC, improving provider communication skills, and enhancing patient health literacy. CCC educational efforts are especially valuable in specialties like orthopaedic surgery, where approximately 84 to 89 percent of providers are white males. It is thought that these efforts will improve medical care to lower socioeconomic groups and reduce the risk of malpractice claims.
2. In “Diversion of Offenders with Mental Health Disorders: Mental Health Courts,” Sarah Ryan and Dr. Darius Whelan review the use of mental health courts in the United States, Canada, England, and Wales and consider whether these courts should be established in Ireland. The article first reviews Therapeutic Jurisprudence (“TJ”), a foundational theory underlying problem-solving courts like mental health and drug courts that “promotes the employment of a ‘problem-solving pro-active and results oriented posture that is responsive to the current emotional and social problems of legal consumers.’” While advocating its strengths, the authors also warn of the danger that paternalistic applications of TJ can water down due process and rule of law values. They then identify and compare features of mental health courts that have developed in the United States, Canada, England, and Wales since the pioneer court started operating in Broward County, Florida in 1987. After evaluating the main merits (e.g., more appropriate treatment and potentially reduced recidivism and costs) and criticisms (e.g., concerns about coercion, waiver of due process rights, stigmatization and segregation of the mentally ill, diversion of resources, and lack of empirical data that they are effective) of these courts, the authors conclude that mental health courts could offer a partial solution to the challenges facing Ireland’s criminal justice system. Not surprisingly, they urge policymakers to select the best features of the programs that have evolved to date and to apply TJ “in a careful manner, to avoid interference with defendants['] constitutional rights.” For example, the authors recommend that a solicitor be appointed at the first indication an offender could be eligible to participate. Further, they believe that Ireland should not require offenders to plead guilty as a pre-condition to participate in the program because such a requirement is “antithetical to the goal of decriminalising the mentally ill.” They warn, however, that for the program to be viable, Ireland would have to allocate substantial funding to develop community mental health treatment facilities.
3. Recent Harvard Law School graduate Maggie Francis has written, “Forty Years of ‘Testing, Testing’: The Past and Future Role of Policy Experimentation in Healthcare Reform,” which reviews the federal government’s use of pilot projects and demonstration projects over the past forty years to test innovative health reform ideas. As Ms. Francis describes, her article is the “first . . . in the legal literature to analyze the use of systemic policy experimentation by the federal government to reform the healthcare system.” She describes the number and types of problems facing the healthcare system and why policymakers have chosen pilots as a means of addressing these problems. The article then evaluates whether pilot projects are a useful tool in healthcare reform. Ms. Francis identifies numerous advantages to pilots, including that they provide some cover to controversial innovations from political pressures and permit government to try multiple theories in different pilots to assess what works better in different populations, locations, etc. and to make adjustments based on experience that should make large-scale implementation smoother. She also warns of some possible roadblocks, including lack of adequate information and competence to select the right pilots and then to oversee their implementation and evaluation. A common criticism of these programs is that they take too long to test new ideas and expand those that are successful. Securing consistent funding has also been a challenge. In addition, political interference and gamesmanship can undermine efforts to innovate. Ms. Francis concludes that, despite their limitations, pilot projects satisfy policy makers’ need for information about reform ideas and their consequences and offer the most promise where “organizational challenges, rather than stakeholder opposition and distributional problems, are the primary obstacle to reform.” As a result, she posits that pilots might be more successful at encouraging widespread adoption of less controversial innovations, such as medical homes, than with contributing “significantly to the goal of cost control, which necessarily raises contentious distributional issues among powerful stakeholders in the healthcare industry and is likely to trigger rent-seeking behavior by interest groups.” Ms. Francis’s observations are not merely historically interesting but rather offer important insights given the variety of pilot projects included in the ACA to help identify a politically viable way to bend the healthcare cost curve while improving quality. Ms. Francis reviews the diverse medley of pilots in the ACA, including, but far from limited to, the creation of the Center for Medicare and Medicaid Innovation, reminding us all how much more there is to the ACA than just the mandate and how much we will learn from its implementation.
