The Evolution of Federal Mental
Health Planning Legislation
Beginning with the passage of Public Law 99-660 in 1986, and continuing through Public Law 101-639 (1990) and Public Law 102-321 (1992), the federal government has mandated mental health planning as a condition for receipt of federal mental health grant funds and has mandated participation by stakeholder groups, including clients and families, in the planning process. The nature of the federal mandate and the state response have evolved over time, and states find themselves in a very different situation in 1994 than in 1986, when the original mandate began. I have attached a copy of a memorandum approved by the Colorado Mental Health Planning Advisory Council, which succinctly states the position of the Council in favor of relaxation of the plan implementation/sanction component of federal mental health planning legislation. However, the focus of this speech is not on advocacy but rather on an understanding of the evolution of the regulatory process itself.
Beginning, then, with PL 99-660, the general goal was enunciated of: "the establishment and . . . implementation of an organized community-based system of care for chronically mentally ill individuals." This goal statement focused on three planning elements: (A) organization of a system, that is, state-wide assurance of continuity of care and state-wide assurance of availability of a full spectrum of needed services; (B) a community-based system, that is, a system in which community-based care is generally preferred over institutional care; and (C) focus on the chronically mentally ill, as opposed to what some advocates have referred to as the "walking worried," or other populations in need of mental health services.
This goal statement was to be implemented by state-by-state development of plans to meet "quantitative targets" which would include: (1) a census of chronically mentally ill individuals in need of service, (2) services to enable such individuals to "gain access to mental health services," (3) "rehabilitation services, employment services, housing services, medical and dental care, and other support services to be provided to chronically mentally ill individuals in order to enable such individuals to function outside of inpatient institutions to the maximum extent of their capabilities," (4) "activities to reduce the rate of hospitalization of chronically mentally ill individuals," and, (5) most specifically of all, "the provision of case management services to each chronically mentally ill individual in the [s]tate who receives substantial amounts of public funds or services," limited only by express permission for each state to define the term "chronically mentally ill individual" under its own state laws and regulations and implicit permission to define "receiving substantial amounts of public funds or services," in the absence of a federal definition. PL 99-660 also provided for (6) consultation with employees of state institutions and public and private nursing homes in order to facilitate the deinstitutionalization mandate and (7) the establishment and implementation of "a program of outreach to, and services for, chronically mentally ill individuals who are homeless." (8) The Quayle Amendment further provided that all of the above-described mandates were subject to "existing state resources." (9) Advisory state mental health planning councils were charged with assisting in the development of the state plans, to assure broad stakeholder consultation and direct communication with each state governor and the federal government about unmet stakeholder concerns.
While PL 101-639 essentially carried forward the mandate of PL 99-660, it added a plan component to deal with the needs of "children with serious emotional and mental disorders," specifying a related plan development requirement for: "a system of integrated social services, educational services, juvenile services, substance abuse services. . . [and] health and mental health services." The 1990 statute also broadened the adult target group from "chronically" to "seriously" mentally ill individuals. The term "health and mental health services" was also added to the general services list (paragraph 3, above). Although a reference to "available treatment options" and "available resources" appeared to continue the intent of the Quayle Amendment in avoiding an unfunded mandate, the reference was only to resources required to gain access to needed services (paragraph 2, above), and the 1990 statute specifically required, for the first time, that the plan: "describe the financial resources and staffing necessary to implement the requirements of such plan," thus indicating at least the possibility that new resources might be required. The special outreach requirement for homeless mentally ill persons was temporarily dropped in favor of a more general outreach mandate.
The enactment of PL 102-321 in 1992 represented a major change, corresponding to the change of responsibility for administration of the law from the National Institute of Mental Health to the newly formed Center for Mental Health Services of the Substance Abuse and Mental Health Services Administration of the Public Health Service, in the Department of Health and Human Services. PL 102-321 continued the basic deinstitutionalization focus, changing the targeted population to: "adults with a serious mental illness or children with a serious emotional disturbance," but continuing the targeting system and insisting upon "quantitative targets" as a part of the planning process. Although the language of the Quayle amendment was removed, the legislation continued to refer to a "description" of: "available services, available treatment options, and available resources. . . to be provided such individuals," thus impliedly ruling out a federal mandate that increased resources be developed. The language of the 1990 statute that limited the reach of the "available resources" language to the resources necessary for targeted individuals to gain access to needed services was removed, reinforcing this conclusion. In the process, the outreach goal of helping unserved or underserved people to gain access to treatment resources fell by the wayside. On the other hand, the 1992 statute continued the requirement for a plan description of "the financial resources and staffing necessary to implement the requirements of such plan, including. . . training." Thus, development of resources remains an implied goal as well, and the training language represents a new mandate.
