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.
- 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.