Starting in 2010, states began addressing illegal immigration by rewriting their laws on the books. Over the past two years, two states – Alabama and Arizona – have passed strict anti-immigration laws, and both states have had their laws challenged in court with split results. Just last week, the Kansas legislature’s committee on House Federal and State Affairs reviewed new bills which would require police officers to verify citizenship and would criminalize the harboring of illegal immigrants. Mississippi, which estimates it has 90,000 illegal immigrants living within its borders, has also discussed passing an anti-immigration bill which would force police officers to detain those who fail to produce identification.
With more illegal immigrants becoming ensnared in the growing detainment and deportation framework nationwide, the question of how they should be treated, once detained, is unavoidable. How their mental health conditions affect their due process rights is one of the issues near the top of this list.
Four decades ago, the United States Supreme Court held that an incompetent criminal defendant could not be held by the state indefinitely while the state waited for him to become competent to stand trial. Instead, the court held, the detention must only be held for a “reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Jackson v. Indiana, 406 U.S. 715, 738 (1972). The court added that if the individual’s competence is unlikely to be restored, then the state must civilly commit the individual or release the defendant. Id.
However, today, contrary to the spirit of Jackson, those subject to removal proceedings who are declared incompetent to proceed are left in a lurch. Many represent themselves during the proceedings – according to the Department of Justice, about 60 percent. Further, the hearings are often complicated by language barriers. Without counsel and unable to understand the proceedings, the result: indefinite detention, or (arguably) worse, immediate deportation.
The lack of guidance – and dearth of procedural protections in this area – has even left judges seemingly frustrated. Immigration judge Renee L. Renner, in dismissing a removal proceeding against Ever Martinez Rivas, wrote that “[t]he Attorney General has provided little guidance regarding steps to take to protect the rights and privileges of the alien.” Likewise, in her decision, U.S. District Court Judge Dolly Gee noted “the absence of any systemic guidelines setting forth what is a ‘reasonable accommodation’ for unrepresented mentally incompetent aliens.” See Franco-Gonzales v. Holder, — F.Supp.2d —-, 2011 WL 5966667, at *12 (C.D. Cal. May 4, 2011).
But help could be on the way. Recently, purported class action lawsuits were filed by the ACLU, Public Counsel Law Center, and others, seeking representation for severely mentally disordered detainees. Although many of the court documents remain sealed, in a May decision, Judge Gee went on to order that mentally incompetent detainees must receive a custody hearing – in which the court would review the appropriateness of the detainee’s current custody – and must be given the services of a qualified representative (an attorney, law student or law graduate, or “accredited representative”). Id. at *11. Subsequently, in late November 2011, Judge Gee granted class certification to the detainees in the lawsuit (individuals with severe mental disorders currently detained in California, Washington, and Arizona). Franco-Gonzales v. Holder, No. CV 10-02211 (Order Re: Plaintiffs’ Motion for Class Certification) (Dkt. 348) (Nov. 21, 2011). Last week, the proceedings were stayed so that the parties could pursue a potential settlement. Id. (Order Staying Proceedings) (Dkt. 372) (Feb. 13, 2012).
The lawsuit seems to be a vital first step in building a more equitable system for incompetent detainees. And while litigation continues, the cases serve as a reminder to Americans to seek not only clear, enforceable guidelines governing removal and/or paths to citizenship, but also fair and clear procedures that govern deportation hearings themselves – especially for those who often are faced not only with language and cultural differences, but also the formidable challenge of severe mental disorder.
