Mental Health Update: Expanding Services, But Limiting Access

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.

Newtown’s Impact on Mental Health Coverage Under the Affordable Care Act

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.

Recommended Reading (and a Lawsuit to Watch) on Prisoner Physical and Mental Health Issues

• 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.”

Millitary Mental Health and Memorial Day

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.

Lower Cost, But at What Cost?

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.

Recommended Reading

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.

Happy reading!

Illegal Immigrants, Mental Illness and Due Process

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.

Cuts in Mental Health Funding Continue; Supreme Court to Rule

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.

Auditing Studies of Anti-Depressants

Marcia Angell has kicked off another set of controversies for the pharmaceutical sector in two recent review essays in the New York Review of Books. She favorably reviews meta-research that calls into question the effectiveness of many antidepressant drugs:

Kirsch and his colleagues used the Freedom of Information Act to obtain FDA reviews of all placebo-controlled clinical trials, whether positive or negative, submitted for the initial approval of the six most widely used antidepressant drugs approved between 1987 and 1999—Prozac, Paxil, Zoloft, Celexa, Serzone, and Effexor. . . .Altogether, there were forty-two trials of the six drugs. Most of them were negative. Overall, placebos were 82 percent as effective as the drugs, as measured by the Hamilton Depression Scale (HAM-D), a widely used score of symptoms of depression. The average difference between drug and placebo was only 1.8 points on the HAM-D, a difference that, while statistically significant, was clinically meaningless. The results were much the same for all six drugs: they were all equally unimpressive. Yet because the positive studies were extensively publicized, while the negative ones were hidden, the public and the medical profession came to believe that these drugs were highly effective antidepressants.

Angell discusses other research that indicates that placebos can often be nearly as effective as drugs for conditions like depression. Psychiatrist Peter Kramer, a long-time advocate of anti-depressant therapy, responded to her last Sunday. He admits that “placebo responses . . . have been steadily on the rise” in FDA data; “in some studies, 40 percent of subjects not receiving medication get better.” But he believes that is only because the studies focus on the mildly depressed:

The problem is so big that entrepreneurs have founded businesses promising to identify genuinely ill research subjects. The companies use video links to screen patients at central locations where (contrary to the practice at centers where trials are run) reviewers have no incentives for enrolling subjects. In early comparisons, off-site raters rejected about 40 percent of subjects who had been accepted locally — on the ground that those subjects did not have severe enough symptoms to qualify for treatment. If this result is typical, many subjects labeled mildly depressed in the F.D.A. data don’t have depression and might well respond to placebos as readily as to antidepressants.

Yves Smith finds Kramer’s response unconvincing:

The research is clear: the efficacy of antidepressants is (contrary to what [Kramer's] article suggests) lower than most drugs (70% is a typical efficacy rate; for antidepressants, it’s about 50%. The placebo rate is 20% to 30% for antidepressants). And since most antidepressants produce side effects, patients in trials can often guess successfully as to whether they are getting real drugs. If a placebo is chosen that produces a symptom, say dry mouth, the efficacy of antidepressants v. placebos is almost indistinguishable. The argument made in [Kramer's] article to try to deal with this inconvenient fact, that many of the people chosen for clinical trials really weren’t depressed (thus contending that the placebo effect was simply bad sampling) is utter[ly wrong]. You’d see the mildly/short-term depressed people getting both placebos and real drugs. You would therefore expect to see the efficacy rate of both the placebo and the real drug boosted by the inclusion of people who just happened to get better anyhow.

Felix Salmon also challenges Kramer’s logic:

[Kramer's view is that] lots of people were diagnosed with depression and put onto a trial of antidepressant drugs, even when they were perfectly healthy. Which sounds very much like the kind of thing that Angell is complaining about: the way in which, for instance, the number of children so disabled by mental disorders that they qualify for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) was 35 times higher in 2007 than it was in 1987. And it’s getting worse: the editors of DSM-V, to be published in 2013, have written that “in primary care settings, approximately 30 percent to 50 percent of patients have prominent mental health symptoms or identifiable mental disorders, which have significant adverse consequences if left untreated.”

