Behavioral health reform efforts have a chance of passing during Congress’ lame-duck session.
The final days of the legislative session include several must-move bills, according to experts with the law firm Polsinelli. Combined with a bipartisan interest in behavioral health reform, the environment on the Hill could be favorable to seeing key provisions clearing Congress.
The largest in terms of scale is the Restoring Hope for Mental Health and Well-Being Act of 2022 (H.R. 7666). Sponsored by Rep. Frank Pallone Jr. (D-N.J.), U.S. House of Representatives passed the bill on June 22.
In short, the bill is meant to expand and strengthen the collective behavioral health system in the U.S. It reauthorizes and expands several funding grants and changes non-monetary regulations. The Congressional Budget Office estimates that the bill would increase behavioral health-related spending by $1.65 billion over a 10-year period.
It would also eliminate the X waiver, which requires physicians to have additional training to prescribe certain opioid use disorder medications, and remove behavioral health parity opt-outs for non-federal government health plans, to name a few specifics.
“On these types of policy issues, there really isn’t a tremendous amount of daylight between Democrats and Republicans in principle,” Sylvia Kornegay, a policy advisor with Polsinelli, said during a webinar the firm hosted. “We know there is at least one more legislative train leaving the station this year, and that deals with [fiscal year 2023] funding.”
Still, there are questions about what lawmakers would be willing to do, Kornegay said. These include which bills legislators are most familiar with, which cost the least and which has the greatest support from stakeholders “to give everyone the cover they need to vote yes.”
Bipartisan behavioral health reform efforts in 2022 so far
Previous congressional action earlier in the year supports the idea there is bipartisan support for behavioral health reform.
The Restoring Hope for Mental Health and Well-Being Act of 2022 passed out of the House on a 402-20 vote. All votes against the bill were from Republicans. To a lesser degree, the Bipartisan Safer Communities Act reflected bipartisan interest in the role of mental health in mass shootings and gun control, a third rail for Republicans. Fourteen Republicans voted for the bill in its 220-193 final passage. It became law on June 24.
“What’s particularly interesting about that is that it’s the first time that we’ve seen that pairing in legislation,” Tim Perrin, a policy advisor, said of behavioral health reform being combined with gun control measures.
What’s on the table
Over the past year, the Senate Finance Committee has released several pieces of legislation that were created by bipartisan working groups. On Nov. 10, the committee released its fourth discussion bill. The latest bill explores accelerating behavioral health integration in Medicare and Medicaid.
Perrin added that two must-pass bills — a reauthorization of the National Defense Authorization Act and an omnibus government funding bill — also give cover for behavioral health reform. The bills are so large in terms of dollars that adding on these initiatives would not lead to elevated costs.
“You just never know what goes into how these big packages come together,” Perrin said. “But when the number’s really big, sometimes it’s easy to glom on something that doesn’t cost a whole lot to the federal government because it doesn’t impact that huge number.”
Dozens of House members have put public pressure on House and Senate leaders to make the Restoring Hope for Mental Health and Well-Being Act a priority. The 55 members of the mostly Democratic Bipartisan Addiction and Mental Health Task Force sent congressional leaders an open letter that seeks to provoke action.
Bipartisanship aside, Democratic inaction comes with peril for their agenda.
Come 2023, Democrats will no longer control the House of Representatives. There, the Republicans have taken a two-seat majority, with two races still outstanding.
Democrats hold 50 seats in the Senate not including the to-be-held run-off election for Senate in Georgia. Vice President Kamala Harris acts as the tie-breaking vote in the Senate, making the tie in the Senate effectively a majority. Georgia will hold the run-off vote on Dec. 6.
“Given that the House Republicans are going to take control of that chamber and that the House and Senate will have very narrow margins next Congress, my sense is that Democrats — who currently control the House, Senate and the White House — will want to try to get as many priorities included in this lame duck package,” Perrin said.
The impact of ending the public health emergency
Looking forward, a major unresolved question is the impact of Medicaid coverage after the end of the public health emergency (PHE).
During the pandemic, the federal government made it easier for people to qualify for Medicaid and gave states more money if they didn’t dismiss Medicaid enrollees during the PHE. States are to resume closer inspection of Medicaid membership within a year of the end of the PHE.
And states that expanded Medicaid coverage through the Affordable Care Act are required to have some degree of behavioral health parity in their benefits, Jennifer Evans, an attorney and member of the Polsinelli Behavioral Health Law Group, said. The District of Columbia and 39 states have expanded their Medicaid programs, according to the Kaiser Family Foundation.
“You’ve got a lot of people who have access to parity through the Medicaid program who never have before in their life — who are learning about behavioral health, who are learning about how to get this treatment,” Evans said. “Now we need providers who can go in and serve them while they still have that coverage.”
As many as 15 million Americans, including 6.7 million children, are at risk of losing Medicaid following the end of the PHE, according to the Georgetown University Health Policy Institute.
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