HELP Committee focuses on access to mental health services

On January 20, 2016, the Senate Committee on Health, Education, Labor, and Pensions (HELP) heard testimony from four experts in the field of mental health with very different perspectives. The three who had been directly involved with patients all testified, however, that there is a dearth of resources for treatment and that serious needs go unmet.

Penny Blake, R.N., C.C.R.N., an emergency room nurse and Chair of the Advocacy Advisory council of the Emergency Nurses Association, told the committee that people with mental health or substance use conditions comprise about 10 percent of the patients that present to the emergency department at the West Palm Beach hospital where she works. The loud noises and chaotic atmosphere of a busy emergency department can be harmful to a patient who may be hallucinating. Because the hospital does not have a psychiatric ward, patients who are dangerous to themselves or others must be transferred to other hospitals. There are so few beds available that they must be “boarded” in the emergency department. Usually the wait is 12 to 24 hours, but it is not unusual for a patient to wait for four days to be transferred.

The need to isolate and observe patients who may require involuntary commitment also diverts staff from other patients who need care. The emergency room physicians lack the experience and expertise to begin treatment of the psychiatric emergency with appropriate medication. Blake attributed the difficulties in accessing treatment to the insufficiency of treatment providers available and the lack of insurance coverage for psychiatric care.

Brian Hepburn, MD, Executive Director of the National Association of State Mental Health Directors, expressed gratitude for the mental health block grant programs and funding for demonstration projects. For example, he believes that the First Episode of Psychosis program, which now receives a 10 percent set-aside from mental health block grants, will make a significant difference. He noted that treatment of serious mental illness is much more likely to be successful when begun in the early stages of the illness. He asked that Congress modify the Medicaid exclusion of services of institutions for mental disease (IMD) to allow payment for adult stays in IMDs. Hepburn also recommended increasing support for monitoring and enforcement of the laws requiring mental health and addiction parity.

Both Hepburn and William W. Eaton, PhD, Professor in the Department of Mental Health at Johns Hopkins University Bloomberg School of Public Health, told the committee that patients with mental illness or substance use disorder also are at higher risk for physical illnesses, such as heart attacks, stroke, or diabetes. Eaton also emphasized the lack of research and resources dedicated to mental illness, especially with respect to public health interventions that could prevent or alleviate mental illness.

Pending legislation

Finally, Hakeem Rahim, representing the National Alliance on Mental Illness, put a human face on the problem by describing the experience of living and coping with psychosis. Rahim told the committee that S. 1893, the Mental Health Awareness Act, which was recently passed by the Senate and is now pending in the House, was a good start. However, he urged the committee to support S. 1945, the Mental Health Reform Act, sponsored by committee members Bill Cassidy (R-La) and Christopher Murphy (D-Conn). S. 1945 would create an Assistant Secretary of Mental Health and Substance Use Disorders and expand funding for many training and treatment programs.

Highlight on Washington: State to combine medical, retail consumer marijuana outlets

Washington is in the process of restructuring its marijuana regulations to implement the merger of the medical and retail consumer markets. New laws and regulations become effective July 1, 2016. As of that date, the state will operate a cannabis database including individuals whose health care practitioners have  prescribed marijuana for their medical use and their “designated providers,”  individuals age 21 or older who are authorized to buy or grow cannabis for the patient’s use.

A long, strange trip to the new law

Washington legalized the medical use of marijuana or cannabis in 1998 through a citizen initiative. According to the legislative findings in the 2015 Cannabis Patient Protection Act, patients faced difficulties finding a legal supply. The law was amended to allow patients to grow their own cannabis in limited quantities in their own homes or in collective gardens. However, there were no standards for purity or efficacy as ordinarily exist for prescribed medications.

In 2012, Washington passed another citizen initiative allowing the recreational use of marijuana by individuals age 21 and older. This law provided for the regulation and taxation of cannabis, including testing to verify compliance with standards for impurities and THC content. Producers, processors, and retail sellers all must be licensed. This development placed the state in the “untenable position” of having protections for recreational users but not for medical users.

