Federal & State Policies to Reduce Incarceration of Mentally Ill

(PDF Version of this federal fact sheet and state fact sheet)

End Federal Mental Illness Policies that Offload Mentally Ill to Criminal Justice.

“We have two mental health systems today, serving two mutually exclusive populations: Community programs serve those who seek and accept treatment. Those who refuse, or are too sick to seek treatment voluntarily, become a law enforcement responsibility. . . . [M]ental health officials seem unwilling to recognize or take responsibility for this second more symptomatic group.” —Chief (Ret.) Michael Biasotti, chair, NYS Association of Chiefs of Police Committee on Untreated Serious Mental Illness.

CJ efforts focus on improving how criminal justice systems interact with mentally ill after criminal involvement (ex. CIT, MH courts, forensic parole, competency restoration, etc.). But CJ officials have let mental health officials off the hook for embracing policies that offload the mentally ill to CJ. This endangers the public, police, patients and prisoners. It increases costs, and removes liberties.

  • Reopen State Psychiatric Hospitals
    1. Eliminate Medicaid’s Institutes for Mental Disease (IMD) Exclusion which prevents Medicaid funds from being used for hospitalization of the sickest. Then states can hospitalize Seriously Mentally Ill (SMI) who need that form of treatment.
    2. Stop DOJ Civil Rights of Institutionalized Persons (CRIPA) division from bringing Olmstead lawsuits designed to force states to kick mentally ill out of psychiatric hospitals and adult (nursing) homes.
    3. Stop Protection and Advocacy Program (P&A, PAIMI, Disability Rights) from using federal funds to make hospitalization and civil commitment of seriously mentally ill even more difficult than it is now.
  • Help Homeless and other Seriously Mentally Ill with Anosognosia Stay in Treatment
    1. Robustly fund Assisted Outpatient Treatment (AOT, mandated/monitored community treatment)
    2. Direct Center for Medicare and Medicaid Services (CMS) to authorize the use of Medicaid/Medicare to reimburse for court costs of AOT ($2,000). Court costs are a necessary case management service for seriously ill.
    3. Direct CMS to create a ‘blended rate’ for Clubhouse programs and CMHS to encourage clubhouse expansion.
  • Enable Families to Help Seriously Mentally Ill Loved Ones
    1. Free families of HIPAA Handcuffs and FERPA provisions that prevent them from getting information needed to help mentally ill loved ones
      1. Include families in “financial” and “treatment and care” exemptions, so families that provide housing, case management, transportation support to mentally ill out of love, can get access to same information companies that do it for money receive
      2. Codify ‘reverse’ HIPAA to make it clear doctors and others may receive information from families without violating HIPAA
      3. Enact “safe harbor” provisions to protect treatment providers who make disclosures to families in good-faith.
  • Focus federal mental health resources on improving meaningful metrics
    1. Require recipients of Mental Health Block Grants to use them for seriously ill, rather than PC pop-psychology and to report on numbers of, or rates of homelessness, arrest, incarceration, violence and needless hospitalization of seriously mentally ill.
    2. Support and empower Asst. Sec. of Mental Health Dr. Elinore McCance-Katz in her excellent efforts to focus SAMHSA and CMHS mental health spending on helping the homeless, psychotic, delusional and potentially violent, rather than on improving mental wellness in masses.
    3. Direct NIMH to focus on seriously mentally ill adults between 18 and 64 and do more medication research.
  • Create group homes and SROs in addition to independent living options.