As America waits for the U.S. Supreme Court to hear oral arguments in, and decide on, the constitutionality of the Patient Protection and Affordable Care Act of 2010 (PPACA) in March, state cuts in mental health funding continue unabated in many states throughout the country. As previously mentioned here, the PPACA review undertaken by the Court will not only focus on the constitutionality of the individual mandate but will also examine PPACA’s Medicaid expansion. By expanding Medicaid, PPACA will provide coverage to millions of those living with serious mental illness. PPACA also provides for increased community-based outreach, from changing the waiver laws to awarding grants for new programs, in order to further improve essential services for those living with mental illness.
While many fixate on late March, local governments continue a practice that started a few years ago: slashing funding for mental health services. Just last week, Chicago’s Department of Public Health announced they were closing half of their mental health clinics — disproportionately affecting the city’s African-American and Hispanic populations, according to advocates. Over the last fiscal year, New York has cut its mental health budget by $95 million, and California has by $177 million. According to a new NAMI study released late last year, from 2009 to 2012, four states have slashed their mental health expenditures by more than 30 percent; South Carolina, at the top of the list, has cut funding by nearly 40 percent. Alaska and Nevada — the two states with the highest suicide rates in the country — are both in the top five. In total, “general funds for mental health” are down $1.6 billion overall between 2009 and 2012.
Besides painful, the cuts are likely to be counterproductive: advocates argue that they will actually cost states more in the long run. Ronald Hornberg, director of legal and policy affairs at NAMI recently told ABC news that the cuts are resulting in those in need of services showing up in emergency rooms or prisons, where they are expensively boarded because there is nowhere else for them to go. Eric Lindquist, a clinical therapist at the Chicago Department of Public Health, called the mental health clinics that Chicago has decided to cut, when compared to hospitalizations or incarcerations, “one of the taxpayer’s best bargains.”
At the same time, headlines late last week brought news that 20 percent of Americans were diagnosed with mental illness in 2010 — nearly one in four women and about one in six men. Among other findings, nearly nine million Americans “thought seriously” about suicide in 2010, with over one million attempting to kill themselves. Almost two million teenagers “experienced a major depressive episode.” Those aged 18 to 25 had the highest incidence of illness: nearly 30 percent.
Obviously, the incidence of illness and prevalence of spending cuts nationwide does not bode well for the future of mental health care in this country. Those that depended on the services being cut are left to try and make it on their own, and those who worked for gutted agencies are looking for jobs. And this is why advocates look toward March. The Court’s decision later this year will shape the future of mental health services in this country for years to come — services that, right now, are increasingly endangered nationwide.
In a lawsuit filed last week, his mother, Natalie Moore, alleged that Bell was repeatedly bullied by other students because of his race, “perceived homosexuality,” and “emotional disability,” and that the school corporation was aware of the bullying and did nothing to stop it and prevent his death. Brian Smith, the district’s superintendent, responded this week, denying Moore’s allegations, and argued that “teachers and administrators took multiple steps to assist the student and his family.” Notwithstanding the merit of the lawsuit, this is yet another headline in what has clearly become a nationwide epidemic of bullying. Parents are concerned, schools are scrambling, and state legislatures are eyeing changing the laws: Michigan’s legislature just approved an anti-bullying bill which will likely be signed into law by the governor in the near future.
Mental health services are at the heart of the debate: are schools doing enough to not only prevent bullying, but also to ensure that students have an adequate support system?
Just 125 miles southeast of the Hamilton Southeastern School District, in Hamilton County, Ohio, Oyler School is also receiving public attention. But not because it is the latest in a string of schools marred by alleged bullying incidents; rather, the school on the west side of Cincinnati is a school that has instituted an innovative system that may represent the future.
Just more than a decade ago, Oyler represented much of what was wrong with schools located in impoverished urban areas: more than 80 percent of its students did not reach tenth grade, it had declared an academic emergency, and was the lowest performing school in Cincinnati. Last year, the high school graduation rate was 82 percent, and the attendance rate is now 94 percent. So how did the school turn its fate around so quickly?