Those who would defend psychopharmacology, then, seem to want to have their cake and eat it: on the one hand it seems that serious mental health disorders have reached pandemic proportions, but on the other hand we’re told that a lot of people diagnosed with those disorders never really had them in the first place.

That is a very challenging point for the industry to consider as it responds to concerns like Angell’s. The diagnosis of mental illness will always have ineradicably economic dimensions and politically contestable aims. But doctors and researchers should insulate professional expertise and the interpretation of maladies as much as possible from inappropriate pressures.

How can they maintain that kind of independent clinical judgment? I think one key is to assure that data from all trials is open to all researchers. Consider, for instance, these findings from a NEJM study on “selective publication:”

We obtained reviews from the Food and Drug Administration (FDA) for studies of 12 antidepressant agents involving 12,564 patients. . . . Among 74 FDA-registered studies, 31%, accounting for 3449 study participants, were not published. Whether and how the studies were published were associated with the study outcome. A total of 37 studies viewed by the FDA as having positive results were published; 1 study viewed as positive was not published. Studies viewed by the FDA as having negative or questionable results were, with 3 exceptions, either not published (22 studies) or published in a way that, in our opinion, conveyed a positive outcome (11 studies). According to the published literature, it appeared that 94% of the trials conducted were positive. By contrast, the FDA analysis showed that 51% were positive. Separate meta-analyses of the FDA and journal data sets showed that the increase in effect size ranged from 11 to 69% for individual drugs and was 32% overall. (emphasis added).

Melander, et al. also worried (in 2003) that, since “The degree of multiple publication, selective publication, and selective reporting differed between products,” “any attempt to recommend a specific selective serotonin reuptake inhibitor from the publicly available data only is likely to be based on biased evidence.” Without clearer “best practices” for data publication, clinical judgment may be impaired.

Full disclosure of study funding should also be mandatory and conspicuous, wherever results are published. Ernest R. House has reported that, “In a study of 370 ‘randomized’ drug trials, studies recommended the experimental drug as the ‘treatment of choice’ in 51% of trials sponsored by for-profit organizations compared to 16% sponsored by nonprofits.” The commodification of research has made it too easy to manipulate results, as Bartlett & Steele have argued:

One big factor in the shift of clinical trials to foreign countries is a loophole in F.D.A. regulations: if studies in the United States suggest that a drug has no benefit, trials from abroad can often be used in their stead to secure F.D.A. approval. There’s even a term for countries that have shown themselves to be especially amenable when drug companies need positive data fast: they’re called “rescue countries.” Rescue countries came to the aid of Ketek, the first of a new generation of widely heralded antibiotics to treat respiratory-tract infections. Ketek was developed in the 1990s by Aventis Pharmaceuticals, now Sanofi-Aventis. In 2004 . . . the F.D.A. certified Ketek as safe and effective. The F.D.A.’s decision was based heavily on the results of studies in Hungary, Morocco, Tunisia, and Turkey.

The approval came less than one month after a researcher in the United States was sentenced to 57 months in prison for falsifying her own Ketek data. . . . As the months ticked by, and the number of people taking the drug climbed steadily, the F.D.A. began to get reports of adverse reactions, including serious liver damage that sometimes led to death. . . . [C]ritics were especially concerned about an ongoing trial in which 4,000 infants and children, some as young as six months, were recruited in more than a dozen countries for an experiment to assess Ketek’s effectiveness in treating ear infections and tonsillitis. The trial had been sanctioned over the objections of the F.D.A.’s own reviewers. . . . In 2006, after inquiries from Congress, the F.D.A. asked Sanofi-Aventis to halt the trial. Less than a year later, one day before the start of a congressional hearing on the F.D.A.’s approval of the drug, the agency suddenly slapped a so-called black-box warning on the label of Ketek, restricting its use. (A black-box warning is the most serious step the F.D.A. can take short of removing a drug from the market.) By then the F.D.A. had received 93 reports of severe adverse reactions to Ketek, resulting in 12 deaths.

