Senators Meeting Quietly On Bipartisan Mental Health Legislation: What’s The Fate Of Rep. Tim Murphy’s Bill?

Sens. Cassidy and Murphy explain their version of Helping Families in Mental Health Crisis Act

 Sens. Cassidy and Murphy explain their version of Helping Families in Mental Health Crisis Act–a companion bill to Rep. Tim Murphy’s legislation (Photo National Journal) 

(3-7-16) A group of Senators are quietly preparing a bipartisan mental health reform bill that they hope to introduce in mid-March in an attempt to get some form of mental health legislation passed this year, according to a news report and D. J. Jaffe, who monitors federal legislation for his website 

Peter Sullivan, a reporter for The Hill, revealed in a March 4th story that the Senate effort is being led by Sen. Lamar Alexander (R-Tenn.), the leader of the Senate Health Committee, along with Democrat Sen. Patty Murray (Wash.) and Sens. Chris Murphy (D-Conn.) and Bill Cassidy (R. La.)  The White House also is reportedly involved in the negotiations.

You might remember that Sens. Murphy and Cassidy had aligned themselves with Reps. Tim Murphy (R.-Pa.) and Eddie Bernice Johnson (D.-Tx.) in the House to get the Helping Families in Mental Health Crisis Act of 2015  passed in both chambers. The Senate bill is S 1945 and the House version is 2646. Although they have the same name and are similar, they are not identical. The American Psychiatric Association has posted a comparison of them here. 

Until the Senators unveil their behind-the-scenes negotiations, no one can be certain how it will impact Murphy’s bill or others currently making their way through the legislative process. But some are worried that the Senate bill could be used to go around Murphy’s bill which has been stuck in the House even though it has 185 co-sponsors — including 50 Democrats and 135 Republicans.

The Pennsylvania psychologist’s bill has been a lightning rod since it was introduced because it calls for major changes in how mental health care services would be delivered in our nation. At a recent breakfast meeting sponsored by the International Bipolar Foundation, Murphy said that he hoped his bill would finally reach the House floor in March. In a recent 60 Minutes interview, House Speaker Paul D. Ryan (R. Wis.) said Murphy’s bill was on his radar.

But all of that was before news of the Senators’ closed door meetings and before eleven House Democrats introduced a bill last month as a Democrat alternative to Murphy’s bill.

This is the second time that Democrats have issued an alternative. During the last Congress, Democrats persuaded the now-defeated Rep. Ron Barber (R-Ariz.) to introduce an alternative Democratic bill to keep Murphy from getting his bill out of the House Energy and Commerce Committee. That strategy, which reportedly came down from Rep. Nancy Pelosi (D-Ca.) in the House Democratic leadership, was successful.

This time around the Democratic leadership has gotten Rep. Gene Green (D-Tx.) to offer its alternative bill. His co-sponsors include: Reps. Diana DeGette, (D-Colo.), (the minority leader of Murphy’s Energy and Commerce subcommittee who often challenged his bill and the witnesses who he brought in to support it) Joseph Kennedy (D-Mass.), Doris Matsui (D.-Ca.), Grace Napolitano, (D-Ca.) and Kathy Castor (D.-Fl.)

Barber’s bill was never intended to become law. It’s only purpose was to stop Murphy’s bill. But Democrats claim their new alternative bill, called the Comprehensive Behavioral Health Reforma and Recovery Act of 2016  (H.R. 4435) is a serious effort.

Murphy began drafting his original legislation after the Newtown shootings in 2012. I  testified at one of the fact finding hearings that he held before the subcommittee that he chairs. Other parents, including Pat Milam and Liza Long, also spoke to the subcommittee about barriers they said kept them from getting their children help. After hearing those complains, Murphy drafted his bill. Among other things, it calls for the federal government to spend its tax dollars on “evidence based” practices that target the serious mentally ill, broader implementation of Assisted Outpatient Treatment, and change HIPAA privacy regulations so that caregivers can have access to limited medical information about a loved one without consent.

The new Democrat alternative would not institute any of those changes. Among its offering is the spending of $20 million to promote Mental Health First Aid, a program that teaches member of the general public how to recognize mental illnesses; the creation of a national crisis care bed registry, greater participation by peers (persons with mental illnesses) in federal programs, and funds for improved communication between caregivers, doctors and patients through such programs as Open Dialogue, a Finland program that focuses on respecting the decision making of the patient.

Murphy has refused to abandon several core changes that he insists must be in any mental health bill and his steadfastness is being speculated as a reason why the Senators might try to go around him. Here are the key sticking points that the Democrats are fighting.