Oyler adopted a community-based approach, in which the school persuaded various health care providers to relocate their offices directly at the school. Today, the providers are housed in a full-blown health center, complete with a full-time nurse practitioner and a part-time pediatrician. There is a vision clinic, a dental clinic, and six mental health counselors — including three full-time psychologists. The clinic offers more than just healthcare services: preschool, daycare, and afterschool programs are available. It also assists families in applying for Medicare, attaining bus passes, and even provides dinner to families. Taxpayers do not foot the bill for the services; the school simply reorganizes resources to keep costs down. Of course, poverty still grips the school — 92 percent of children are on subsidized lunches and 112 students are homeless — but the students are having their health needs fully addressed. As a result, Oyler has become a model for other schools in Cincinnati, and officials from Tennessee and New York City have recently visited.
The federal government has picked up on the school-based health center idea. Under the Affordable Care Act, the federal government offered grants to schools to assist in creating and updating school-based health centers like the one at Oyler: these centers bring the services to the students, relocating health services, including mental health services, into schools. After receiving over 350 applications in 2010, the U.S. government awarded $95 million in grant money this past summer to 278 school districts and programs to expand such clinics.
This will build on the amount of school-based clinics that existed nationwide prior to the passage of the ACA. According to the National Assembly on School-Based Health Care, prior to the awards this summer, there were 1900 school-based health centers providing a spectrum of health care services to nearly two million children and adolescents in 44 states and the District of Columbia. School-based health centers offer everything: prescriptions, treatment, education, and screenings.
Additionally, for those wondering how to combat the nation’s growing problem of bullying, three-fourths of the school-based health centers offer mental health services: from completing assessments to crisis intervention to offering therapy. And, with more and more stories like those of Jamarcus Bell dominating national headlines, placing mental health services where they are most needed – our nation’s schools – could be a vital tool in the fight against bullying.
Chris Kenning, Cincinnati’s Oyler Elementary Finds Winning Formula to Fight Poverty, Louisville Courier-Journal, Apr. 23, 2011.
Chris Sikich, Superintendent Says HSE Acted to Prevent Bullying, Indianapolis Star, Dec. 1, 2011.
Dan McFeely, Hamilton Southeastern Sued Over Bullying After Student’s Death, Indianapolis Star, Nov. 29, 2011.
Joy Resmovits, School-Based Health Care Programs Receive $95 Million From Affordable Care Act, Huffington Post, July 14, 2011.
Oyler’s School Based Health Attracts National Attention, Local 12, WKRC Cincinnati, Nov. 29, 2011.
School District Releases Letter Regarding Lawsuit Over Student’s Suicide, Fox 59 News, Nov. 30, 2011.
Suit Links Suicide to School Bullying, Nov. 30, 2011.
The Facts: Funding for School-Based Health Centers Under the Affordable Care Act, National Assembly on School-Based Health Care.
Receiving most of the attention and coverage following the passage of ACA has been the debate over the constitutionality of the individual mandate, in which Congress has required individuals to purchase health insurance. This discussion has grown louder in the wake of the Eleventh Circuit’s Florida v. Health and Human Services decision, which invalidated the individual mandate as exceeding Congressional power under both the Commerce Clause and Taxing and Spending Clause. As mentioned on this blog, that decision, along with the parties’ responses to it, has paved the road to Supreme Court review, likely early in 2012.
But also in the Eleventh Circuit’s decision — and a clear focus of the petitioners’ reply brief filed last week — is a discussion of whether, by expanding Medicaid under ACA, Congress exceeded its spending power. This assertion was rejected by Judge Vinson in the Northern District of Florida, see Florida v. U.S. Dept. of Health and Human Svcs., 780 F.Supp.2d 1256, 1269 (N.D. Fla. 2011), as well as the Eleventh Circuit, see 648 F.3d 1235, 1268 (11th Cir. 2011). The Eleventh Circuit relied on a few determinative factors to reject the argument: (1) Congress has reserved the right to make changes to Medicaid, and the participating states were aware of this possibility; (2) the federal government will pay for nearly all costs of the Medicaid expansion; (3) states have “plenty of notice” to decide whether they want to continue to participate in Medicaid before the changes go into effect; and (4) it is not conclusive that states who do not participate in the new Medicaid lose their funding. Id. at 1267-68.