The great anti-depressant debate is part of a much larger “re-think” of the validity of data. Medical claims can spread virally without much evidence. According to a notable meta-researcher, “much of what medical researchers conclude in their studies is misleading, exaggerated, or flat-out wrong.” The “decline effect” dogs science generally. Statisticians are also debunking ballyhooed efforts to target cancer treatments.

Max Weber once said that “radical doubt is the father of knowledge.” Perhaps DSM-VI will include a diagnosis for such debilitating skepticism. But I think there’s much to be learned from an insistence that true science is open, inspectable, and replicable. Harvard’s program on “Digital Scholarship” and the Yale Roundtable on Data and Code Sharing* have taken up this cause, as has the work of Victoria Stodden.

We often hear that the academic sector has to become more “corporate” if it is to survive and thrive. At least when it comes to health data, the reverse is true: corporations must become much more open about the sources and limits of the studies they conduct. We can’t resolve the “great anti-depressant debate,” or prevent future questioning of pharma’s bona fides, without such commitments.

*In the spirit of full disclosure: I did participate in this roundtable.

Recommended Reading: “Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder”

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.”

Getting Mental Health Coverage Wrong

Thanks to Frank for inviting me to review Barak Richman, Daniel Grossman, and Frank Sloan’s chapter,  Fragmentation in Mental Health Benefits and Services, in Our Fragmented Health Care System: Causes and Solutions (Einer Elhauge, ed. 2010).  The book is important and provocative.  The chapter on the fragmentation of mental health care couldn’t address a more timely issue.

People with serious mental illness, more than most other patients, struggle with health system fragmentation. As the Institute of Medicine described it,

Mental and substance-use (M/SU) problems and illnesses seldom occur in isolation. They frequently accompany each other, as well as a substantial number of general medical illnesses such as heart disease, cancers, diabetes, and neurological illnesses. *** Improving the quality of M/SU health care-and general health care-depends upon the effective collaboration of all mental, substance-use, general health care, and other human service providers in coordinating the care of their patients. *** However, these diverse providers often fail to detect and treat (or refer to other providers to treat) these co-occurring problems and also fail to collaborate in the care of these multiple health conditions-placing their patients’ health and recovery in jeopardy.

By some estimates, formerly institutionalized people with serious mental illness experience about 25 fewer years of life, mostly due to the effects of treatable physical illnesses such as cardiovascular, pulmonary and infectious diseases.  The effects of this health system fragmentation are experienced notwithstanding parity legislation, and they are felt also by people in the community with less serious mental illness, often because their primary care providers can’t find mental health providers to whom they can refer.

In Fragmentation in Mental Health Benefits and Services, the authors approach mental health system fragmentation by telling a story of the relationship between health insurance structure and income redistribution. The authors address the interrelationship between insurance “carve-outs” for mental health care and the growth of mental health parity laws. They assert that the carve out of behavioral health coverage from medical insurance provokes states to pass mental health parity laws. According to the authors, these parity laws fail to help their “intended” beneficiaries, and instead serve to redistribute resources away from low income and non-White employees.

To make their case, they mine a database of claims data for privately insured North Carolina patients. These claims data allow them to track employees’ (and, presumably, their dependents’) use of mental health services. Along the way, they raise several important issues. For example, they suggest that care provided by mental health providers may not be particularly efficacious. (299) Few would disagree that in most areas of health care — including mental health care — comparative effectiveness research is essential.   In addition, they suggest that access to and benefit from covered services varies by income and race. (298-99) It is undoubtedly true that there are class-based and race-based disparities in access to health care; this is so much discussed, in fact, that it somewhat puzzling that the authors would characterize as a “regularly overlooked question” the fact that “equal insurance and access does not translate into equitable consumption.” (279)

On some points, the authors seem to go a bit beyond their data. First, the authors assert (without citation) that mental health parity is “often” pursued “to benefit low-income and traditionally vulnerable populations.” (284) Many advocates (myself included) have argued for parity as a civil rights matter: as people with physical illness have access to insurance coverage, so should people with mental illness.  Certainly, insurance coverage is most valuable for those without the means to pay for care out of pocket, but that is as true for cardiac care as for mental health care. From this perspective, parity legislation seems no more a redistributive move than any other form of health insurance.

