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THE MENTAL HEALTH LEGAL ADVISORS COMMITTEE

LEGISLATIVE PRIORITIES

Over the past 25 years, the Mental Health Legal Advisors Committee has fulfilled its statutory mission through participation in the legislative process to promote and advance the legal rights of individuals with mental illness.

The Mental Health Legal Advisors Committee publishes a legislative update in every edition of the Advisor, the most recent of which is displayed below. In this legislative update, you will find summaries of key legislation affecting persons with mental illness. You will also find the status of all relevant bills pending in the legislature, as well as the names of the sponsors and the persons to contact for more information.

For MHLAC's position on legislation mentioned on the website, please contact MHLAC at 617-338-2345.

7/11/04 WARNING: Many of these bill numbers are out of date. This will be rectified soon.

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MHLAC staff testified on March 26, 2001 in support of An Act Providing for Consumer Choice in Long Term Medical Services, also known as the Olmstead Implementation Bill. This legislation would require the Commonwealth to provide people with disabilities on federally funded medical assistance with services in the most integrated setting, as is current law under the Americans with Disabilities Act (ADA). The Senate version of this bill (S. 474) is before the Committee on Health Care. The House version (H. 1030) is before the Committee on Human Services & Elderly Affairs. View the testimony of Jennifer Honig.

MHLAC staff testified on April 4th, 2001 in support of the Human Service Workers Living Wage Bill, S. 118/H. 2469 before the Joint Committee on Commerce & Labor. This legislation would guarantee all employees of agencies that deliver social services or child care under contract with the Commonwealth a wage of no less than $12.89 an hour without health care and $11.89 with health insurance. View the testimony of Jennifer Honig.


OUTPATIENT COMMITMENT

H.B. 3341 An Act Creating Outpatient Commitment Laws for Mentally Ill Persons

The bill proposes a massive expansion of involuntary treatment, calls for a system of outpatient commitment, including significant changes to both the substantive criteria and the procedures for long term civil commitment.

Sponsor: Rep. Kay Khan
Status: Referred to the committee on Human Services and Elderly Affairs Accompanied study order HB 5032, referred to House Rules.
Contacts: Robert Fleischner, Center for Public Representation (413) 586-6024 and Jennifer Honig, Mental Health Legal Advisors Committee (617) 338-2345, ext. 25

MHLAC strongly opposes this bill.

View a letter from Robert Fleischner in opposition to this bill.

CONDITIONAL RELEASE

H.B. 3360 Jurisdiction Over Certain Individuals Including Those on Conditional Release An Act Establishing Judicial

The bill would establish a system of conditional release (in effect, probation) for some individuals who have been committed to facilities after a finding of not guilty by reason of mental illness or defect.

Sponsor: Rep. Michael Cahill
Status: Referred to the committee on The Judiciary. Accompanied study order (H 4280). Referred to House Rules.
Contacts: Robert Fleischner, Center for Public Representation (413) 586-6024 and Jennifer Honig, Mental Health Legal Advisors Committee (617) 338-2345, ext. 25

MHLAC strongly opposes this bill.


CIVIL COMMITMENT

S. 939 An Act relative to the civil commitment process for persons with mental illness.

S. 939 seeks to amend the reform to, in effect, give the petitioning hospital a veto of the location of the hearing. The bill would require that unless the patient, the hospital and the judge all agree, commitment hearing would have to be held at the mental health facility. The law now allows for but does not require the hearing to be held at the hospital and, in fact, most are. However, some courts, including nearly all of the District Courts in Western Massachusetts, almost always hold civil commitment hearings at the courthouse. The experience of these courts convincingly demonstrates that such hearings are practical, efficient, and not contrary to the privacy interests of the persons subject to commitment petitions.

Sponsor: Senator Richard T. Moore

Status: Referred to the commitee on the Judiciary. Reporting time extended until 12/15/01.

Contact: Robert Fleischner, Center for Public Representation (413) 586-6024

Read a letter in opposition to the bill written by Robert Fleischner.

MHLAC opposes this bill.


ACCESS TO MENTAL HEALTH CARE IN CORRECTIONAL FACILITIES

H.B. 3344 - An Act Relative to Mental Health Care

This bill would require that each person, upon arrival at a prison or jail, receive a comprehensive screening by a qualified mental health professional for mental health and substance abuse issues, including the collection of all the inmate's prior mental records. All inmates determined to be in need of mental health services will be provide with access to a level of mental health services at least equivalent to that available in the community. Ultimately, it ensures that this population will receive that amount and quality of mental health services that it needs.

While mental health services are currently offered in our jails and prisons, the level of service, despite the best efforts of those professionals on staff, absolutely fails to meet the mental health needs of that population. It is estimated that roughly 1 in 6 inmates has a mental health problem. In 1997, the Massachusetts Department of Mental Health estimated that over 2,000 seriously mentally ill people were released from custody.

As a Boston Globe editorial noted, "Prisons aren't meant to dispense mental health care, but they must meet the great need for it." The CJPC concurs with this position. Mental illness should be taken seriously - especially for those not in a position to take care of it themselves.


