The NYSPA Report: New York State Psychiatric Association’s 2011 Legislative Agenda

Presenting the New York State Psychiatric Association’s legislative agenda for the 2011 session in Albany represents more of a challenge than usual because the governor’s budget proposal will be presented after the writing of this report and the printing of this issue of Mental Health News. This is later than usual due to a grace period afforded to a new governor. No matter the lack of budget specifics, we know that NYS faces a projected budget deficit in the range of $10 billion which is likely to result in severe budget cuts to those sectors of the state’s budget for which the largest amounts of money are appropriated. For advocates for persons with mental illness, especially those with serious and persistent mental illness, cuts to the Medicaid program present the greatest concern.

As a consequence of our state’s fiscal crisis, NYSPA’s most important efforts this year will be aimed at preserving the many important accomplishments of recent years, minimizing the adverse impact on what are certain to be targeted service areas, and identifying areas in which savings can be affected while simultaneously improving the mental health system.

Newspaper articles have raised the prospect of an intense focus on the high cost of mental health care, especially the burden of inpatient care for what are often referred to as the “high user” population. It is estimated that NYS Medicaid expends $18 billion on 700 thousand individuals with two or more chronic illnesses; for a large proportion of these persons, mental illness is one of their chronic illnesses. As a result, the state will be looking to “managed care” approaches to lessen the cost. Unfortunately, “managed care” approaches have proven highly problematic in many states when applied to those with “serious and persistent mental illness” (“spmi”). While NYSPA cannot endorse any particular approach to “managing” this group, we do ask that creative approaches such as that being pursued by the New York Care Coordination Program be considered as a clinically better alternative than commercial “managed care” as we have experienced it. As effort is exerted to shift the locus of care from the inpatient to the clinic setting, we suggest that even if clinic services are to be globally ratcheted down that the focus of services in state licensed clinics be those with “spmi.” Furthermore, as clinic restructuring proceeds, we suggest that the state make an effort to maximize reimbursement to clinics while simultaneously leveraging a maximum federal share. Accomplishing this would shore up financially stressed clinics while providing a measure of budget relief for the state. Realizing this goal would require revisiting the coding scheme incorporated in the recent clinic restructuring regulations. Advocacy organizations should also be wary of possible attempts to merge the state’s so called “O” agencies, that is OMH, OASAS, and OPWDD or to invest all rate setting power for Medicaid in DOH while leaving the “O” agencies solely as regulators and providers of direct care. It should be remembered that each of the “O’ agencies was established to address the particular needs of vulnerable populations. That laudatory goal should not be lightly undone.

With respect to initiatives which could potentially save money without damaging the mental health system, NYSPA endorses the following:

First, NYSPA asserts that significant savings can be affected in relation to the purchase of psychotropic medications by refining the state’s Medicaid formulary. NYSPA’s endorsement of such an approach in 2005 was predicated on the physician retaining the final say in choosing medications for their patients and NYSPA continues to hold this position. (See the NYSPA Report in the Summer, 2005 edition of Mental Health News.) The goal of negotiating lower cost to the Medicaid system also might be used to strengthen the NYS OMH PSYCKES quality initiative. That program utilizes the state’s Medicaid data base to flag individuals receiving antipsychotics that are considered to be an increased risk for “cardiometabolic” syndrome, an important health concern. Perhaps lower cost to the state’s Medicaid formulary could be negotiated for those antipsychotics least likely to cause adverse health consequences if they were designated as the medications to be used as first line medications when antipsychotic drug therapy is initiated.

Second, NYSPA has long advocated against the program of civil confinement for sexually violent predators both because of its expedient use of the mental health system to solve a problem of the criminal justice system and because of its potential for ballooning cost growth. This year’s budget crisis should prompt a review of a program which costs the state over $175,000 per year per individual versus $56,000 per year if they remained in prison. Currently about 6 new individuals are civilly confined monthly or more than 70 per year while over the 4 years of the program none of those confined have been released. Thus, the cost to the state is increasing by almost $13 million per year with no upper limit in sight. Nor do these costs include the substantial legal costs of the process of litigating the cases which are also borne by the state. NYSPA suggests consideration of alternate approaches such as indefinite sentencing, treatment in prison, and increased reliance on outpatient models used in other states.

Timothy’s Law, the NYS mental health parity legislation, was passed in 2006 and the federal mental health parity legislation was passed in 2008. Together these laws complement each other to provide powerful protections for persons requiring treatment for mental illness including those who may be required to enroll in managed care plans including Medicaid HMOs. The American Psychiatric Association, along with coalition partners, advocated for and was pleased that there was no diminution of the federal parity law in the Affordable Care Act, the national healthcare legislation passed in 2010. However, those protections have yet to be fully realized. Medicaid managed care organizations in NYS have yet to take concrete steps towards implementation, despite existing statute and a guidance document issued by DOH in September, 2010. Given the expectation that more New Yorkers, including those with “spmi”, will soon be moved into managed care it is critical that managed care organizations be made to abide by the federal law and the DOH guidance, both its quantitative and non-quantitative requirements. If necessary, NYSPA suggests that the legislature hold hearings to draw attention to the failure of Medicaid managed care organizations to become compliant.

Finally, I should like to draw attention to an arcane issue but one of importance to all New Yorkers. As readers may be aware, many NYS hospitals have been forced to shutter their doors in recent years and additional closings are likely. Many hospitals depend on fulltime medical staff and those with large psychiatric departments utilize salaried psychiatrists. Salaried staff are usually insured by their institutions. When bankruptcy is declared, the salaried medical staff often are left without medical liability coverage. This situation presents a concern both for physicians as well as for patients who may not receive payment of existing liability awards or be left without appropriate avenues for redress of possible malpractice claims. NYSPA believes that NYS should require that hospitals and agencies, which insure their medical staff, including psychiatrists, create vehicles which would come into play in the event of bankruptcy to protect the employed physicians and the patients they have cared for.

The matters discussed above represent some of the concerns which NYSPA will be addressing during this year’s legislative session. We hope readers will consider these concerns from their own perspective and, if you agree with the issues we have identified, will join with NYSPA’s members in advocating for them.

Barry B. Perlman, MD, is the Legislative Chair and Past President, New York State Psychiatric Association and is the Director, Dept. of Psychiatry, Saint Joseph’s Medical Center, Yonkers, N.Y.

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