Second, and to distinguish parity legislation from other forms of insurance, the authors establish that the people of color and low-income insureds are less likely than others to take advantage of access to mental health practitioners. (298) Other researchers have pointed out the difficulty vulnerable populations have had gaining access to covered mental health outpatient care, even when their physicians attempt a referral, so this finding is uncontroversial. Does it follow from a finding that low-income people and people of color experience unequal use of and benefit from a covered service, that the coverage is illegitimate and should be curtailed? The logic of this assertion would call into question the continued coverage of cardiac services.  It might, rather, be wise to address the observed shortcomings in access to outpatient services for non-White and low-income patients and to seek the elimination of disparities here as elsewhere in the health finance and delivery system.

Third, the authors examine whether outpatient mental health treatment (as opposed to mental health treatment by primary physicians) is associated with a reduction in the rate of hospitalization for mental health services. They conclude that care from outpatient mental health providers does not reduce the rate of hospitalization for mental health care. (294) The authors here seem to argue that it would be unwise to “fix” the observed inequalities in access for the disadvantaged group, as the lack of association between outpatient mental health care and reduced hospitalization is weak. The authors, however, candidly acknowledge the limitations on using claims data to draw clinical conclusions, noting “unobservable heterogeneity of underlying health status” (294) and the possible “problem of unobserved severity.” (297) That being the case, it might be that the race and income disparities observed in access to outpatient mental health providers has carried though to other aspects of the mental health care system. For example, vulnerable low-income patients and patients of color might be unengaged in care, and therefore suffering with untreated mental health symptoms. Some employees or their dependents might be treated by the parallel public mental health system. It may be, in other words, that low-income people and people of color are poorly served by the mental health care system for reasons that have little to do with the efficacy of outpatient mental health care, notwithstanding their location in a university town.

The fragmentation of care for people with mental illness is an enormous public health and health finance problem. Much research needs to be done to approach the problem from all angles. The authors have done substantial work with an interesting set of claims data, and have creatively drawn links between patterns of usage and mental health outcomes.  As can be said of many forms of mental health treatment, their analysis fails to address the core issues.  But in such a difficult area of research, any advances are welcome.

Cross Posted at Concurring Opinions

Contesting Depression

Social disagreement about the medicalization of experience is intensifying. Psychiatrist Allen Frances complains that the draft DSM is too quick to pathologize grief:

A startling suggestion is buried in the fine print describing proposed changes for the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders — perhaps better known as the D.S.M. 5, the book that will set the new boundary between mental disorder and normality. If this suggestion is adopted, many people who experience completely normal grief could be mislabeled as having a psychiatric problem.

Suppose your spouse or child died two weeks ago and now you feel sad, take less interest and pleasure in things, have little appetite or energy, can’t sleep well and don’t feel like going to work. In the proposal for the D.S.M. 5, your condition would be diagnosed as a major depressive disorder. . . .[This change] would give mentally healthy people the ominous-sounding diagnosis of a major depressive disorder, which in turn could make it harder for them to get a job or health insurance. . . .

Grieving is an unavoidable part of life — the necessary price we all pay for having the ability to love other people. Our lives consist of a series of attachments and inevitable losses, and evolution has given us the emotional tools to handle both.

Moving from the end of life to the beginning, another commentary mentions worries that quiet and listless preschoolers may be pigeonholed as depressed:

Today a number of child psychiatrists and developmental psychologists say depression can surface in children as young as 2 or 3. . . . [But c]lassifying preschool depression as a medical disorder carries a risk of disease-mongering. “Given the influence of Big Pharma, we have to be sure that every time a child’s ice cream falls off the cone and he cries, we don’t label him depressed,” cautions Rahil Briggs, an infant-toddler psychologist at Children’s Hospital at Montefiore in New York.

