Analysis: Mental Health Care Law Needs Further Improvement

Published July 14, 2017

The federal government is in the process of implementing the Helping Families in Mental Health Crisis Reform Act (HFMHCRA), passed as part of the 21st Century Cures Act, which President Barack Obama signed into law in December 2016.

The new law purports to save the government $5 million over 10 years while striving toward laudable goals: reducing barriers to coordination of care between families and physicians, increasing access to psychiatric care in rural areas and the availability of inpatient beds elsewhere, and increasing funding for research, suicide prevention, and police officer training.

The federal government will probably fall short of many of these goals because of officials’ underappreciation of the laws of supply and demand.

Stats Instead of Beds

For example, the act creates a Center for Behavioral Health Statistics and Quality, which proposes to improve the quality of psychiatric services by increasing data collection and algorithm-driven screening and brief intervention, without increasing the supply of clinicians to meet the newly identified demand for care.

The law promises increased availability of psychiatric beds but not a single new dollar is allocated to build any. New funding is provided for psychiatric inpatient treatment for Medicaid beneficiaries, but a hard cap of 15 days is placed on reimbursement, and payment per day is limited to the rate of pay that would have been allowed under Medicaid capitated rates.

Some patients will no doubt benefit from admissions that last less than two weeks, but for patients who need longer care, which will be a large percentage, this amounts to more underfunded mental health care, which degrades the quality of care for all psychiatric patients. Once again, the government is increasing demand for services without increasing the supply of clinicians.

Ins and Outs

The act encourages the use of intensive community-based services instead of psychiatric inpatient treatment. It is a good idea to prefer treating patients in the outpatient setting over inpatient, when it is possible to do so safely. Unfortunately, this act, like so many others before it, makes this promise without first increasing the supply of outpatient clinicians and without securing adequate funding for community-based services. Good, thorough outpatient services, which are labor-intensive, often cost more than inpatient care.

The bill offers “telepsychiatry” as a solution to the shortage of rural mental health care. Remote care and consultation with primary care physicians may be better than nothing, but these interventions are vastly inferior to face-to-face time with a psychiatrist. Telepsychiatry is an inadequate alternative to the real solution, which is to increase compensation for rural physicians.

Third-Party Price-Fixing

If compensation is increased through the third-party payment system, taxes or insurance premiums must increase. That means encouraging private practice in general and direct-pay models in particular is the best way to go about paying physicians at fair market value. What is really needed is to remove psychiatry from the grip of third-party price-fixing as much as possible.

The law funds new reporting on federal investigations into compliance with mental health parity laws and encourages greater enforcement, but descriptions of the penalties for noncompliance are vague. As mental health parity laws were created to address the problems created by third-party price-fixing, increasing enforcement will only exacerbate the problem. Third-party payers will simply become more creative at finding ways to justify not paying for psychiatric services, which inevitably means more complex systems for reimbursement.

Complexity in payment mechanisms is detrimental to clinical care. Increasing the scope of psychiatric practice free from third-party price-fixing is the best way to achieve the real goal of mental health parity laws, which is to make it easier for persons with mental illness to get timely, excellent psychiatric treatment.

Opening Lines of Communication

The act devotes a section to clarifying the expectations of Congress for communications between psychiatrists and the families of their patients, under the Health Insurance Portability and Accountability Act (HIPAA).

Fear of violating HIPAA has inhibited clinicians from undertaking effective, ordinary communication with families, and thus HIPAA has harmed patient care. This bill clearly establishes the principle that a psychiatrist may communicate with patients’ families—and with other third parties truly in a position to help—if the patient’s judgment is impaired by mental illness, with the patient’s informed consent as much as possible.

As a psychiatrist who does not submit claims electronically and who is thus not covered by HIPAA, I have always practiced this way. It is very useful for Congress to clarify that physicians and other clinicians can communicate with patients’ families and other third parties within the bounds of medical ethics and commonsense clinical necessity.

Red Tape Expansion

A more comprehensive solution to the problem of HIPPA compliance panic disorder, however, would be to abolish this flawed law, which exists almost exclusively to enable data collection and data mining by nonclinical third-party entities.

HFMHCRA creates a whole new system of electronic verification of personal care and home health care visits for patients with a psychiatric illness, ostensibly to track and promote better provision of needed care. This provision seems misguided, imposing new requirements for documentation time and information-technology expenditure on an already underfunded, stressed system of care.

The Helping Families in Mental Health Crisis Reform Act may achieve some good. As its implementation falls short over time, Congress and President Donald Trump should prescribe more market forces and less government management of supply and demand in mental health care.

Dr. Robert Emmons ([email protected]) is a fourth-generation private-practice psychiatrist in Burlington, Vermont, and a policy advisor at The Heartland Institute.

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