SAMHSA: Murphy went after the Substance Abuse and Mental Health Services Administration repeatedly during his hearings, often accusing it of frittering away tax dollars. Initially, he wanted to shift mental health dollars away from SAMHSA  by putting them into the National Institute of Mental Health budget. But he later compromised and said that he would rein-in SAMHSA’s spending by requiring that all programs be “evidence based.” Murphy further called for the creation of a new job — Assistant Secretary of Mental Health and Substance Abuse Treatment — inside the Department of Health and Human Services, to elevate the importance of mental health care in the federal government. That Asst. Sec. would have to be a medical doctor/psychiatrist if Murphy’s bill became law. (The last political appointee to run SAMHSA was a lawyer and at one point the agency didn’t employe a single psychiatrist.)

The Democrat alternative also calls for creation of an Asst. Sec. but it wouldn’t require that appointee to be a doctor. Instead, it would create an “Office of Chief Medical Officer” — a lesser position inside SAMHSA — that would be run by an M.D. The Democrats would not require programs to be “evidence based” to get funding.

Assisted Outpatient Treatment: Initially, Murphy sought to penalize the five states that don’t already have AOT laws on their books. He later went from a stick-to-a-carrot by saying that no states would be penalized but those who implemented AOT would receive a two percent increase in block grant funds. Analysts estimate that would be about $15 million for AOT care.

Independent studies of assisted outpatient treatment programs have shown that they reduce hospitalization, homelessness and incarceration while lowering the costs of care for people with severe mental illness, according to testimony before Murphy’s subcommittee. The Justice Department and the Substance Abuse and Mental Health Services Administration have deemed such interventions to be effective, evidence-based practices for reducing violence and other crime, according to John Snook, executive director of the Treatment Advocacy Center which backs Murphy’s bill.

The Democrat alternative does not mention AOT and provides no funds for it.

PAIMI: Murphy attacked the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI) after witnesses testified that PAIMI employees had shifted their attention away from investigating abuses in institutions to encouraging states to close hospitals, help patients keep from being involuntarily committed, teach patients how to get discharge from hospitals even if they were psychotic, and lobby against AOT laws. In a compromise, he later agreed to continue to fund PAIMI but wrote in his bill that PAIMI employees would be banned from using their federal funds to lobby public officials and from “counseling an individual with a serious mental illness who lacks insight into their condition on refusing medical treatment or acting against the wishes of such individuals’ caregiver.”

The Democratic alternative does not mention PAIMI.

HIPAA: Murphy original proposed modifying the Health Insurance Portability and Accountability Act, or HIPAA, so that caregivers, including parents, could obtain information about an adult loved one who was hospitalized because of a mental disorder if that caregiver needed information to continue providing care. He later compromised and modified his bill by limiting what information could be shared, whom it could be shared with and when it could be shared — only if needed to protect health, safety and welfare. Personal psychotherapy notes between a doctor and patient would not be shared.

Last week, my friend Liz Szabo, published a wonderful story in USA TODAY about the problems with HIPAA that cited Murphy’s recommended changes and quotes Pat Milam who first told his son’s story in a powerful blog on my webpage in December 2012.

The Democrat alternative does not change current HIPAA law. Instead it would fund a review of the law so that federal regulations could “develop a model program and materials for training health care providers, lawyers, patients and families regarding the circumstances under which, consistent with the HIPAA, the protected health information of a patient can be disclosed with and without a patient’s consent. It would authorize $5 million for fiscal year 2017 and $25 million for the period of fiscal years 2018 through 2023” to accomplish this review.

DANGEROUS CRITERIA: Murphy’s bill would encourage states to add a “need for treatment” standard option to their existing dangerous requirement for involuntary commitment. The Democrat alternative doesn’t mention it.

In addition to Murphy’s bill and the Democratic alternative, there are two other major pieces of legislation in Congress under review.

The Comprehensive Justice and Mental Health Act of 2015 is being pushed through the Senate Judiciary Committee by Sen. Al Franken (D-Minn.). On the House side, it is  HR 1854 and is being shepherded by Reps Doug G. Collins (R-Ga. ) and Rep. Bobby Scott (D-Va.).

The Mental Health and Safe Communities Act of 2015 also is making headway. It is sponsored by Sen. John Cornyn (R-Tx.) and known as S.2002 and Rep. Martha McSally (R-Ariz.) in the House as HR 3722.

I recently testified in favor of Sen. Cornyn’s bill which focuses on providing funds for jail diversion, Crisis Intervention Team Training, mental health courts, and AOT.


About the author:

Pete Earley is the bestselling author of such books as The Hot House and Crazy. When he is not spending time with his family, he tours the globe advocating for mental health reform.

Learn more about Pete.