Though research does not support the use of antidepressants in children this young, medication of preschoolers, often off label, is on the rise. One child psychologist told me about a conference he attended where he met frustrated drug-industry representatives. “They want to give these kids medicines, but we can’t figure out the diagnoses.” As Daniel Klein warns, “Right now the problem may be underdiagnosis, but these things can flip completely.”

Both stories foreshadow larger struggles over the meaning of “health” in risk societies where there is less margin for error or “underperformance” at work or school. Virtually any wealthy New Yorker with small children has a story about the crucial “pre-school interviewing process,” where elite schools can use an hour-long interaction with a child to decide whether or not to accept him or her as a student. On the other end of the income scale, high unemployment means that at-will employees who can’t keep up an adequate reserve of chipper and helpful “can-do” spirit are always at risk of being sacrificed in favor of some member of the reserve corps of unemployed. Business can’t survive if it’s culture is “too nice.” And hiring may end up being driven by whether an “analysis by an organizational psychologist can tell the hirer whether an applicant will have a problem with the manager or team.”

Larger social currents are feeding anxieties about these trends. Some corporate mottos appear to be “get healthy, or else:”

“We have this notion that you can gorge on hot dogs, be in a pie-eating contest, and drink every day, and society will take care of you,” says Harvard Business School Professor Michael E. Porter, who co-authored Redefining Health Care. “We can’t afford to let individuals drive up costs because they’re not willing to address their health problems.”

Hence the wellness fixation at companies as varied as IBM, Microsoft, Harrah’s Entertainment, and Scotts. Employees who voluntarily sign up for such programs often receive discounts on health-care premiums, free weight-loss and smoking-cessation programs, gratis gym memberships, counseling for emotional problems, and prizes like vacations or points that can be redeemed for gift cards.

M. Todd Henderson assures us that “corporate nannies are superior to their state analogs in some cases,” in part because “corporate policies are subjected to more instantaneous feedback from labor markets, which reduces overreaching.” As unemployment climbs and benefits end, that “feedback from labor markets” gets weaker and weaker: employees take whatever job they can find.

What’s the end result of these trends? I can’t predict, but I think Gary Shteyngart’s recent satirical novel provides one template for the workplace of the future. His protagonist, Lenny Abramov, finds that his employer has placed “five gigantic Solari schedule boards” in the office. The boards:

[D]isplayed the names of . . . employees, along with the results of our latest physicals . . . our fasting insulin and triglycerides, and, most important, our ‘mood + stress indicators,’ which were always supposed to read ‘positive/playful/ready to contribute,’ but which, with enough input from competitive co-workers, could be changed to ‘one moody betch today” or ‘not a team playa this month.’ On this particular day . . . one unfortunate Aiden M. was lowered from ‘overcoming the loss of loved one’ to ‘letting personal life interfere with job.’ (57-58)

Ultimately, moods become health problems when they seriously interfere with activities of daily living, including family, work, spirituality, and play. What Shteyngart reminds us is that the demands of work are quite flexible, and always-evolving. Without a robust societal sense of the proper claims of grief and other emotions, economic imperatives are likely to shrink them inexorably. Unlike the film Gattaca, where extant social structures somehow persist in the wake of massive changes in enhancement technology, Shteyngart’s novel describes a world where relatively small changes in self-concept, media use, and aspiration in an elite can fundamentally destabilize societal expectations.

