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Institutional Lien Laws

On Monday, September 13, 2004, the Assembly Family, Women and Children’s Services Committee chaired by Assemblywoman Mary T. Previte (D6) unanimously passed legislation sponsored by Assemblyman Reed Gusciora (D15) that will reform N.J.’s institutional lien laws.  If passed into law, it will:

·         Repeal the institutional lien laws for treatment in state and county psychiatric facilities.  Those who are institutionalized, or their parent/guardian, will still be responsible for payment for treatment, but will not automatically have a lien filed against them.  If someone does not keep up their payment or abide by an agreed upon compromise, as with any other unpaid debt, a lien may be filed against them;

·         create a compromise process that is standardized for individuals, whether they were in a state or county psychiatric hospitals. In other words, if an individual whose income was above the 200% Federal Poverty Level (FPL) finds that they cannot pay what is determined to be owed for their hospitalization, they may ask for a compromise payment process from the state;

·         consumers and parent/guardian of children under 18 will be charged, the same as with any other illness, according to the sliding scale fee schedule used in the Charity Care Program, which is based on income level (below 200% FPL, no payment is required).  Please note: Medicaid does not pay for services in state and county psychiatric hospitals. Medicaid recipients in these instances will be charged according to this sliding scale fee schedule;

·         eliminate existing liens against people formerly confined to state or county psychiatric hospitals, and establish a sliding fee scale based on the Charity Care fee schedule;

·         limit the responsibility to pay for the hospitalization to the person who was hospitalized, or the parent/guardian of a hospitalized child under the age of 18;

·         create the ability of a spouse to set aside assets to be protected and not used to pay the costs for the institutionalized individual.

After deliberating with DHS and the Administration, our coalition concluded that the passage of A779 would be jeopardized if our  original demand, which would eliminate the obligation of consumer or parent/guardian to contribute toward cost of treatment during the period the consumer was on CEPP, remained.  What follows is an excerpt from MHANJ testimony explaining how we came to this decision.

As you are aware, our sponsor and coalition, with the continued help of the Department and the Division, have worked assiduously over the last year to understand the complicated state and federal laws, regulations, and funding streams which impact the current lien laws. We believe that the bill as amended supports the wellness and recovery efforts of  consumers while not impacting federal funds necessary to the operation of the system.  Specifically we have come to the agonizing decision to delete from the bill the provision that prohibits charging consumers while on CEPP status.  It has been confirmed by regional CMS staff that if the state were not allowed to bill these patients, it would stand to loose tens of millions of dollars.  As we look ahead to FY ’06, we know that this would have a crippling effect on DHS.  Forty-four percent (44%) of adults in state psychiatric hospitals are on CEPP status . Pressuring the state to provide community based  recovery services to this group will have to be a battle for another day.  Rest  assured, we will continue to insist that the Department of Human Services live up to its mission of “people first.”.

Now on to the Assembly Appropriations and Senate Health Committees!

Where We Stand

IOC, A Solution to a Host of Problems or a Solution in Search of a Problem?

MHANJ does not support the use of Involuntary Outpatient Commitment (IOC).  IOC is an overly simplistic solution to an extremely complex problem.  Furthermore, it is a dangerous formalization of coercion in the community mental health system.  The practice of forcing consumers to conform to mandated treatment degrades the integrity of the consumer, encourages helplessness, destroys  self-esteem and decreases the hope for recovery and wellness. 

In our travels, we have found people explaining that IOC will be a solution to one, some, or all of the following concerns and   problems:

1.         People with mental illness are violent. 

Proponents of IOC maintain that it will ensure that consumers will comply with treatment and won’t become violent.  The Bellevue Hospital Center Study in NYC found that IOC did not reduce the number of arrests or violent acts committed by  consumers.*  There is no empirical support for the connection between mental illness and violence or dangerousness. Despite sensationalized views of people with psychiatric disabilities as typically dangerous, research show that they are no more  dangerous than the general public.**

      Based on studies done, there is no evidence that untreated mental illness is a determinant for violent behavior. Therefore IOC is not a solution to the concerns surrounding violent consumers. 

