Tuesday, 24 November 2020

H.R. 2646 (Murphy Bill) What does it mean? A survivor’s perspective

sharonBy Sharon Cretsinger (Originally published here)

In this document, I have attempted to summarize all of the sections of this bill by their most important points so that they can be easily understood and referenced.  If someone is interested only in grants, for example, that individual can easily access information about the section of the bill that deals with grants.  At the same time, this is more than an informational document.  I am not a professional policy wonk and the renderings of policy are not intended to be perfect.  They are intended to be comprehensible.  Similarly, the commentary I add at the end of each section is mine alone.  Many will agree or disagree, or some combination thereof.  This summary is written from my perspective, as a former clinician and service user and present survivor of psychiatric atrocities.  It is written for my community of people who feel similarly about the atrocities, abuses and social controls of psychiatry.  I can say that, if I held same positions as this bill’s author, I would be very proud to have written H.R. 2646.  Each section supports and reiterates other sections in a cohesive manner.  Given that I do not hold their positions, I can say it is a very dangerous document, whether or not it passes, because it indicates the directions of force, coercion and dehumanization that my community currently faces.  Particularly, this bill targets not only those persons labeled with a psychiatric diagnosis, but also those who are doubly disenfranchised by being young, old, poor, differently abled cognitively or part of a minority community.

This bill has nine sections that are outlined below, with a bit of commentary on each.

Section 1:  Creates the position of Assistant Secretary for Mental Health and Substance Abuse,

*will report to the Secretary of Health and Human services
*must be a doctor or psychologist
*an increase of carers in MH/SA
*increase in services to children/adolescent and underserved populations
*integration of MH, SA and Primary Care services

—Defines Peer support Specialist

*uses lived experience plus learned skills
*is supervised by licensed professional
*active participant in MH or SA services over past two years
*provides no direct medical services
*provides no services outside of scope of practice

*certification includes hours of formal work or volunteer experience, exams, code of ethics
*certification training includes:

integration of MH/SA w/primary care
scope of practice
crisis intervention
identification & treatment of MH conditions
confidentiality (state & HIPAA)
others to be determine

*skill sets include:

identification of risk indicators/stressors/triggers
de-escalation techniques
suicide prevention
indicators of abuse/neglect
responses to stressors/triggers/indicators
identification of current stage of recovery
ability to explain process to access services
identify when to get help from other professionals
CEU’s annually

—Counties without AOT will have to submit special reports.

Commentary:  SAMHSA is essentially dismantled under this section.  Mental health care is expanded by targeting younger people, as well as communities that, for whatever reason, have been prone to use fewer MH services.  A peer is no longer simply a person with lived experience who wants to use that experience to reach out to others living the same experience.  The peer is now required to have been in treatment for the past two years, so individuals who do not endorse the lifetime recovery model are excluded.  The peer is also trained in essentially the same subject matter as a BSW level Social Worker and is supervised by an independently licensed MH or SA professional.  This will eliminate funding for any completely peer run programs and will also impact the Social Work profession by creating individuals capable of the same work as a BSW at a much lower salary level.  Pressure is placed on states (most states already have an AOT law) and counties to implement AOT.  An additional paperwork burden is placed on those that don’t.

Section 2:  Creates and modifies a variety of grants

—Innovation Grant:  targets screening and diagnosis

—Demonstration Grant:  targets replication of existing evidence based programs

—Early Childhood Intervention Grant:  targets children 0-12 years of age who may have a social or emotional disability in addition to a learning disability  ($600,000/yr. + 1-2 million for longitudinal study)  

—Extend AOT Grant:  20 million to extend AOT programs from 2018 to 2020 (20% for existing programs, 80% for new programs)

—Block Grants to States:  2% increase in MH funding for states with AOT programs

—Workforce Development Grant:  3 million for additional training for primary care doctors, behavioral health screening tools and telemedicine 

—Minority Fellowships:  6 million for increasing BH provider knowledge of recovery in minority populations, covering some graduate education programs to prepare new carers & training for law enforcement and first responders

—Children’s Recovery from Trauma:  re-funds existing programs, $46 million

—Suicide Prevention Technical Assistance Center:  5 million

—Youth and Early Intervention and Prevention Strategies:  screening programs for at-risk youth and post-suicide-attempt follow up (approximately 30 million)

—Mental Health and Substance Abuse Disorders on Campus:  approximately 30 million