Given the current balance of power between labor and employers, the disciplinary impact of new technology is likely to rise. As Hannah Pitkin puts it, if we are not careful, the very tools invented to reduce suffering may end up increasing it, by making authorities less tolerant of human need:

We have developed astonishing techniques of communication, persuasion, indoctrination, organization. . . . Yet these extraordinary capacities somehow have not made people happy or free or even powerful. . . . We do not direct these, our alleged powers; if anything, they direct us and determine the conditions of our lives, developing with a momentum of their own in ways we cannot foresee and that are often obviously harmful to human life and civilization

The contestation of pre-school and post-death depression concerns fundamental questions about what it means to be human. Circumstances need to be better engineered to accommodate the normal range of human experience. Otherwise a Procrustean drift will result in humans better engineered to to accommodate their circumstances. As Jaron Lanier has written, “When people are told that a computer is intelligent, they become prone to changing themselves in order to make the computer appear to work better, instead of demanding that the computer be changed to become more useful” (36). Perhaps employers without “grief leave” policies should be changed more quickly than employees in search of non-medical solace.

Mental Health Parity and Health Reform

The Interim Final Rules on mental health parity were issued last Friday by the various agencies responsible for the administration of the  Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).  The rules provide interim permanent answers to some of the interpretive questions raised by the MHPAEA.  I’ll provide a couple of early reactions to the rules, and briefly describe why the parity rules in no way lessen the need for broader reform for the benefit of people with serious mental illness.

MHPAEA, effective for large (over 50) public and private health coverage for plan years beginning after October 3, 2009, adds substantial protections for mental health and substance abuse (MH/SA) coverage.  For example, it:

• Prohibits covered plans from imposing deductibles, copayments, and out-of-pocket limits on MH/SA coverage higher than those imposed for medical/surgical coverage;
• Prohibits restrictions on days of hospital coverage and duration/scope of MH/SA treatment beyond limits imposed for medical/surgical coverage; and
• Prohibits exclusion of out-of-network coverage for MH/SA treatment if such exclusions do not apply to medical/surgical coverage.

Advocates have been looking to the rules for clarification of a number of ambiguities in MPAEA.  Two clarifications in the published rules are encouraging.

• Should insurers be permitted to set deductible amounts separately for MH/SA? Some insurers require their members to meet two different deductibles — one for MH/SA, and one for other treatments. The effect is to permit members without behavioral health needs to experience, say, a $500 deductible, while people with behavioral and other health needs experience two such deductibles, for a total of $1,000. These rules forbid this double hit. The agencies acknowledged the lack of guidance in MHPAEA on this question, and the power of arguments on both sides, but explain their determination to enforce a unitary deductible:

Given that the statutory language does not preclude either interpretation, the Departments’ view is that prohibiting separately accumulating financial restrictions and quantitative treatment limitations is more consistent with the policy goals that led to the enactment of MHPAEA.

Translation: the act did not dictate a result, but unitary deductibles advance parity, and dual deductibles continue inequitable treatment.

• How will plans be prevented from continuing disparate treatment through less obvious means such as medical management decisions? Advocates have long been concerned that coverage inequities between behavioral and other health care could persist if aggressively restrictive utilization review systematically restricted MH/SA services under the guise of “medical necessity” or “medical management.” It is relatively easy to prohibit differential copayments and deductibles. It is harder — and more controversial — to attempt to monitor the relative equity of medical management techniques. The agencies have spoken pretty clearly on this issue in requiring equitable use of “nonquantitative” management strategies:

Any processes, strategies, evidentiary standards, or other factors used in applying the nonquantitative treatment limitation to mental health or substance use disorder benefits in a classification must be comparable to, and applied no more stringently than [those] used . . . with respect to medical/surgical benefits in the classification.

The tools must be comparable both facially and in application:

Thus, for example, assume a claims administrator has discretion to approve benefits for treatment based on medical necessity.  If that discretion is routinely used to approve medical/surgical benefits while denying mental health or substance use disorder benefits and recognized clinically appropriate standards of care do not permit such a difference, the processes used in applying the medical necessity standard are considered to be applied more stringently. . ..  The use of discretion in this manner violates the parity requirements for nonquantitative limitations.

Translation: the parity requirement for medical management is not one merely of form, but also of substance.  While the enforcement of this substantive even-handedness may be messy, it furthers the principle of parity in a powerful way.