Sponsor: Rep. Kay Khan
Status: Referred to the Human Services and Elderly Affairs Committee. Reported favorably as amended (HB 4804). Referred to House Ways and Means.
Contact: Rep. Kay Khan (617) 722-2140

Read a letter written by Jennifer Honig in support of this bill.

Contact Jennifer Honig, Esq. (617) 338-2345 X25.

MHLAC supports this bill.



H.B. 3741 COMMUNITY RESIDENCY TENANCY ACT

(formerly known as AN ACT ASSURING FAIRNESS FOR CLIENTS OF DMH RESIDENTIAL PROGRAMS)

"CRT-II" Fact Sheet

Sponsors: Representative Anne Paulsen and co-sponsored by Representatives Benjamin Swan, Michael Festa, Ellen Story, Alice Wolf, Gloria Fox, Elizabeth Malia, David Sullivan, Cele Hahn and Ruth Balser

Status: Signed by Governor 8/9/02, Chapter 237.

Situation: Right now the "Community Residence Tenancy" (CRT) Law is in effect as a temporary statute, passed as outside SECTION 308 of the Acts of 1995, the FY 1996 budget act. The problem is that the law, which is working well, "sunsets" on June 30, 2001. If it thereby goes out of effect on that date, the previous state of affairs will return, whereby community residential programs for clients of the Dept. of Mental Health will be able to evict, or threaten to evict, residents without any fair process.

What this Bill Would Do: With some minor modifications, this bill would maintain the CRT law by putting it into the Mass. General Laws -- the permanent, codified statutes of the Commonwealth, where it can also be more easily found.
Substantively, the bill sets out the category of persons in DMH residential programs who are ordinary tenants under landlord-tenant law and who, therefore, cannot be evicted without a court proceeding. For those DMH community residential clients who are not in this category, the bill provides for an administrative procedure so that no client is evicted without basic due process, including --
Posted notice of rights in residence;
Evicting provider must send notice to DMH and client of reasons for eviction and of client's rights to hearing, representation & file inspection;
DMH-assigned hearing officer holds hearing w/in 4-14 days;
Provider must prove substantial violation of written terms of occupancy or threat to well-being of other persons;
Before case is decided, DMH may be called upon to provide extra staffing to program;
Hearing officer decides w/in 10 days and gives notice of appeal rights;
If DMH client loses and is in danger of homelessness, DMH must assist in finding alternative housing.

There are also provisions making clear the various types of congregate housing to which the law does not apply. And finally, parties have a right to go into Superior Court to enforce rights provided in the law.


For more information, please contact Ernest Winsor, Esq. at Mass. Law Reform Institute (617-357-0700 X 330) <EWinsor@GBLS.org> or Jennifer Honig, Esq. at Mental Health Legal Advisors Committee (617-338-2345 X 25) <Jennifer.Honig@email.mhl.state.ma.us>.

View a letter of support on this bill.

MHLAC supports this bill.

S. 701 - An Act Relating to the Establishment of a Public Guardianship Commission

The bill establishes an independent Public Guardianship Commission appointed by the Supreme Judicial Court. The nine-member Commission includes an elderly person, a disabled person, an elderly advocate, a disability advocate and an elderly or human services provider. The Commission may be appointed as guardian, guardian ad litem, conservator, trustee, representative payee or monitor for an indigent, incapacitated person for whom there is no one to serve in this capacity. The bill would go into effect initially as a pilot project serving those in need only in Suffolk County, but it would take effect over time as to other counties.

The Commission will encourage and support families and friends to serve as fiduciaries, with assistance from the Commonwealth, if necessary. It will also promote and support the provision of fiduciary services by local, non-profit organizations, provide extra safeguards for the rights of wards and thereby ensure that every person served is provided with caring, high quality and individualized service at a reasonable cost.

The Commission may be appointed as a fiduciary only when there is no less restrictive way of meeting the needs. Tall decisions of the fiduciary must reflect the individual character, desire and circumstances of the incapacitated person; and the incapacitated person must be allowed to make his or her own decisions to the extent possible.

Sponsors: Senators Cynthia Creem, Brian Joyce and Stephen Lynch and Representatives John Rogers and Patricia Jehlen
Status: Public Hearing date held Apr. 12, 2001 at 1:00pm in Room A-2 , State House. Reported favorably and referred to Senate Ways and Means.
Contact: Ernest Winsor, Esq., of the Mass. Guardianship Task Force at Mass Law Reform Institute (617) 357-7000 x330

MHLAC supports this bill.


H.B. 2194 AN ACT TO ENSURE MENTAL HEALTH CARE QUALITY AND ACCESS

What: The Act prohibits direct and indirect financial incentives to mental health care providers to deny medically necessary care. The Act defines "medically necessary."

Who: The Act is supported by a broad coalition -
· mental health professionals, like National Association of Social Workers, SEIU Local 509, Consortium for Psychotherapy, and Ad Hoc Committee to Defend Health Care
· mental health consumers, like the Mental Health Consumer Initiative
· advocates, like Coalition for the Legal Rights of Persons with Disabilities and CPPAX
· family members, like the Massachusetts Alliance for the Mentally Ill
· state agencies, like the Mental Health Legal Advisors Committee.