2.    It is difficult to access mental health services. 

Proponents of IOC maintain that it will make it easier to access mental health services.  IOC is a method of access to resources that uses the threat of hospitalization as a way to convince consumers to comply with their treatment.  In and of itself, IOC will not expand the pool of resources available.  Without an appropriation and assuming that there will be no increases in administrative costs, all IOC will do is shift the way consumers have to enter the system in order to get treatment involuntarily.

        Most would agree that the mental health system has inadequate services to offer those who need them.  We believe that the answer to the access problem is to increase the amounts and types of services consumers need and want to help them in their recovery efforts.  IOC, in and of itself, will increase access to those involuntarily seeking services, while decreasing it for those seeking treatment voluntarily.

 IOC does not tackle the real problem of access, which is lack of services.
 

3.    People with mental illness lack the ability to make decisions and have no insight into their condition. 

Proponents of IOC assert that it will control the behavior of people with mentally illness so that they will be able get the treatment that they need.  Most people with mental illness are competent to make decisions about their treatment.  According to the MacArthur Treatment Competence Study, “Most patients hospitalized with serious mental illness have abilities similar to persons without mental illness for making treatment decisions. Taken by itself, mental illness does not invariably impair decision making capacities.”  In the Surgeon General’s words, “Typically people retain their personality and, in most cases, their ability to take responsibility for themselves.” 

Consumers should not be falsely likened to someone with Alzheimer’s disease or dementia.  In this instance, the problem has been incorrectly defined. 

4.    People with mental illness are “treatment noncompliant.” 

Proponents of IOC maintain that the expansion of forced treatment will stop “treatment noncompliance”.  But this belief is not borne out by the research.  In fact, researchers have found that forced treatment causes noncompliance. The Well Being Project***, found that 55% of clients interviewed who had experienced forced treatment reported that fear of forced treatment caused them to avoid all treatment for psychological and emotional problems.

Additionally, IOC is a simplistic explanation to what is a very complicated problem.  Consumers are treatment noncompliant for a host of reasons including but not limited to, the system’s lack of services that consumers need and want, undesirable side effects of medications, consumer’s limited financial resources, lack of behavioral health care parity, stigma, and multicultural issues. IOC does nothing to address any of these issues. 

Before we settle on a solution to the problem of “treatment noncompliance,” it is imperative that we first define the problem accurately and completely.

5.    There is a small subgroup of consumers who experience multiple hospitalizations and are not functioning at an optimal level while in the community. 

IOC, as it has been promoted, will change the system of access for the entire consumer population.  If we want to engage a specific population of consumers, we need to understand the problems they face in accessing treatment and living their lives in the community, and then, find solutions specific to their needs. 

Is it worth constructing a punitive and coercive system that will push people away and penalize all people with mental illness, in order to attempt to engage a group for whom the system has failed?

Thumbs Up! 

Consumer Advocates of the Month 

The IOC battle continues.  Thanks to consumer Joe Gutstein and Consumer Provider Association in NJ (CPA-NJ) members, Helen Williams and Patrick Martin,  for accompanying us on visits to legislators in order to put forth the consumer perspective on IOC.

*  Final Report:  Research Study of NYC IOC Pilot Program (at Bellevue Hospital). Policy Research Associates. December 4, 1998.

**  MacArthur Study of Mental Disorder and Violence. New York: Oxford University Press.  2001 

***  The Well-Being Project:  Mental Health Clients Speak for Themselves.  Jean Campbell, Ron Schraiber.  The California Department of Mental Health, Office of Prevention.  Summer 1989.

  Join MHANJ’s Legislative Network!  Contact C. Chin at  973.571.4100 Extension 137