It really wouldn’t be much of a reach to describe the current stalemate between the Senate and the House over mental health parity (MHP) as a blend of Shakespeare’s Hamlet and Camus’, The Myth of Sisyphus (madness is a central theme in Hamlet and perpetual frustration is the core theme of Sisyphus’ adult life). Simply stated, this legislation has evolved into a bewildering array of plots and subplots which now threaten its passage.
A cursory inspection of the ongoing negotiations concerning Senate bill 558 and House bill 1424, indicates that the predictable special interest players have assumed their traditional opposing positions: liberals against conservatives, employers against consumer groups, etc. These usual suspects, while certainly having an impact, are really only providing background noise to the process in this particular case.
If we drill down just a little deeper into the process, we get a better birds-eye view of the road to MHP upon which there are numerous barriers, boulders, and huge potholes that are causing major problems in enacting MHP and are confounding an already dicey situation.
One case in point involves Senator Ted Kennedy (DMA), one of the Senate bill’s sponsors. Senator Kennedy strongly opposes the House version of the MHP bill which his son, Rep. Patrick Kennedy (DRI) sponsors in the House of Representatives. Father against son, a dynamic with which psychologists are very familiar, typically elicits the sort of conflict one would hope would be absent in any area of public policy, but especially in the lawmaking arena. Here we have the forces of a father, a leader with 40 years of Senate experience and a reputation as a legislative pragmatist colliding with his son, a passionate idealist. I won’t even venture into exploring the family dynamics that lie herein, but use your clinical skills to fill in the blanks.
Add to the forgoing facts, a virtual treasure trove for family therapists, the fact that one chamber of the US Congress is fighting for bragging rights with the other and you have a script outline for an NBC Saturday Night Live episode. It is no secret that members of the large unwieldy House feel as if they deserve more respect than they receive, the proverbial Rodney Dangerfield effect (“I can’t get no respect”) in relation to the members of the august body of the Senate. Given their feelings of fierce institutional pride, members of the Senate, even in the best of times, disdain comparison with the House. The tension between the two chambers is older than the Capitol itself.
Interestingly, Republicans in the House have recently adopted a newfound genuine fondness for their Senate Republican brethren, since losing control of the House in 2006. This “fondness” is based on the Senate’s ability to scuttle legislation they, in the House, no longer are able to achieve. This is precisely the situation we are seeing concerning MHP today. The House MHP bill, while offering a couple of generous provisions beyond those of the Senate bill, would simply be dead on arrival in the Senate. The House has recently been forced to accept/swallow the Senate’s language on a number of bills including the Children’s Health Insurance Program (CHIP). Unfortunately, they are feeling the need to exert their autonomy and influence on the MHP bill resulting in very difficult negotiations.
A key to understanding all of this is the fact that in the Senate, to stop debate and to be able to vote on most measures, an agreement of 60 members is required; this is 10 more than a majority. The Senate has had razor thin majorities for the past 20 years and partisanship has never been more pronounced than at this point in time, so a 10-vote majority will require major compromises to even permit a vote to occur in the Senate. The bottom line is that Senate Republicans still have a lot to say about the way the trains are run in that chamber.
On these two issues, the family dynamics of the co-sponsors and the self-esteem/pride issues of the two Houses of Congress, the negotiations around MHP provide us with a textbook illustration of how the influence of politics classically intervenes into the legislative process: “politics” always trumps “substance” in lawmaking. Further, it underscores a basic axiom in lawmaking: facts, while usually a necessary ingredient in legislative advocacy work, are not often sufficient to prevail in the legislative process. The force of sheer politics reigns supreme there.
The above is the story within the story of MHP. Now take a look at a summary of the facts of the case as they stand in mid-December. A compromise parity bill by Senators Domenici, Kennedy and Enzi, S. 558, was passed by the U.S. Senate on September 18th. AAP and the APA Practice Organization (APAPO) strongly support this bill. The bill represents the culmination of a year-long effort in which the APAPO lobbying team was able to positively affect negotiations over the provisions of the bill by using the extensive knowledge they had acquired on the issue since the mid-1990s. APAPO influenced the negotiations to move in a very proconsumer direction. For the first time ever, employer and insurer organizations are backing a parity bill. The effect of this historic change is that conservative senators are far less likely to block the legislation now.
The Senate bill would extend to some 113 million Americans full parity protections similar to those that members of Congress and 8.5 million other Americans have had in the Federal Employees Health Benefits Program since 2001. The bill would close the remaining loopholes of day & visit limits, co-payments, deductibles and other ways in which health plans have discriminated against mental health. It will cover substance use disorders as well. An important feature which APAPO successfully inserted during the negotiation with the Senate and, significantly, was agreed to by both Senators and employers/insurers, was to extend parity to out-of-network (OON) services as well as in-network services. Moreover, the bill preserves the effect of state parity laws on the small and individual markets. When language on the preemption of state laws sought by parity opponents proved unacceptable to state officials in states with strong parity laws, APAPO assisted in the negotiations that led to its deletion. At present, the bill includes the HIPAA-like preemption that allows stronger state parity laws to prevail.
