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New Mental Health Draft Scales Back Controversial Provisions

By Joe Williams, CQ Roll Call

May 20, 2016 -- Under pressure from House Republican leaders to move mental health legislation, Energy and Commerce Chairman Fred Upton of Michigan is circulating a revised draft that would remove several contentious provisions in an effort to gain bipartisan support.

Congressional aides who have seen the draft caution additional changes will likely be made, but that the latest version moves closer toward a Democratic alternative (HR 4435) by Rep. Gene Green, D-Texas.

Democrats strongly opposed the initial legislation (HR 2646) from Rep. Tim Murphy, R-Pa., arguing that it weakened patient privacy protections and would have made changes to the Substance Abuse and Mental Health Services Administration (SAMHA) that they felt would have undermined the agency.

The updated draft makes several concessions that Republicans hope will satisfy Democrats.

The committee initially hoped to hold a full panel markup next week. But since neither Democrats nor Murphy have signed off on the revisions, aides say it is more likely the full committee will take up the measure in June.

Energy and Commerce spokeswoman Jennifer Sherman said conversations over the bill continue every day and that the panel is moving in the right direction.

"Chairman Murphy's bill is of great importance to Chairman Upton and he looks forward to moving the Murphy bill, which will make a real difference in the lives of so many families in need. We are getting closer to delivering meaningful reforms, and look forward to advancing a final bill to the full committee soon," she said in an emailed statement.

Changes from Murphy Bill

Murphy's legislation proposed loosening restrictions in the Health Information Portability and Accountability Act (HIPAA) (PL 104-191) to make it easier for relatives of people with behavioral health conditions to receive confidential patient information if it was considered necessary to protect the individual or the public.

The new draft by Upton drops that provision and instead substitutes language that would make it the sense of Congress that the Department of Health and Human Services should review HIPAA privacy regulations.

Aides expect some language on privacy to make it into the final version.

While the new bill still would establish a position for an assistant secretary for mental health and substance use disorders at the Department of Health and Human Services, the position would not absorb the responsibility of the administrator for SAMHSA as Murphy initially proposed.

A bill circulated in 2014 from Murphy initially had the two positions as separate roles.

The new draft also would scale back a controversial and costly provision to end a limit on Medicaid coverage for inpatient mental health care at institutions.

The new language would codify provisions in a recent Medicaid managed care rule from the Centers for Medicare and Medicaid Services (CMS) that offers matching federal reimbursements to psychiatric hospitals and facilities for less than 15 days a month for patients in managed care plans.

Lawmakers in both chambers had hoped to add such a provision to the mental health bills, but with an estimated price tag of $60 billion over 10 years, the challenge has been paying for it. Senate Finance Chairman Orrin G. Hatch, R-Utah, previously said he was hoping to find funds for it, without specifying how.

A previous law, the Mental Health Parity Act (PL 104-204), mandated that any insurance plans that cover mental health and substance abuse must provide equal benefits for those needs as for physical health care. Murphy's initial bill included language requiring CMS to report on federal investigations into compliance with the law. That language would be scaled down in the version Upton is circulating, which aides say was sent to Democrats last week.

The new version also would reauthorize parts of a fund under SAMHSA that provides grants to address mental health needs of importance to states and other local entities. The program had a fiscal year 2016 budget of $909 million. One of the programs expected to gain continued support under the fund is the National Child Traumatic Stress Network. That organization was established by the federal government to improve care and access to services for traumatized children and their families.

As introduced, Murphy's original bill would provide states with existing assisted outpatient treatment laws a 2 percent increase in block grant funding. Such laws exist in 46 states for court-ordered treatment for mentally ill people, such as those with a history of not taking their medication. That provision was dropped in the new draft.

The new bill would still establish a National Mental Health Policy Lab, which would pursue policy initiatives impacting mental health and substance use. But a provision allowing the lab to use block grants to independently push forward initiatives was removed. 

Senate Republican leaders earlier this month surveyed their party on that chamber's mental health legislation (S 2680) to see if there were any objections to the bill. Congressional aides say several offices expressed concerns, which they expect to slow down the legislation from advancing in the chamber.

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