February 5, 1999

By Jay B. Cutler, J.D.
Director
APA Division of Government Relations

As this column is written in mid-January, the likely legislative agenda for the 106th Congress includes key "holdovers" from the previous Congress, not the least of which is the Senate trial of President Clinton. The extent to which the House impeachment and Senate trial of President Clinton affect the new Congress's legislative agenda and nascent efforts by House Speaker Dennis Hastert (R-Ill.) to revive bipartisan cooperation will be seen only over time.

APA's federal legislative priorities also include some holdovers from the previous Congress. These include patient protection legislation, privacy protection, and parity for mental illness-including substance use disorders-treatment. Patient protection collapsed in the wake of House passage last year of a bill that was less than satisfactory from almost everyone's perspective, including APA's. The Senate failed to conduct any serious debate on patient protection legislation; no consensus emerged despite the efforts of a "centrist" coalition, including the Finance Committee's John Chafee (R-R.I.).

Patient Protection

The White House and Democrats in Congress have pledged to make enactment of meaningful patient protection legislation a top priority in the new Congress, but a bipartisan consensus is still elusive, with the dividing line between tough federal standards and a more market-based approach. Given the almost poisonous partisanship in 1998, last year's House bill was probably the best the House could manage at the time and that only because then speaker Newt Gingrich bypassed any semblance of normal House committee procedures just to produce the bill and get it through the House. This year, a key-perhaps the key-will be whether and to what extent the "normal" committee process is reestablished in the House and allowed to work its process in both chambers. Hill insiders already report that key health committees (for example, Commerce, Finance, Ways and Means, Labor) debate and markup offer the best prospects for producing a bipartisan compromise on this complex issue, and the smart money suggests that action, if any, will be this year rather than in the presidential election year of 2000. Indeed, some Hill staff suggest that House legislative action could come as early as next month, but a more likely scenario is House floor consideration in August.

APA continues to support the strongest possible patient protection legislation, including such features as reasonable and clearly defined appeals procedures, peer-level utilization review standards, point-of-service requirements for closed networks, and an end to the ERISA preemption so that managed care organizations and health plans can be sued under state law for malpractice when patient injury or death occurs as a result of their medical decisions (see story on page 1).

Fight for Full Parity

APA will once again renew its push for full parity for mental illness treatment. Just-released data show that only two companies (a total of four health plans) applied for an exemption to the Mental Health Parity Act of 1996 on cost grounds (companies may apply for an exemption if they can demonstrate that the cost of compliance is at least 1 percent). The good news is that so few companies applied for an exemption. The bad news is that some insurers and businesses have apparently rejected the spirit of the parity law by substituting durational limits (that is, day or visit limits) for discriminatory dollar limits, which would otherwise be invalid under the law.

We have already held a series of meetings with House and Senate parity supporters. At press time House supporters (led by Rep. Marge Roukema, a New Jersey Republican) plan to reintroduce a bill to require full parity for mental illness treatment, eliminating discriminatory copayments, deductibles, and day or visit limits. As it did last year, the bill will cover mental illness treatment including treatment for substance use disorders. A "substance abuse only" parity bill was introduced in the House and Senate last year (by Rep. Jim Ramstad [R-Minn.] and Sen. Paul Wellstone [D-Minn.]). One key will be the extent to which congressional supporters of full parity for mental illness including substance abuse treatment and supporters of full parity only for substance abuse can work together in common purpose.

Cost data will continue to be a factor in the legislative debate. It takes no special powers of prognostication to predict that, once the parity struggle heats up, the halls of Congress will quickly be filled with "dueling data" definitively showing that full parity will cost a little or a lot. APA members should be prepared to argue the merits of parity on basic fairness grounds.

Medical Record Privacy

Medical record privacy seems certain to heat up again in 1999. One welcome result of the collapse of patient-protection legislation was that anti-patient, pro-disclosure provisions of the House-passed patient "protection" bill collapsed along with it. APA's efforts to block enactment of the House language also helped secure passage of an amendment to the omnibus spending bill that prohibits the use of any federal funds to implement a national patient identifier. In a similar vein, thanks to APA-requested Congressional intervention, a HCFA administrative action that would have allowed for "routine use" disclosure of medical records in agency antifraud efforts has been at least temporarily halted pending a further study of the issue to address privacy concerns.

While these were welcome and significant accomplishments, the debate over privacy can only intensify in the 106th Congress, since the 1996 Health Insurance Portability and Accountability Act gives Congress until August 1999 to act on confidentiality. Sen. Robert Bennett (R-Utah) introduced a long-awaited revised version of his medical records "confidentiality" bill in the closing days of the 105th Congress. Despite the increased pressure on Congress to act in time for the August deadline, Hill insiders predict that a consensus will be elusive, and the deadline itself will be extended.

Other Issues

These, in brief, are our top priorities. That's not to say they are the only priorities. Other issues for 1999 include but are by no means limited to these:

• Medicare Reform: A report from the National Bipartisan Commission on the Future of Medicare is expected by spring. It's not clear what specific proposals will be recommended, but a good bet is that the commission will urge that Medicare look more like the Federal Employees' Health Benefits Program (that is, lots of choices). One key will be whether the commission will outline a basic required benefits package.



• Health Care Fraud: Expect "fraud and abuse" to be the White House and Congressional mantra throughout the year. The White House has already revived antifraud measures originally proposed last year. Some of these will target mental health care, such as Medicare's partial hospitalization benefit, in the wake of last year's reports of alleged widespread fraud and abuse in some community mental health centers. In a similar vein, legislative proposals are already being drafted to set new federal standards for use of physical and so-called "chemical" restraints in psychiatric hospitals.



• Physician-Assisted Suicide Legislation: Senate sponsor Don Nickles (R-Okla.) vows to bring back his bill to ban physician-assisted suicide by revoking physicians' DEA prescription authority if there is "clear and convincing" evidence that they have written prescriptions to aid suicide. APA, both independently and as part of an overall AMA effort, successfully opposed the legislation last year.

How can you help us represent your interests in what promises to be a pivotal federal legislative year? First and foremost: get involved. A recent and widely respected survey of key Hill staff and members of Congress found that "local constituent contact"-whether by calls, letters, or visits-was the most important factor influencing how representatives and senators voted and what bills they did (or did not) introduce or cosponsor. Your Division of Government Relations will always lobby APA's causes before Congress, but your personal advocacy is crucial. All politics to busy Hill staff and their bosses is local.

We offer a number of resources to assist you. We will soon post a grass-roots manual on APA's Web site. In the meantime, the "Public Policy" section of the Web site provides access to fact sheets, talking points, APA testimony, down-loadable letters, and an e-mail link to your members of Congress to make electronic communication easy as possible. Finally, APA members may sign up for our DGRNet list serve by sending an e-mail requesting DGRNet access, with your APA member number and your e-mail address, to jwalsh@psych.org.

We face many challenges in the months ahead. I look forward to working with you to ensure that psychiatry's voice is clearly heard on Capitol Hill.