Thursday, 24 September 2020

Mental Health in 21st Century Cures: Digging Deeper

21st Century Cures is a massive piece of legislative text. The actual document is a staggering 996 pages, huge portions of which are only minimally or indirectly related to mental health. Yet even the portion of the bill drawn primarily from the Murphy Bill (H.R. 2646), comprising “Division B” of Cures, includes well over 100 subsections and a few hundred pages of legislative text. Here we outline a number of significant changes included in Cures that pertain directly to mental health policy. This is not an exhaustive account of all mental health provisions included in Cures, but an overview of some key plans laid out in Division B of Cures, “Helping Families in Mental Health Crisis.”

  • In TITLE IV: “Strengthening Leadership and Accountability” 

This section establishes a new position, the Assistant Secretary for Mental Health and Substance Use, who will head SAMHSA; this person will take over the duties of the existing SAMHSA administrator. Additionally, a Chief Medical Officer (CMO), who will be required to have some type of experience providing mental health care or substance use treatment, will assist the Assistant Secretary in evaluating programs and promoting “evidence-based practices.” A number of guidelines for the development and monitoring of “strategic priorities.” Overall, this section initiates substantial reorganization of SAMHSA and as well as significant consolidation of power over the ways that funding is allocated and programs are developed.

  • In Title VII: “Ensuring Mental and Substance Use Disorder Prevention, Treatment, and Recovery Programs Keep Pace with Science and Technology” 

This section focuses heavily on the development and proliferation of “evidence-based” programs and practices, establishing a National Mental Health and Substance Use Policy Laboratory (NMHSUPL) that operates within SAMHSA; the NMHSUPL is authorized $14 million in grants to be used for the evaluation, expansion, and replication of “evidence-based” programs.

  • In Title VIII: “Supporting State Prevention Activities and Responses to Mental Health and Substance Use Disorder Needs”

This section includes some revisions to the Community Mental Health Services block grant which can be used by states for the development of community mental health services; for example, states will now be required to specifically describe how the state promotes “evidence-based practices” as well as allowing only one state agency to administer the grant and identify the state’s goals--again consolidating power of distribution of funds.

  • In Title IX: “ Access to Mental Health and Substance Use Disorder Care”

 Most concerning within this portion of the bill are sections 9014 and 9015, pertaining to “Assisted Outpatient Treatment” (AOT) and “Assertive Community Treatment” (ACT) respectively. (For an overview of the rights violations inherent in AOT, see the Bazelon Center’s overview here).Cures expands and extends funding for AOT programs, authorizing $15 million for the development and maintenance of such programs in each year from 2015-2017, $20 million in 2018, $19 million for each year from 2019-2020, and $18 million for each year from 2021-2022.

  • In Title XI: “Compassionate Communication on HIPAA”

This section calls for a “clarification” of HIPAA guidelines pertaining to disclosure of confidential health information to family members in the case that an individual is deemed unable or “unfit” to manage their own care. This is due to apparent “confusion” around permissible practices for providers treating those with “serious mental illness.” In other words, 21st Century Cures does not dictate what this clarification will be and does not explicitly allow the disclosure of health information to family members, but proposes that this “clarification” may indeed allow such practices that violate one’s privacy and autonomy.

  • In Title XIII: “Mental Health Parity”

This section includes a number of parity-monitoring provisions, including guidelines for auditing insurance companies to ensure compliance with parity guidelines. Mental health parity regulations seek to ensure that mental health services are covered by insurance companies just as physical health services are. While perhaps validating the crucial role that mental health plays in overall wellbeing, mental health parity also situates psychiatry as equal or parallel to physical health medicine despite a lack of precision and, frequently, meaningful scientific evidence. Thus, for many, whether or not mental health parity is a worthy goal is contentious topic. Broadly speaking, closely monitored and financially-incentivized compliance with parity regulations marks continued medicalization of mental health care.

  • Pharmaceuticals and 21st Century Cures

One important impact of Cures which does not come specifically from Division B, “Helping Families in Mental Health Crisis,” but which is nonetheless impactful is the loosening of FDA regulation requirements intended to expedite the development and delivery of “innovative” new drugs. It was for this reason that a number of lawmakers spoke out against 21st Century Cures; Elizabeth Warren’s harsh criticisms of the bill highlighted not only the dangerous leeway given to Big Pharma but also the corrupt political motivations of key supporters. Given psychiatry’s close ties with the pharmaceutical industry, emboldening companies in the drug development and approval process threatens to unleash a new wave of poorly understood and insufficiently regulated chemical interventions into the world of psychiatry and “managed care.”



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