When we look at the candidate for whom to vote, we look at what they have done in office (or elsewhere): how they have voted, what legislation they have introduced, their record prior to taking office, what have you. Our members of Congress champion their efforts at defending issues on their and their party’s agendas – environmental protection, worker rights, healthcare, reproductive rights, economic stability – though admittedly party identification typically predicts voter choice better than does information about particular policy positions and actions taken on those issues. Having a record on which to stand is considered, if nothing else, better than the alternative, and particularly in an election year (such as this) or in the aftermath of a crisis (e.g., a mass shooting), people look to our members of Congress to do something.
Members of Congress do not engage in implementation. They draft legislation that delegates to administrative agencies (e.g., Health and Human Services, Environmental Protection Agency, etc.) that carry out the complex tasks of implementation by way of rulemaking and enforcement actions, much of which is highly important but lacks the “sexiness” and the visibility of lawmaking except in particularly controversial cases. Such delegation is justified on the grounds not just of the realities of Congress's workload, but also because bureaucrats have the knowledge and technical expertise from which to draw in promulgating regulations (see, e.g., Chevron v. NRDC). Moreover, unlike members of Congress, bureaucrats are not directly accountable to the electorate, making it more difficult to exert political pressure on those engaged in these important tasks of policymaking. When it becomes clear that action must be taken, we often, then, look to Congress whether or not we are doing so correctly, and members have the electoral incentive to introduce and work to pass legislation that allows them to, if not effect policy change, at least pass the buck.
This is dynamic better suited to credit claiming than it is to effecting actual change from the status quo, and an issue that we saw today in the context of the House of Representatives’ passage of HR 2646: The Helping Families in Mental Health Crisis Act, sponsored by Republican Representative Tim Murphy (PA-18). The legislation, sponsored by 207 members, passed with nearly unanimous support with a vote of 422-2.
Its passage is immensely important, and personally I was very pleased to see it passed. The legislation does a number of important things. Among other things, the bill creates the position of Assistant Secretary for Mental Health and Substance Use Disorders to take over the responsibilities of the Administrator of the Substance Abuse and Mental Health Services Administration (SAMHSA), extend mental health programs, expand health information technology activities, change the information transmission permissible between mental health care professionals and caregivers, incorporate evidence-based medicine into care provision, and addresses the shortage of the nation’s psychiatric beds.
Undeniably, these are admirable and important goals. The United States has only 11.7 beds per 100,000 people, when 40 to 60 per 100,000 is considered the appropriate standard of care. Up to 1 in 4 primary patients suffer from depression, with 8.9 million having co-occurring mental health and substance abuse disorders. Depression is the second leading cause of disability globally and the leading cause of disability among 18-44 year-olds in the United States, though fewer than half obtain treatment, in addition to which suicide rates are at a 30-year high. And given the high rate at which those with mental illness also have physical illness, and the highly interactive nature of mental and physical health (both given the stressors of physical illness and the fact that neurological, reproductive, endocrine, and other issues can produce mental health symptoms), it is not difficult to see that failures in this domain of medical treatment is immensely important as a matter of public health and safety, as well as economics.
But is new legislation the answer? I hesitate to say “no” in that if given the choice between voting yes versus no on mental health legislation, it seems that voting yes is unequivocally the better avenue. Yet we already have legislation that fails to be properly enforced. The Mental Health Parity and Addiction Act of 2008 is federal legislation that prevents health insurance companies from providing less favorable coverage for mental health and substance abuse treatment than they do for physical illness. However, insurance denials on the grounds of “medical necessity”) for mental health are considerably higher (29%) than for physical health (14%), and it was determined that 25% of plans appeared to be inconsistent with the legislation.
Further, while the legislation was enacted years ago, it wasn’t until January 2014 that the HHS implemented rules on parity for private insurers, and it wasn’t until March 2016 that it issued rules for federal- and state-funded Medicaid plans covering 72 million low-income Americans, though the new rules will not go into effect for several more months. In a sense, then, we have not yet had any opportunity to evaluate the effectiveness of the rules that were fairly recently promulgated under the legislation that has already been enacted but is not yet being fully enforced.
Concentrating on the enforcement of existing legislation is not as good a move from an election standpoint. It doesn’t make as good a stump speech to discuss putting pressure on bureaucrats to incorporate certain comments into their rules and to promulgate them in a timely manner. But passing new legislation is costly in terms of time and effort, and leads to new discussions of new rules that will then take time to go into effect, and there are good arguments to be made that investing even some of the grants from the new legislation toward enforcing the existing legislation would itself mean a great improvement in the lives of those seeking access to affordable care.
The legislation sponsored by Representative Murphy is hugely important and I’m glad that the House of Representatives had such an immense show of bipartisan support, and I do hope that the Senate follows suit in the companion legislation that is co-sponsored by Senators Chris Murphy (D-CT) and Bill Cassidy (R-LA), the bipartisanship of which reinforces the reality that this is not a Democrat or Republican issue, but rather a public health issue, an economic issue, a human issue. But ensuring the enforcement of existing legislation will give us a better sense of what new legislation should take on that we haven’t previously, and what we can do better with the legislation that we already have in place and the tools we already have.