The New Federal Mental Health Law Takes Baby Steps Towards Needed Relief

The New Federal Mental Health Law Takes Baby Steps Towards Needed Relief

While the Cures Act promises hope to many, much of the law focuses on a framework for future efforts, as opposed to near-term solutions.
Margot Cleveland
By

On Tuesday, President Obama signed into law the Twenty-First Century Cures Act. This overwhelmingly bipartisan law seeks to address several distinct health issues all sharing the desire for a cure.

The Cures Act includes billions in funding for cancer research, Vice President Joe Biden’s Cancer Moonshot. It also funds an array of initiatives designed to fight the escalating problem of drug addiction and the mental health crisis in America. Finally, The Cures Act further modernizes the FDA drug-review process by providing that agency more flexibility, such as allowing it to approve medications based on real-world results and not merely costly and time-consuming clinical trials.

Given the breadth of the $6.3 billion law, there’s been widespread celebration by diverse constituencies.

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While the Cures Act promises hope to many, other than the FDA-related provisions much of the law focuses on a framework for future efforts, as opposed to near-term solutions, such as implementing a fix for the pressing problems of drug addiction and mental illness.

Is More Bureaucracy Really that Helpful?

For instance, the first thing The Cures Act does is establish two new federal positions: An assistant secretary for mental health and substance use and a chief medical officer to assist the assistant secretary. Myriad other sections define the responsibilities of the assistant secretary and chief medical officer, directing them to maintain a system to disseminate research findings, consult with stakeholders, assess the use of performance metrics, develop strategic plans, and report to Congress.

Not that those mandates aren’t important—they are—but only because the previous federal juggernaut made the maggot-infested corpse that calls itself the Veterans Administration seem a veritable Florence Nightingale of management. Earlier this year, writing in support of Rep. Tim Murphy’s Helping Families in Mental Health Crisis Act—portions of which The Cures Act incorporates—the editors of National Review Online highlighted the deficiencies in the then-governing federal mental health bureaucracy:

The agencies responsible for setting federal mental-health policy — the Substance Abuse and Mental Health Services Administration (SAMHSA) and the Center for Mental Health Services (CMHS) — have long focused on treating the many millions of Americans suffering mild mental illness (low-level depression, anxiety, ‘trauma,’ and other, sometimes nebulously defined, conditions) rather than the severely mentally ill, many of whom are dangers to themselves and to their fellow citizens…. For years, SAMHSA has distributed money to grantees without imposing any meaningful requirement that they provide independent evidence of improved outcomes. It has made no difference to SAMHSA whether a program actually makes a difference in reducing suicides or homelessness or repeated hospitalization.

While The Cures Act seeks to address SAMHSA’s incompetency and waste, for those treating and caring for the mentally ill this reorganization and refocus provides only a promise of future help. But for those loving the mentally ill, this hope has been a long-time coming. And given Murphy’s dedication to those affected by mental illness, there is reason for optimism.

Inching Towards Relief

Other provisions of The Care Act likewise only promise a fix for the future. For instance, one often-cited barrier to the mentally ill obtaining treatment comes from the now-familiar, albeit often-misunderstood, provisions about HIPAA, which regulate the sharing of medical information.

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Because the seriously mentally ill often lack the capacity to care for themselves, it is imperative that family members know appointment schedules and medication regiments, but frequently federal regulation locks them out. The Cures Act seeks to address this problem, but rather than remove the HIPAA roadblock, it merely directs the secretary for mental health and substance abuse to update HIPAA’s confidentiality rules and to assure that mental health providers understand the law better.

Hopefully, the new rules will address this problem, but in the meantime the mother of a 40-year-old schizophrenic who doesn’t take his medications and misses his appointments is left stymied in her attempts to help her son.

State Experimentation Provides the Best Hope

While the federal government continues to discuss and study the problem, the grants The Cures Act provides to states and local subdivisions provide the best chance for concrete improvement in the lives of those suffering from drug addiction and mental illness—and their families. That’s because federalism (and subsidiarity) work: When provided the freedom to solve problems, states, counties, cities, and families often find the best solutions. Such is the case for those combating the scourge of drug addiction and mental illness.

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As I highlighted in a previous article, San Antonio is a model for the country. It provides an extensive training program for a mental health policing unit and couples that with local mental health and drug treatment resources. This local experiment has proven extremely successful, and The Care Act helps fund additional efforts in states and localities.

The Care Act also addresses lessons learned by such local efforts. For instance, The Care Act allows funds and treatment (and “drug courts”) for those suffering from both drug addiction and mental illness. Those at the frontlines can testify to the need for this change. Often those with drug addictions also suffer from serious mental illness—a way to “quiet the voices,” by self-medicating.

Segregating funds and treatment options limits program effectiveness. Further experimentation will result in further improvements, and The Care Act provides the foundation for assessing the good and the bad of various treatment approaches and, in turn, improving the lot in life for those suffering from drug addiction or mental illness.

Recognize the Need for ‘Institutionalizing’ Some Patients

A final lesson The Cures Act teaches comes not from what it does but from what it doesn’t do. The Cures Act ignores the reality that for some, community-based treatment is not enough. Longer-term, and potentially permanent, custodial care is needed. As one psychiatrist I spoke with—who unsurprisingly wished to remain unnamed—said, no politician wants to put his name on a bill supporting more “institutionalizing” of the mentally ill. But to turn our eyes from this need leaves this population out in the cold—literally.

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It also consigns those few receiving the unspoken institutional “care” to the vagrancies of competence and conscience of their custodians, shielded from public view.

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This approach is not humane. Just as we need to destigmatize mental illness, we need to take the taboo away from discussing the need (for some) for life-time custodial care, much as such a need exists for those suffering from Alzheimer’s or dementia. This conversation may need to wait for further improvements in the mental health system, but it will be needed.

Hopefully, with passage of The Care Act and the new framework for assessing the mental health system in the United States, that discussion will take place too.

Margot Cleveland is a lawyer, CPA, and adjunct professor for the University of Notre Dame. Cleveland can be reached via email at [email protected] or on Twitter at @ProfMJCleveland.

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