The parity rule, then, takes some strides toward the enforcement of true parity in health insurance for people with behavioral health needs.   But people with such needs are desperately in need of further health reform for many reasons, a few of which are outlined below:

• Most obviously, people with serious mental illness are often unemployed or underemployed, and therefore are less likely to have employment-based health coverage. If they do not qualify for Medicaid or Medicare, they are often uninsured. Health reform extending coverage to the uninsured is therefore a pressing need for people with MH/SA needs.
• People with severe mental illness also suffer disproportionately from the effects of physical illness. As I’ve previously described, a 2006 National Association of State Mental Health Program Directors report titled Morbidity and Mortality in People with Serious Mental Illness revealed that people with serious mental illness die 25 years earlier than peers without mental illness, and suffer from a great deal of excess illness while alive. Most of the excess mortality and morbidity is due to preventable physical illness, and their poor medical condition is often traceable to poor coordination of their mental and physical care. The care coordination provisions in pending reform bills would go some distance in addressing these coordination and coverage concerns.
• The reform bills, in addition to mandating and facilitating the expansion of insurance, would channel at least much of the expansion through insurance exchanges. Although the proposals vary, exchanges could, as Tim Jost has described be a force for regularizing health plan design, and for promoting transparency in plan offerings for the benefit of all consumers, including those with MH/SA needs.

Our current health insurance system serves people with behavioral health needs rather poorly.  The MHPAEA took beneficial steps for insured people with MH/SA needs, and the interim rules in at least some sections interpret the act rather robustly.  This good news should not blind us to the fact that more comprehensive health reform is absolutely necessary to provide for the broad range of health needs of people with mental illness or substance use disorders.

Reforming Medical Treatment for People with Serious Mental Illness

What group could health reform help most?  The obvious choice (maybe the right one) would be people with no insurance, or lousy insurance.  It is clear that un- or underinsurance is bad for your physical and fiscal health.  How about people in need of skilled nursing care and assistance with activities of daily living?  Some provisions of pending bills would allow these folks to avoid the Hobson’s choice of institutional care or too little care.  But the cohort that might stand to gain the most from reform is the population of people with serious mental illness.

People with serious mental illness have long been known to have excess morbidity and mortality as compared to people without serious mental illness.  Although much of this excess is attributable to “unnatural causes” – e.g., suicide – studies have identified in this population substantially elevated natural causes of illness and early death from conditions such as cardiovascular and respiratory disease.    Some of these conditions are caused or exacerbated by side effects of newer atypical antipsychotics.    Much of this excess morbidity and mortality is preventable, and some causes (e.g., poorly controlled diabetes) could be addressed through sound chronic care management techniques I’ve described in an earlier post.    Inadequate attention to the management of the medical concerns of people with severe mental illness could be a particularly attractive goal of health delivery reform.

The National Association of State Mental Health Program Directors issued a Technical Report last year on this issue.  Its literature review rendered the following judgment:

Recent data indicates that, on average, persons with serious mental illness die 25 years earlier than the general population.  Eighty-seven percent of years of life lost to premature death are due to chronic disease, especially infectious, pulmonary, and cardiovascular diseases, and diabetes.  Cardiac events alone account for more deaths than suicide.

The data are emerging; more work needs to be done to evaluate comprehensively the connection between incidence of severe mental illness and lack of appropriate, coordinated medical care.  Whatever exact relationship is revealed, the situation is clearly dire: the fragmentation of our health care system causes particularly severe problems for people with serious mental illness.  The Association noted that emerging chronic care management techniques offer a way out of this unconscionable mess.  It advocates the adoption and application of patient-centered medical home programs that bring together primary care, mental health care, and care for chronic medical conditions in a patient- and community-centered environment.

The current bills offer some funding for such measures, at least as pilots.  The House bill, for example, contains language supporting Medicaid medical home demonstrations with initial funding tilted to the federal, in order to encourage states to try these programs out.  Let’s hope these and similar measures, which offer hope for the correction of terrible health disparities in a cost effective manner, survive the production of final legislation.