Why: Privately-managed care has changed the way health care is delivered in Massachusetts. Insurance companies are making their coverage decisions on the basis of short-term profit rather than the well-being of their insureds. Recent attempts to expand access to mental health care and reform managed care have left loopholes through which the insurers are already striding.

Chapter 141 of the Acts of 2000, for example, prohibits only specific payments to deny specific medically necessary services. Its definition of medical necessity is vague and ultimately determined by the insurers, thereby diminishing the likelihood that the parity bill's goal of increased access to mental health services will not be fully realized. Improvements in appeal procedures realized by Chapter 141 will not remedy this situation. Persons suffering from either acute or chronic mental illness generally do not have the capacity to engage in advocacy efforts.

Mental health professionals and consumers should be deciding the appropriate course of treatment, not stockholders or actuaries. Yet clinical judgment, even that of dedicated caregivers, may be inevitably clouded by a myriad of financial incentives: capitation arrangements, bonuses, salary withholds, risk sharing.

H. 2194 does not prohibit managed care. But it does prohibit the distortion of the final bastion of quality health care - the provider/patient relationship. H. 2194 does not signal a return to the allegedly bad old days of fee-for-service. Rather, it heralds in a return of medical ethics and a new era of responsible, humane management of care.

Status: Accompanied study order HB 4406 in House Rules.


For more information contact:
Susan Fendell, Mental Health Legal Advisors Committee, 617-338-2345 x29
sfendell@email.mhl.state.ma.us
Dr. Paul Ling, Advocates for Quality Care, 617- 472-3125, pkling@aol.com


MHLAC supports this bill.


H. B. 2189 An Act to Review the Delivery of Behavioral Health Services in the Commonwealth

What: The Act establishes an Attorney General-appointed commission to study and make recommendations concerning the Division of Medical Assistance's contracts with any entity, including HMOs, that manage behavioral health services.

Who: The Act is supported by a broad coalition -
· mental health professionals, like National Association of Social Workers, SEIU Local 509, Consortium for Psychotherapy, and Ad Hoc Committee to Defend Health Care
· mental health consumers, like the Mental Health Consumer Initiative
· advocates, like Coalition for the Legal Rights of Persons with Disabilities and CPPAX
· family members, like the Massachusetts Alliance for the Mentally Ill
· state agencies, like the Mental Health Legal Advisors Committee.

Why: Medicaid mental health managed care was an experiment begun in 1992 - an experiment that has never been appropriately evaluated. The "carve-out" portion of this program alone serves over one-half million people. Nevertheless, the Commonwealth has performed very little oversight of the program. Indeed, the lack of basic information was so great that the legislature required the commissioners of DMA and DMH to file quarterly reports to the Ways and Means committees. These documents have been filed up to ten months after the close of the period on which they were reporting and are merely reproductions of contractor reports with no independent analysis of the information.

From the scanty data available, we know that services have been cut while administrative expenses have risen. The amount of outpatient therapy permitted recipients has dropped precipitously. Hospital lengths of stay for adults have decreased. And although managed care tends to rely on medication to mask symptoms, the amount of medication services received by those on medication has decreased, thereby resulting in less oversight of medication efficacy and side effects.

We also know that payments to the private MCOs for administrative services increased at the same time services were cut. What we don't know is if privatized management of mental health care services is in the best interests of consumers and taxpayers. H.2189's review of the processes used to approve and deny services and the Commonwealth's financial arrangements with these contractors will help us determine this.


Status: Reported favorably as amended and referred to House Ways and Means.

For more information contact:
Susan Fendell, Mental Health Legal Advisors Committee, 617-338-2345 x29
sfendell@email.mhl.state.ma.us
Dr. Paul Ling, Advocates for Quality Care, 617- 472-3125, pkling@aol.com

MHLAC supports this bill.


H.B. 3975 An Act Relative to the Confinement of a Prisoner to an Isolation or Disciplinary Unit in a Correctional Institution

This bill would limit periods of disciplinary confinement in departmental disciplinary units (DDUs) to no more than fifteen days, the current limit on other types of isolation imposed by the Department of Correction for discipline. Currently, no limits exist on sentencing to a DDU in Massachusetts. Some individuals have been sentenced to over ten years in DDU. Experts report that confinement in a DDU has essentially the same effect as confinement in other isolation units: potential for severe psychiatric harm, psychotic decompensation, increased likelihood of violence, and interference with the ability to successfully reintegrate with the larger community.

Sponsor: Representative Benjamin Swan

Status: Comittee on Public Safety. Accompanied by study order, H4592.

Contact: Jennifer Honig, Mental Health Legal Advisors Committee (617) 338-2345, ext. 25

View a letter written by Jennifer Honig in support of this bill.

View information on this bill provided by the Criminal Justice Policy Coalition.

MHLAC supports this bill.


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