—National Suicide Prevention Hotline:  8 million

Commentary:  Here, themes are repeated from section 1, with some being addressed in more detail.  More screening and diagnosis means getting more people into treatment.  Screening children also amounts to not only getting more people into treatment, but getting them in sooner and creating drug customers are dependent on big pharma for not only a part, but most, of their lives.  The additional dollars for a longitudinal study are needed because there is very little research in this area.  Best clinical practices have long stated that it is best to be wary of too much over diagnosis in childhood.  It is believed that the impact of an early psychiatric diagnosis has a profound impact on children over the life span, not only subjecting them to unnecessary stigma and discrimination, but also having the effect of severely limiting their life choices and aspirations.  This legislation calls for children with learning disabilities to be screened for additional “social or emotional” disabilities, effectively targeting those who (may or may not) have cognitive variances for further diagnosis and treatment.  

Mental Health clinicians have always been trained that there are diagnoses of childhood (e.g. ADHD) and adult diagnoses (all SMI) that are not to be given to children for many reasons, including those mentioned above.  Any well (or even poorly) trained clinician would find the idea of diagnosing a child as young as 0 (!) as ridiculous.  It may be that the intention here is not to give adult diagnoses to children, but to assign additional child diagnoses to individuals assigned and Intellectual or Developmental Disability.  This is really just as bad, given that drugging children for these diagnoses is already increasing.  The theme of engaging younger people in treatment is also repeated in the large amount of re-funding given to children’s recovery from trauma programs, as well as new funding for screening at-risk youth, youth who have attempted suicide and services for mental health and substance abuse on college campuses.  

This section of the bill addresses the fact that if it is enacted, many additional carers are going to be needed in the fields of MH and SA.  It expands contacts with professionals in these areas through telemedicine and a National Suicide Hotline.

Section 3:  Creates an Interagency Coordinating Committee

—assists the Assistant Secretary for Mental Health and Substance Abuse

—includes the Director of the National Institute of Mental Health, the Attorney General, the Director for the Center for Disease Control, and other specified individuals

4:  HIPAA and FERPA and Caregivers:  promotes appropriate treatment for the mentally ill by treating their caregivers as personal representatives for purposes of HIPAA privacy regulations

—an individual with an SMI may be an exception under the following circumstances

*information shared is limited to diagnosis, treatment plan, appointment scheduling,
medications, or med related instructions (no psychotherapy notes)
*it is necessary for health and safety
*it will benefit the treatment of an individual who also has a medical diagnosis
*it is necessary for the continuation of treatment
*the absence of the information will lead to a worsening of the condition
*the individuals has diminished capacity to follow the treatment plan and is
in danger of becoming gravely disabled in the absence of treatment

—training with regard to the disclosure is to be provided to the caregiver

—the individual is 18 years of age or over

—caregiver is defined as:  

an immediate family member
an individual assuming responsibility for basic needs
a personal representative by law
a person who can establish longstanding involvement
excludes documented abusers

—and individual with an SMI is defined as:  

18+ years old
having been evaluated, diagnosed or treated
for a mental, behavioral or emotional disorder
that has been determined by a physician to meet
DSM criteria, is of sufficient duration to meet DSM
criteria, results in functional impairment interfering
with one or more major life activities, includes 
Autism or an Intellectual/Developmental Disabilty
if an MH diagnosis is also present

—students (under age 18) are subject to FERPA (Federal Educational Rights % Privacy Act

Commentary:  It is really hard to be emphatic enough about how much this section gives away in terms of privacy and self determination.  Many of the terms and definitions that are thrown around here are highly subjective, poorly defined and open to interpretation by both lay persons and professional providers, especially given that the DSM and psychiatry are known to be subjective practices with no hard science at all behind them.  When is the disclosure of private medical information necessary for health and safety?  How can it be known that not sharing information with a caregiver will lead to the worsening of any condition, let alone a so-called mental illness?  How can it be shown that an individual has diminished capacity to follow a treatment plan, and, more importantly, what about that individual’s right to refuse to follow a treatment plan?

Again, the term caregiver is very loosely defined.  While an “immediate family member” and a “personal representative by law” are pretty obvious, “an individual assuming responsibility for basic needs” and “a person who can establish long term involvement” are not.  As far as excluding documented abusers, I wonder how many abusers are actually documented.  A fair minority, I would guess.  To cite only one example, I believe anyone who has read literature on domestic violence and the rate of reporting would agree.  There are many cases familiar to survivors in which an abusive spouse has subjected their partner to psychiatric treatment as a form of punishment or social control.  An “person who can establish long term involvement” could be almost anyone, including a newly assigned Case Manager whose livelihood depends upon the compliance of the individual with ongoing treatment.  