Putting constitutional concerns aside, petitioners’ argument, if adopted by the Supreme Court early next year, can work to undo much of the good the ACA accomplishes on the ground level, including the ACA’s positive effect on those living with mental illness. Today, according to CMS, Medicaid pays for the mental health services of 58 million Americans. See Mental Health Services Overview, Centers for Medicare & Medicaid Services, available at https://www.cms.gov/MHS/ (last modified Sept. 6, 2011). But according to an interesting Perspective piece in September’s issue of the New England Journal of American Medicine, the ACA would likely result in coverage for at least an additional “3.7 million currently uninsured people with severe mental illnesses and many more with less severe needs for mental health and addiction treatment.” Colleen L. Barry and Haiden A. Huskamp, Moving Beyond Parity – Mental Health and Addiction Care under the ACA, 365 N. Engl. J. Med. 973-975 (Sept. 15, 2011). Further, in addition to mandating that Medicaid benchmark plans and state-based insurance exchanges cover mental health services as part of an essential benefits package, the ACA assists in the coordination and implementation of more community-based services, from changing the waiver laws to assist the states in administering behavioral health services to establishing grants for further community outreach. Id.
So instead of focusing on the individual mandate debate, those in the mental health field should note the Florida petitioners’ other target of attack — Medicaid expansion. Already rejected twice, the ultimate resolution early next year will affect millions of mental health providers as well as those who use their services and will have a profound effect on the administration of mental health services in this country.
In her fascinating article Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder (forthcoming in the Temple Law Review and available on SSRN), Deirdre Smith describes the role that legal considerations–of eligibility for benefits and liability for harm–played in the development of the posttraumatic stress disorder diagnosis, from its earliest roots in the mid-1800s, when the term “railway spine” was coined to describe post-traumatic symptoms in survivors of train accidents, to its eventual inclusion in the Diagnostic and Statistical Manual of Mental Disorders in 1980. Concluding that “[t]he line between law and medicine is not merely blurred in PTSD; it is absent,” Professor Smith contends that courts should consider “PTSD’s development and long-standing association with assigning legal responsibility” when determining whether to admit evidence that a criminal complainant or civil plaintiff was so diagnosed.
As Professor Smith explains, when veterans of the Vietnam War “began to seek treatment and compensation for their persistent psychiatric difficulties, there was no diagnosis that clearly captured their symptomatology.” They were diagnosed with “‘character disorders’ or schizophrenia, either of which would rule out any ‘service-connected’ disability compensation.” It was at least in part a desire to eliminate barriers to care and compensation for these veterans that persuaded the American Psychiatric Association to include the PTSD diagnosis in the DSM-III. And, it worked. “With a diagnosis built around their experiences, veterans [of the Vietnam War] were indeed more successful in obtaining, not only health coverage and disability benefits, but also validation from the United States government itself that they had endured an experience that transformed a ‘normal’ person into one who was ill and in need of care and compassion.” (This history provides an interesting context for the current controversy over the diagnosis of mild traumatic brain injury in veterans of the wars in Iraq and Afghanistan, which I discussed here.)
To be diagnosed with PTSD, individuals must meet a number of criteria. The “A” or “stressor” criterion requires that the person being evaluated have been exposed to a traumatic event. The remaining criteria relate to the existence, duration, and functional significance of symptoms experienced in the wake of, and presumably as a result of, the trauma. Professor Smith focuses on “two contexts in which courts have permitted PTSD, and particularly the A criterion, to take a critical role in establishing liability: (1) to prove that a criminal complainant or civil plaintiff was subjected to a traumatic event, such as child sexual abuse; and (2) in tort cases, to establish liability for [emotional distress in the absence of physical injury].” She argues persuasively against using the diagnosis in these ways. To do so creates a “problem of circularity” because “[c]linicians cannot apply the PTSD diagnostic criteria without opining about the nature, extent, or even the existence of a reported or purported stressor event.” Judicial findings that suggest otherwise notwithstanding, one cannot determine based on a given cluster or presentation of symptoms that an individual has been exposed to a particular traumatic event.