Retail purchase for recreational use

Retail stores licensed to sell cannabis opened in July 2014. They are permitted to sell to anyone age 21 or over up to one ounce of usable marijuana, 16 ounces of marijuana-infused product in solid form, 72 ounces of infused product in liquid form, or seven grams of marijuana concentrate.

In order to sell to patients using cannabis for medical purposes, existing licensed retailers must obtain a medical endorsement to  their licenses. Dispensaries, which were licensed to sell to patients for medical use, may obtain retail licenses and continue to sell either to patients alone or to all lawful purchasers.

Rights of medical users

Patients who are not registered but have been prescribed cannabis by their health care practitioner are permitted to possess more than a retail consumer. As of July 1, 2016, to obtain maximum legal protection, patients will have to permit their health care practitioner to report them to the cannabis database. The practitioner’s report will include the medical condition the patient is treating with cannabis, identify any designated provider, and, if the patient needs a larger amount than the law typically allows for medical use, state the quantity of cannabis that the patient should be permitted to possess. Each patient and each designated provider registered with the database will be issued a “recognition card.”

Patients under the age of 18 may be authorized to use cannabis; their designated provider would be their parent or guardian. Patients between the ages of 18 and 21 may enter cannabis stores but may not consume cannabis on the premises.

As of July 1, 2016, a patient who is registered with the database:

  • may purchase up to three times the amount permitted to recreational users from a licensed retail store, i.e., three ounces of usable marijuana, 48 ounces of solid marijuana-infused product, 216 ounces of a liquid marijuana-infused product.
  • may possess up to or 21 grams of concentrate.
  • may grow cannabis at home for medical use, including may have up to six plants and up to eight ounces of usable marijuana from the plants. The patient’s health care practitioner may recommend that the patient be permitted up to 15 plants and up to 16 ounces of marijuana from the plants.
  • may form a cooperative comprising up to four patients or designated providers to grow cannabis for their medical use.
  • may not be arrested for possession of the permitted amount of cannabis. Presentation of the identification card verifies the immunity from arrest.

Before July 1, 2016, any patient, or after July 1, 2016, any patient who is not registered with the database but has authorization from a health care practitioner:

  • may purchase the amount authorized for recreational users from a licensed retail store.
  • may grow cannabis at home for medical use and possess up to four plants and up to six ounces of cannabis from those plants.
  • may raise the medical authorization as an affirmative defense in court if he or she is arrested for unlawful possession.

Is Louisiana ready to expand Medicaid?

Outgoing Louisiana Governor Bobby Jindal (R) adamantly opposed everything about the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), including Medicaid expansion, and the Republicans in the legislature supported him. Yet, in June 2015, as Jindal began his last months in office, the legislature passed a budget that provided for Medicaid expansion. The Louisiana Hospital Association agreed to an assessment on hospitals to help pay the cost, contingent on the state expanding Medicaid. The bill was veto-proof because it was a legislative resolution, which did not require the governor’s signature. And it had plenty of Republican support.

As Republican legislators anticipated the post-Jindal political environment, they began to consider expansion seriously. In the run-up to the gubernatorial election, all four major candidates, including three Republicans as well as Democrat John Bel Edwards, supported Medicaid expansion in some form. Edwards called for traditional expansion, with no waiver or special conditions.

In November 2015, in a run-off, Louisiana voters elected Edwards. Initially, he said he would expand Medicaid by executive order “on day one.” Although he has retreated from that position, Edwards maintains that Medicaid expansion is “one of his top priorities.”

In early December, the Senate Finance Committee asked the state Department of Health and Hospitals to prepare proposals outlining the state’s options for Medicaid expansion—by January 1, 2016. Edwards assumes the governorship on January 11, 2016.

Challenges ahead

New Orleans news sources report that Governor Jindal has agreed that the Department of Health and Hospitals may provide Edwards and his team with information, but has not directed the agency to be helpful or act with speed. But even when Edwards is in control, the state will face challenges.