Similarly, who is the individual with an SMI?  This particular section is particularly ridiculous for its lack of even the basic understanding of subjective clinical standards that are presently in place.  It states that the person must have been “evaluated, diagnosed or treated for mental, behavioral or emotional disorder that has been determined by a physician to meet DSM criteria”.  It goes on to state that the condition “is of sufficient duration to meet DSM criteria”.  If the persona is only evaluated for the condition, it is possible that no diagnosis has been made.  If the condition does not of sufficient duration to meet DSM criteria, there would also be no diagnosis.  

What is a major functional impairment?  Again, this language is very subjective.  Who gets to define what a good life if for someone else?  Does this mean the person is not working and participating in Capitalism to the degree that is deemed useful by our prejudiced and condemning society?  Does it mean they cannot feed themselves?  Including individuals on the Autism spectrum and those who may be differently abled cognitively is problematic as well.  I have written elsewhere that individuals so assigned are already likely to be under some kind of court ordered guardianship and supervision.  Subsequently, they are even more vulnerable to the kinds of force and disenfranchisement detailed throughout this bill.  They are targeted here as adults similarly to the manner in which they are targeted as children under section 2 of this bill.  While both abolitionists and reformers both (often) differentiate individuals assigned these diagnoses from individuals assigned other MH diagnoses for political reasons, it is my unwavering position that “developmental” label assignments fall under a section of the DSM and individuals assigned these diagnoses are a marginalized part of the whole we hope to protect by activities such as opposing this legislation.

Section 5:  Medicare and Medicaid Reforms

—payment for primary care and MH services provided on the same day

—medical assistance for psychiatric inpatients

—coverage for psychiatric drugs

—eliminate 190 day lifetime limit on inpatient psychiatric hospital days (Medicare)

—demonstration programs to improve community MH services (certification of BH agencies)

*staffing, availability/access to services, care coordination
*screening for diagnosis and risk
*patient centered treatment planning
*outpatient MH and SA services
*outpatient Primary Care Physician
*targeted case management
*psychiatric rehabilitation
*peer support/family support
*intensive & community based MH care for members of Armed Forces & Veterans

—no government payments unless the BH clinic is certified

—planning grant and application requirements

—ten states will be selected for 4 year demonstration programs

Commentary:  Some themes are repeated here, while others emerge, keeping in mind that this section is specifically targeted toward government insurance programs.  Paying for MH services to be provided on the same day as primary care services goes along with section 1 as a means to get more people into treatment via their regular doctors.  Elimination of limitations on coverage for psychiatric inpatient days allows for individuals, specifically those on Medicare, to be kept in psychiatric hospitals indefinitely.  Are psychiatric hospitals the new nursing homes?  Are nursing homes the new psychiatric hospitals?  I have written elsewhere about my work in a Behavioral Health Nursing Home facility in which it became apparent to me that Schizoaffective Disorder is the diagnosis of choice for almost every individual incarcerated there.  Psychiatrists charged with the care of individuals in these kinds of facilities, and potentially those charged with the care of individuals in very long term psychiatric hospitals, may be in charge of as many as 3,000 cases.  Schizoaffective Disorder makes a very convenient diagnosis under these conditions because it will justify any drug classed as an atypical anti-psychotic, antidepressant or anti-anxiety agent.  With this diagnosis present, a psychiatrist can justify any combination of these drugs, as well as changes to the amounts and combinations of the drugs without any messy diagnostic updates or changes to treatment plans.  One thing is clear.  This legislation allows for the incarceration and drugging of our elders, seemingly without restriction.

Section 6:  Research:  Funding for the Brain Initiative at NIMH (2016-2020, 40 million each)

—research on determinants of self and other directed violence

—brain research through Advancing Innovative Neurotechnologies Initiatives

Commentary:  This part of the bill, which, obviously, is heavily funded, is meant to strike directly at the heart of the questions around the hard science of mental health.  While physical ailments such as cancer, diabetes and others have measurable biological markers that show up on tests or x-rays, Mental Health Diagnoses and Substance Abuse Disorders do not.  This is the primary and fundamental argument against forced treatment, increased screening and other provisions of this bill.  Four years.  One hundred and sixty million dollars.  Let that sink in.  