Professor Smith’s article brings to mind the important work that Joan Kaufman and colleagues have done documenting the underdiagnosis of PTSD in the child welfare system. Dr. Kaufman’s data demonstrate the limits of a number of potential sources of information about a child’s trauma history, including the children themselves, their parents, their protective service workers, and their protective service case records. She argues that mental health professionals should use multiple sources to build the complete trauma histories that are key to both accurate diagnosis and effective treatment. Notably, Dr. Kaufman does not suggest that a child’s symptoms be used to divine his or her history. To the contrary, she observes that “[w]ithout knowledge of children’s trauma experiences, trauma-related symptoms can appear to reflect manifestations of other diagnoses.”
Earlier this month, The Hastings Center released a special report “Troubled Children: Diagnosing, Treating, and Attending to Context” that is well-worth reading. Co-authored by Erik Parens and Josephine Johnston, the report carefully and thoroughly addresses the “intense debates” about the increasing number of children in the United States who receive psychiatric diagnoses and psychotropic medications.
The first section of “Troubled Children” discusses the complexities involved in both defining psychiatric disorders and matching individual children to diagnostic categories; the second section discusses available treatments and the evidence base that supports their use. The third and final section of the report, in which the authors suggest reasons “why many children do not receive careful diagnoses, why evidence-based treatments are often not available, and why promising changes to children’s environments are not made,” is the most directly relevant to students and teachers of health law.
Among the reasons discussed are the “imbalance between investments in the development of new pharmacological compared with psychosocial treatments,” that physician visits are brief and often “less frequent than is necessary for optimal treatment management,” that insurance “coverage for psychosocial treatments is often more limited than for medication treatments,” and that “the system is fragmented among primary care physicians, hospitals, and various other mental health providers, with little cross-communication or coordination following referrals and limited interaction with other systems that care for children, including child protective services, juvenile justice, and schools.” Expanding on the fragmentation concern, the authors tell an all-too-familiar story, explaining that “payers are not willing to reimburse professionals for consulting with one another or developing systems that streamline communication and coordinate care. … This leaves families who are committed to psychosocial treatments to identify, access, and navigate them alone.”
In addition to its central text, which is neutral and scholarly in tone, “Troubled Children” includes ten “sidebars,” each written by a different author with an overt advocacy position. One sidebar raises the possibility of “overmedicalization,” a negative consequence of which is that “everything becomes pathologized, turning all human difference into medical problems.” The author of another sidebar objects that “[t]he theory of ‘medicalization’ … makes parents into scapegoats instead of grasping the real problem.” This author notes that she “can’t imagine anyone seriously discussing the role that ‘values’ play in diagnosing cancer or suggesting that medications that shrink cancers are just tools to force people who are different to be like everyone else.”
A third sidebar discusses the correlation between adverse childhood experiences–such as parental mental illness, substance abuse, or criminality, family violence, physical abuse, sexual abuse, and neglect–and adult mental health and function and suggests that “the question whether medications are overused can actually distract us from the other important question: how do we alleviate stress in families?” (Also recommended, this fascinating article from this week’s issue of The New Yorker profiling a pediatrician in San Francisco who hopes to use insights about the relationship between poverty, child development, and health to transform the treatment of survivors of childhood trauma.) The authors of “Troubled Children” make reference to the “other important question” in the conclusion to their report. They write that “[o]ur ethical obligations to children require that we–including policy-makers, educators, medical professionals, and parents–remember that in addition to changing children (by pharmacological or psychosocial means), we have the power to change the contexts in which children are embedded, which can be key to lasting improvements in their mental health.”