One reason that Republicans have come to accept expansion is that the state currently has a shortfall; it lacks the funds to meet the Medicaid expenses in the current year because the state did not appropriate enough money to pay the state’s share. Louisiana’s Medicaid enrollment grew more than was expected even without expansion. With that history, it’s hard to anticipate how many more people will enroll in expanded Medicaid. Estimates range from 230,000 to 500,000.

The state will have to hire additional workers to determine eligibility of the expansion population. Because eligibility is redetermined every year, some of those new workers will  have to be permanent.

Louisiana has traditionally provided hospital services to the poor through centralized charity hospitals in Shreveport and New Orleans. Under Governor Jindal, the state began to decentralize and privatize the charity hospital system. The federal funds it used are scheduled to decrease over the next several years.

Because 2016 is the last year of 100 percent federal funding for expansion, the state must find a way to come up with the required state funds. This, too, is likely to be a challenge.

Update on Tennessee’s Medicaid Woes

In July 2014, Wolters Kluwer reported that Tennessee had turned over all Medicaid eligibility determinations to the federally facilitated marketplace (FFM), HealthCare.gov,  and thousands of applications were in limbo somewhere between the FFM and the state agency. The Tennessee Justice Center and other advocates for the poor had sued TennCare officials to compel them to act on applications and hearing requests. A federal court had ordered the agency to begin to provide hearings for individuals whose Medicaid applications were not acted upon within 45 days. CMS had directed the state to submit a plan to come into compliance with the enrollment requirements of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). What has happened since then?

Pending appeal

State officials appealed the preliminary injunction. According to Tennessee Justice Center attorney Chris Coleman, the Sixth Circuit Court of Appeals heard oral argument recently, and the judges seemed most interested in whether the case was moot because the original plaintiffs had been granted assistance. Another case involving a similar mootness issue is pending at the United States Supreme Court. A ruling could be issued any time, although the Sixth Circuit may be waiting for the outcome of the Supreme Court case.

TennCare’s technical difficulties

In January 2015, TennCare terminated its contract with Northrup Grumman, which had been unable to complete the development of the TennCare eligibility determination system (TEDS) to meet the requirements of the ACA. KPMG submitted a report on the problems with the contractor’s performance, and the agency hired KPMG to help it select the new contractor. No selection has been announced. Under these circumstances, there is no way even to estimate when Tennessee will resume accepting applications.

The application process

Meanwhile, the state continues to require that all Medicaid applications be submitted to HealthCare.gov. According to Coleman, the state has discontinued accepting applications at the county offices. There is now nowhere in the state to submit an application in person. Applications must be submitted online to HealthCare.gov, by phone, or by mail. HealthCare.gov determines the date of the application. After 45 days, HealthCare.gov sends the applications to TennCare. Rather than hold hearings for every applicant whose eligibility has not been determined, TennCare requests any needed information from the applicant and makes a determination within 45 days. The problem of delay is not completely solved, but at least applicants no longer have an interminable wait, he added.

Under the terms of the TennCare waiver, the state does not provide retroactive eligibility for the three months immediately preceding the date of application under 42 C.F.R. sec. 431.914 and Soc. Sec. Act sec. 1902(a)(34). Coleman told Wolters Kluwer that this creates problems for hospitals because they cannot  submit applications for patients on the day they arrive. Without retroactive eligibility,  Medicaid will not pay the hospital bill.  Some hospitals are sending fax transmissions to the TennCare contractor that handles the call center, but TennCare will not permit the contractor to accept applications.

Extension of the waiver

The current TennCare waiver expires June 30, 2016, and the Bureau of TennCare is seeking an extension through June 30, 2021. The agency sought public input on its draft application on November 12, 2015. The pre-application comment period ended on December 14, 2015. There will be additional opportunities for public comment after the application is submitted to CMS. It is possible that CMS will not renew the waiver of retroactive eligibility.