The key change in 1992 was the provision that the definition of "adults with a serious mental illness and children with a serious emotional disturbance" be established by the Secretary of the Department of Health and Human Services, rather than the states. With definitional flexibility removed as a method of avoiding strict compliance, the 1992 statute went on to require that the plan "describe health and mental health services, rehabilitation services, employment services, housing services, educational services, medical and dental care, and other support services to be provided to such individuals. . . to enable such individuals to function outside of inpatient or residential institutions to the maximum extent of their capabilities. . . ." The only change from PL 99-660 was in the addition of the term "health services," which may not be very significant since the term "medical care" was present from the beginning, and the addition of the term in the 1990 statute appeared to make little difference. But the important change was the application of the mandate to a broader population, defined by the federal definition. Interestingly, no federal definition was proposed for the equally important qualifying term, "receiving substantial amounts of public funds or services."
With regard to case management, the mandate of provision of services to each targeted individual "receiving substantial amounts of public funds or services" remained intact, with another new phase-in date. While the general outreach requirement was dropped, the requirement of a program of outreach to homeless individuals was reinstated, and the 1992 statute tacked on a requirement for outreach to individuals residing in rural areas. The only substantial deletion in the 1992 statute was the requirement of participation of employees of state institutions and nursing homes in the planning process. Finally, the 1992 statute specifically mandated "an estimate of the incidence and prevalence in the [s]tate of serious mental illness among adults and serious emotional disturbance among children," using, of course, the new federal definition and a census methodology to be developed. The census methodology has yet to be developed by the federal government. The 1992 statute also clarified the requirement of sanctions of ten percent if the Secretary determines that a state has not "substantially implemented the plan," in accordance with the timetables set forth in the plan, subject only to a five percent reduction in the penalty if the Secretary determines that the state is "making a good faith effort to implement the plan."
Summary: It looks more like it does now than it did then
To summarize, then, the evolution of the federal mental health planning legislation has been toward:
(1) inclusion of seriously mentally disturbed children and broadening the adult target to adults with serious mental illness, even if not (yet) chronic;
(2) development of a uniform federal definition of the target group, to avoid state-by-state exclusions from the definition (particularly in light of some states' limitation of the definition to individuals actually receiving mental health services, thus essentially avoiding the outreach functions contemplated by the statute, although the equally important qualifying term "receiving substantial amounts of public funds of services" remains undefined);
(3) addition of persons residing in rural areas to the original (and reinstated) special targeted population of homeless persons;
(4) delays in enforcement coupled with reinforcement of the case management mandate -- the single clear service mandate contained in the legislation -- and the attendant (implicit and still undefined) outreach requirement, notwithstanding the reality that many targeted individuals are difficult to locate or to convince to enter into an on-going case management relationship;
(5) (paradoxical) deletion of the general outreach requirement and the requirement of dedication of resources to help the target group to gain access to needed services;
(6) On-going fuzziness in the extent of the support services required to be developed to fulfill the "maximum extent of their capabilities" deinstitutionalization mandate;
(7) deletion of required representation of employees of state institutions and nursing homes; and
(8) addition of a specific training component.
The increased focus on determinations of compliance and potential sanctions for non-compliance, and the administrative changes reinforcing that focus, are perhaps the most significant administrative change for states as they deal with the process, under the aegis of HHS. This has definitely changed the role of state advisory councils in reviewing state plans, realizing that sanctions can ultimately result in a decrease of services to the population for which they are advocating. It has also reinforced a sense that the planning process fosters "paper compliance," rather than real challenge for administrative and institutional change. It may fairly be said that change often has occurred in spite of rather than as a result of compliance with the federal mental health plan implementation mandate.