Across Capitol Hill, in the House, the parity bill by Reps. Kennedy and Ramstad, H.R. 1424, has drawn widespread support among House members. Reflecting the more liberal House, their bill is stronger with somewhat broader benefits than S. 558 in a couple of ways and thus draws the opposition of employers and insurers. H.R. 1424 requires coverage of the full DSM and payment for such treatment. Opponents of this broader coverage have sharpened their knives and are employing many tactics to create obstacles for this bill’s passage, including reviving the “jet lag” attack and raising concerns about the cost of endless treatment referred to as the “Woody Allen Syndrome” which confused lawmakers in prior Congresses. It would mandate an out-of-network option, instead of merely requiring parity if OON exists for mental health. It has an earlier effective date than S. 558 which results in higher costs. And, it requires plans to reveal their medical necessity criteria when care is denied and includes further limits on the use of managed care. These provisions are the main subject of negotiations with the Senate. To date, Senate sponsors have made it clear that these controversial House provisions will not be acceptable to the Senate for the reasons stated above.
H.R. 1424 has been approved by the Education & Labor Committee, Ways & Means Committee, and Energy & Commerce Committee. They each reported a slightly different bill so the three must be merged in the House Rules Committee. House lawmakers also are facing challenges in determining where to find the $4 billion in costs associated with the House bill to comply with Paygo rules. The PAYGO rule was created to ensure that neither mandatory spending nor tax legislation increases the deficit. To comply with PAYGO, new mandatory spending programs or tax cuts need to be offset by an equal amount of mandatory spending cuts and/or tax increases. Paygo rules require all legislation to be “deficit-neutral.”
All three of the House committees are expected to help find the $4 billion expense which the bill mandates. The House Ways and Means Committee is most likely to carry the heaviest load because it generally has the responsibility for raising the revenue required to finance the Federal Government. This would be all well and good except for the fact that MHP is not the only health matter which is demanding fiscal resolution at the moment. In fact, the Ways and Means Committee might use its health-related revenue raisers to offset a scheduled cut for physicians under Medicare which is also a critical item on psychology’s legislative agenda, rather than funding the MHP legislation. Lawmakers could also offset some cost by delaying the effective date of the mental health bill (house bill sets 1/1/08 vs. the Senate implementation of a year later). The Senate bill did not identify offsets. Any changes agreed on by the lawmakers in Conference Committee could be added as a manager’s amendment to the House bill before it reaches the floor.
As, I think, you will agree, there are a lot of cooks and a lot of ingredients that go into making this stew, and there are an equal if not greater number of cooks who can spoil it. AAP, APAPO and its coalition partners believe that the most prudent strategy currently is for the House to accept the Senate-passed bill. APAPO has been meeting with Legislative Staffers of Blue Dog Members of Congress (fiscally conservative Democrats who are important swing voters) to urge that they tell the sponsors of the House parity bill that S. 558 is a good bill and that the House should not load up H.R. 1424 with controversial provisions that will cause a deadlock with the Senate. But, so far, it has been slow going for many reasons as outlined above.
At this juncture, there appears to be only one way to get beyond the MHP impasse. With apologies to Jesse “Big Daddy” Unruh, who coined the term, “money is the mother’s milk of politics”, “compromise is the mother’s milk of lawmaking”. During November, House MHP sponsors Patrick Kennedy and Jim Ramstad (R-MN) met with Senate sponsors, Ted Kennedy and Pete Domenici (RNM) to discuss possible compromises. This has been an exceedingly delicate part of the negotiations. All of these players are heavily invested in and committed to MHP. Ramstad and Patrick Kennedy both have personal involvement in the mental health system as consumers. Domenici has a daughter with mental illness. Teddy Kennedy has been a proponent of mental health reform for his entire 40 year Senate career.
It is said that politics is “the art of the possible.” If Congress really wants to enact MHP or any bill for that matter, compromises can and will be made. Compromise lies at the heart of everything in Congress, with or without the threat of Presidential vetoes, as compromises need to be made within parties, between regional groups of members and even between a few stubborn members.
Sometimes the process can get ugly. During the Clinton administration, a dispute between the Republican Congress and the President on the appropriations bills led to a government shutdown. Non-essential government employees were sent home since the money wasn’t appropriated to pay them. Compromise prevailed and the employees were later paid.
The process can be painstaking and grueling in working toward the final goal (all the way to a veto and veto over-ride sometimes) in order for a compromise to take shape. A passionate commitment to a specific piece of legislation like MHP is hardly passionate if you compromise at the start. Your supporters probably would throw you out the window.
Passionate issues are all over Congress lately. The Iraq War, Children’s Health Insurance, and Stem Cell Research, just to name a few that are percolating. Ultimately, all the passion will be compromised, as it should be in a democracy, although compromise is not pleasant for anyone. In fact, it is rare to see both parties completely satisfied with a compromise on legislation. It is inherent to our legislative process. It is how the system works, the essence of a functioning democracy. Of course it could break down and passion could trump compromise (which happened once and resulted in a Civil War). That experience, plus our genuine ability to live with compromise has suited us well so far.
In closing, I fully reject Camus’ central argument in The Myth of Sisyphus which is that life itself is a futile struggle devoid of hope, and that our fate only seems horrible when we place it in contrast with something that would seem preferable. If we accept that there is no preferable alternative, then we can accept our fate without horror. In fact, with regard to the life of MHP, we have every reason to be optimistic that a substantial change will occur in the final law that will be enacted.
I am reasonably confident that we will see MHP enacted most probably in Spring 2008. We must continue to do our part to move the process along by letting our Congressional supporters know that we value their work through our support of their election campaigns. The subplots discussed earlier will ultimately be resolved over time and the details of MHP will be worked out so that we will finally see an end to the health insurance discrimination against those individuals with mental disorders in this country.
Best wishes for the New Year to all.