Even the most educated and experienced clinicians admit that there is no way to predict violence.  This research will attempt change that dynamic.  High profile cases that have been all over the media serve as an impetus for this research question.  If research can be made to show (and research can be made to show almost anything) that there are predictive factors for violence or neurological markers for various kinds of psychiatric diagnoses, it will be a game changer for Murphy, Torrey, TAC, and for us.  We need to keep a close eye on this research and this money if this bill is passed.

Section 7:  Behavioral Health Technology

—amends existing guidelines for technology based BH and SA services

—extends eligibility for Medicare and Medicaid services w/technology assisted implementation

Commentary:  This part of the bill is pretty straight forward and also supports other sections of the bill.  The aim is to bring more treatment to more people, via technology.  Some examples of BH technology include E-doctor visits and E-counseling.  Again, this has the potential to target disenfranchised populations who may live in poor or rural areas without regular access to a standing clinic.  More people will be brought into contact with these services via technology.  More diagnoses made.  More drugs sold.  More social control through behavioral modification techniques like Applied Behavioral Analysis, Cognitive Behavioral Therapy and Dialectical Behavior Therapy.  And the government insurance programs would be willing to pay for it.

Section 8:  SAMHSA Reorganization and Reforms

—allows for the new Assistant Secretary position

—sets up advisory councils consisting of: at least ½ MH care professionals
*no member may receive or be related to anyone
 receiving a grant
*one member must be from NIMH
*one member must be from another federal agency
*with programs serving a similar population

—peer review:  there must be scientific controls and standards*peer review under this section shall ensure that any research concerning an
intervention is based on scientific controls and standards indicating whether 
the intervention reduces symptoms, improves medical or behavioral outcomes, 
and improves social functioning”

—Protection and Advocacy for individuals with Mental Illness

*prohibits lobbying by systems accepting federal funds to PAIMI
* refrain from lobbying or retaining a lobbyist for the purpose of influencing a        federal, state or local government entity or officer
* no counseling an individual with an SMI who lacks insight into their condition on refusing medication or acting against the wishes of such individual’s caregiver

—ensuring caregivers have access to protected health information

—Protection and advocacy services to focus exclusively on abuse and neglect

—a detailed accounting for each system funded under this title of how funds are spent and from where they are received—Federal, State, Local, Private

—a specific grievance procedure

—ensure access to evidence based treatment

Commentary:  There is some more circling back in this section to support other parts of this bill, with regard to the new Assistant Secretary position and related advisory council.  The most frightening part of section 8, however, are the severe limitations placed on PAIMI advocates.  Not only are the advocates not allowed to be a part of the political process (which at one time was guaranteed to every citizen), they are not allowed to address any advocacy issues other than abuse and neglect.  Further, PAIMI advocates are specifically prohibited from discussing with “individuals who lack insight into their condition” to refuse medication or act against the wishes of their caregivers.  So, we have other sections of this bill loosely defining who has agency to act on their own behalf and who doesn’t.  Now, we have a council that was specifically set up to address the needs and questions of individuals in treatment with its hands tied, except in cases of abuse and neglect.  It is very telling that PAIMI advocates are SPECIFICALLY barred from discussing the refusal of medication, or going against the wishes of their caregivers.  This shows clearly that Murphy’s bill does not anyone refusing treatment, or even talking about refusing treatment.  And there is certainly no government funded way for the individuals who is thinking about refusing treatment to receive support or help in processing this decision.  Neutering the PAIMI councils like this is a clear way that choice and self determination are being taken from individuals in the context of this bill.

9.  Reporting (GAO study on Discriminatory Coverage Limitations)

—MH parity and addiction act of 2008
*non-quantitative treatment limitations
*how to assure compliance
*enforcement, education and coordination activities toward compliance

Commentary:  While many felt the parity act of 2008 was a good thing (I was still in treatment at the time and had to pay many out of pocket expenses for medications and therapy once I had reached a certain “limit” of MH services) it is now being pulled back out of the closet in a completely different context.  It still allows people who want to be in treatment payments equal to those provided for a physical health problem.  But, it also limits treatments that are non-quantitive, limiting choices and appears to be moving toward a stance of “you will get this amount of MH treatment” as opposed to a stance of “you can choose MH treatment up to and equal (in the monetary sense) treatment you would need or choose for another health condition.



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