As a component of federal mental health planning legislation, the creation of planning advisory councils has had perhaps the most significant lasting effect, as the councils have taken up the challenge to advocate for chronically mentally ill people in a multi-disciplinary setting, in which they have been, for the first time in many states, empowered to do more than simply react as stakeholder groups to initiatives from state bureaucracies. They have effectively: "monitored, reviewed, and evaluated the allocation and adequacy of mental health services," as specified in the legislation, reviewing plans and also advocating for modifications of services, securing of funds, and restructuring service delivery, particularly between state and local options for provision of service. See Colorado mission statement, attached, as an example.
Sometimes, as in Colorado, deinstitutionalization plans have been substantially curtailed by the political realities of state legislative funding and local resistance in communities substantially dependent upon state institutions for their economic base. However, the Colorado Mental Health Planning Advisory Council has had a substantial role in continuing to push (or assist) the state bureaucracy toward more consideration of community-based options which may yet stretch mental health dollars in a period of substantial fiscal crisis for the state, following constitutional changes which have made it more difficult to raise additional state funds. Monthly meetings of the advisory council, and effective liaison during a legislative process, have served to moderate difficulties between the advocacy community and the state bureaucracy and have served as a basis for the settlement of litigation involving an underserved population in the City of Denver (Goebel v. Department of Institutions), stimulating the implementation of an "Integrated Plan," contemplating deinstitutionalization of about ten percent of the state hospital population, moderating some aspects of a state proposal for capitation of Medicaid benefits to local communities, restructuring service delivery at both the state and local levels, and searching for additional resources.
Thus, while the implementation/sanction component of federal mental health planning legislation is of dubious import, because of the phenomenon of "paper compliance," the role of planning advisory councils has become critical in obtaining movement to better treatment and more humane coping with limited resources. It is certainly possible that revisions of the statute could enhance that role while minimizing the phenomenon of "paper compliance," and that evolution is devoutly to be hoped for, but the planning function has done its part to "shake up the system," and that is no mean feat.
As the potential for a model plan document, or model plan and data elements as contemplated in the legislation, comes closer to fruition, and as new regulations are being proposed even as reauthorization of the statute is being debated, it is appropriate for advisory councils to reflect with the federal administration on the pros and cons of increased regulation. Such regulation could help or hurt, depending upon the extent of state discretion permitted and the extent to which the process can evolve toward real strategic planning rather than "paper compliance." In particular, the federal government needs to recognize the differences in state constitutional and organizational structures, fiscal options, and stages of deinstitutionalization and development of community resources. We need to deal together constructively with the instability which exists as a result of broader state and federal health care initiatives as well as changes in the individual states reflecting fiscal pressures which are unique to each state. Even as change is inevitable and in many cases positive, it also creates a kind of psychological closedness to options, which federal mental health planning legislation could dissipate if the aspect of sanctions could be de-emphasized. One wonders, for example, whether it is truly productive to have federal mental health planning legislation dictate new goals every year, when often the best goal that can be enunciated is to simply avoid losing ground any further. Shouldn't we consider a longer time horizon? And if so, mustn't we recognize that states cannot commit funds three to five years out? The original PL 99-660 assurance that the obligation of implementation would be qualified by "existing resources," certainly needs to be emphasized if an implementation/sanctions component is to continue at all. That is simply the reality in every state. And given that reality, what is the point of sanctions?
Perhaps most saliently, the federal government needs to examine the three mandates: a comprehensive system of community-based care for the most seriously mentally ill adults and children; maximum feasible deinstitutionalization; and comprehensive outreach and case management. Is mental health planning the best way to achieve these aims, and if so, under what structure of federal oversight? It is my thesis that while mental health planning is indeed an appropriate way to accomplish all of these aims, mandatory plan implementation is a constraint upon true strategic planning and minimizes the actual effectiveness of the planning process. Regulations which further constrain states by imposing restrictive federal interpretations of the statutory mandate could make this situation worse, rather than better. And some ambiguity is helpful. For example, do we really need a federal definition of the extent of required outreach to provide case management services? Do we need to define "case management," define what it means to receive "substantial public funds or services," define required outreach activities, define exclusions for treatment resistance or refusal, set due process protections, etc? I hope not. Rather, in my view, we need to work together to develop strategies to make case management a better and more comprehensive vehicle for addressing unserved and underserved people in need of mental health care and allow the states to work out the details in true strategic planning processes. That would best fulfill the promise of federal mental health planning legislation, as it continues to evolve.