PDF Version of this federal fact sheet and the state fact sheet

State Mental Health Reforms that would Cut the Offloading of Mentally Ill to Criminal Justice

Reform civil commitment laws (http://www.treatmentadvocacycenter.org/grading-the-states)

  • Civil commitment law should prevent dangerousness, not require it. Interpret the “dangerousness standard” more broadly than “imminently” dangerous. Amend civil commitment law to include “gravely disabled,” (model: Alaska, Connecticut) “substantial deterioration,” (model: Arizona) “lack of capacity,” and Wisconsin’s “Fifth Standard” in civil commitment standards.
  • Amend law to specifically allow judges who are ruling on emergency and other civil commitments to consider at least three years of patient’s past history since that is the best predictor of future actions.
  • Require involuntary treatment hearing to be held at same time as involuntary commitment hearing so we can treat those we commit.
  • Amend emergency custody laws to allow for holds lasting up to 10 days (models: Louisiana, Rhode Island)
  • Allow families and other responsible adults to petition for emergency custody and make criteria and process clear
  • Create an easy path between AOT and inpatient commitment so they work seamlessly together.

Expand Use of Assisted Outpatient Treatment (AOT) https://mentalillnesspolicy.org/wp-content/uploads/aotworks.pdf

  • Require all counties to have AOT programs and spell out process with specificity in legislation
  • Screen all involuntarily committed patients and mentally ill prisoners prior to discharge and arrange for AOT, housing, clubhouses, and other services if needed. They are the most likely to recidivate if not provided treatment.
  • Allow families to petition the court and educate families how to do it.
  • Incentivize corrections to apply for AOT for mentally ill prisoners who are being released.
  • Ensure initial AOT order can last a minimum of one year and allows six month renewals

Expand Hospital Capacity

  • Vigorously fight Olmstead suits and refuse to sign Olmstead settlement agreements.
  • Have legislature pass resolution calling on Congress to eliminate the Institutions for Mental Disease (IMD) exclusion which prevents Medicaid from reimbursing states for long-term hospitalization of seriously mentally ill adults.
  • Have legislature pass resolution calling on the Governor to apply for (or amend existing) Medicaid waiver to allow state to use Medicaid funds for hospitalization (See CMS State Medicaid Directors Letter (SMD #18-011).
  • Use Certificate of Need (CON), regulatory, and legislative policy to ensure adequate local inpatient and emergency room capacity

Focus Mental Health Department on Needs of the most Seriously Mentally Ill, rather than highest functioning.

  • Require state mental health departments, their directors, and directors of local mental health programs to report on numbers and rates of homelessness, arrest, incarceration, violence and needless hospitalization of seriously mentally ill. Those are the most important metrics, yet are rarely measured and no mental health officials held accountable for reducing them.
  • Encourage hospitals and programs to use long acting (30/90 day) injectable antipsychotics so patients police bring to hospitals, and those being discharged from jails and prisons don’t immediately deteriorate on discharge.
  • Make sure electroconvulsive therapy (ECT) and clozapine are widely available and not restricted.
  • Make the ability to sign HIPAA release forms a standard and routine part of admission to and discharge from all inpatient and outpatient programs so families can facilitate treatment for loved ones.
  • Allocate housing to mental health courts.

Create group homes and congregate housing in addition to independent living options.

Open and expand clubhouse programs (http://clubhouse-intl.org)

PDF Version of this federal fact sheet and state fact sheet

For more information: Read “Insane Consequences: How the Mental Health Industry Fails the Mentally Ill (Prometheus) by DJ Jaffe or contact djjaffe@mentalillnesspolicy.org Visit mentalillnesspolicy.org @MentalIllPolicy, http://bit.ly/DJJaffeMentalIllnessTedTalk https://www.facebook.com/mentalillnesspolicyorg/ (2/2019)

DJ Jaffe is Executive Director of the non-partisan Mental Illness Policy Org., and author of Insane Consequences: How the Mental Health Industry Fails the Mentally Ill. He is a critic of the mental health industry for ignoring the seriously ill, and has been advocating for better treatment for individuals with serious mental illness for over 30 years. He has written op-eds on the intersection of mental health and criminal justice policy for the New York Times, Wall St. Journal and the Washington Post. New York Magazine has credited him with being the driving force behind the passage of New York’s Kendra’s Law and Congress incorporated ideas proposed by DJ in the Helping Families in Mental Health Crisis Act.