Member Groups

Mental Health Matters
The newsletter of the ISBA’s Mental Health Law Section

February 2017, vol. 3, no. 3

21st Century Cures Bill includes important changes to Federal mental health policy and funding

On December 13, 2016, President Obama signed into law the “21st Century Cures” Bill (H.R. 34). In additional to many other unrelated health care provisions, this massive (over 500 pages) bill includes provisions from several pieces of mental health legislation which had been under consideration in either the House or the Senate during the 114th Congress. The bill includes most of the provisions from the House-passed “Helping Families in Mental Health Crisis Act” (H.R. 2646 which usually referred to as the “Murphy bill”). It also includes many provisions from the Mental Health Reform Act (S. 2680) which the Senate considered but did not pass. This article will summarize the key changes to Federal mental health law and policy contained in H.R. 34. Although H.R. 34 includes numerous changes to other areas of health care policy, these are beyond the scope of this article.

Mental Health Insurance Parity

The Federal mental health insurance parity laws prohibit private health insurance companies from providing less coverage for mental illnesses than is provided for other healthcare conditions. H.R 34 strengthens these laws by:

• requiring the Department of Health and Human Services (HHS) Inspector General to provide detailed written guidance about what constitutes compliance and non-compliance with the parity laws (Section 13003)

• creating an action plan to improve enforcement (Section 13002)

• specifically covering eating disorders (Section 13006)

Funding Authorizations for Mental Health and Substance Abuse Services

• Substance Abuse Block Grant funding was authorized at $1.86 billion annually for Fiscal Years 2018 through 2022 (Section 8002)

• Community Mental Health Services Block Grant funding was authorized at $532.6 million annually for FY 2018 through 2022. Ten percent of this money is set aside for individuals with early mental illnesses. (Section 8001)

• Funding for Assisted Outpatient Treatment was set for between $15 and $20 million annually through FY2022

• $64.6 million for homeless transition services (Section 9004)

• $41.3 million for treatment and recovery for homeless persons (Section 9001)

• $30 million for adult suicide prevention (Section 9009)

• $30 million for youth suicide prevention under the Garrett Lee Smith Memorial Act (Section 9008)

• $7.2 million for the National Suicide Prevention Lifeline Program (Section 9005)

• $7 million for on-campus suicide prevention services

• $6 million for the Suicide Prevention Technical Assistance Center

• $14.7 million for training law enforcement personnel concerning mental illnesses

• $12.5 million to create a data base of psychiatric hospital beds

• $5 million for new Assertive Community Treatment Programs

• $5 million for maternal depression screening (Section 10005)

• $4.3 for jail diversion programs (Section 9002)

Changes to the Administrative Structure of the Department of Health and Human Services

• The bill creates a new Assistant Secretary for Mental Health and Substance Abuse (Section 6001). This new position is subject to Senate confirmation, reports directly to the Secretary of HHS and is responsible for what has been the Substance Abuse and Mental Health Services Administration (SAMHSA) which was run by an administrator. Also created within HHS is a chief medical officer responsible for promoting evidence-based and promising practices. (Section 6003)

• The new assistant secretary must create a strategic plan by September 30, 2018, to be updated every four years. (Section 6005) Other administrative changes include the creation of a new National Mental Health Policy Laboratory to identify new mental health services and an Interdepartmental Serious Mental Illness Coordinating Committee. (Section 6031)

Mental Health and Criminal Justice

• Reauthorize the Mentally Ill Offender Treatment and Crime Reduction Act (MIOTCRA) at $50 million annually from 2017 to 2011

• Create a Forensic Assertive Community Treatment initiative to divert persons with mental illnesses from incarceration (Section 14005)

• Create a Federal Mental Health Court pilot program to divert low-level offenders (Section 14003)

• Require training for Federal uniformed services on how to respond to persons with mental illnesses (Section 14008)

• Expand in-prison re-entry programs to cover mental health treatment (Section 14009)

• Create court-ordered outpatient treatment as an alternative to incarceration (Section 14002)

• Require the General Accounting Office to issue a report on the number of mentally ill offenders in prison and the costs of incarcerating this population (Section 14016)

• Require the Department of Justice to collect data on mental illness and violent crime (Section 14015)

Pediatric Mental Health

• The Health Resources and Services Administration must provide grants to states to support statewide child psychiatric access programs to include “pediatric mental health teams” and telehealth services

• Authorizes $119 million annually for children with serious emotional disturbance

• Authorizes $20 million for infant and early childhood mental health promotion intervention and treatment

• Makes children in inpatient mental health facilities eligible for early screening and diagnostic services beginning in 2019 (Section 12005)

Confidentiality and Access to Records

• HHS must issue written guidance about the ability to share mental health records with caregivers and family members without violating the Health Insurance Portability and Accountability Act (HIPAA) (Section 11003)

• HHS must also create a training program and materials to clarify HIPAA confidentiality rules (Section 11004)

• Authorizes at total of $7 million to carry out the above provisions

Mental Health Workforce Development

• Creation of demonstration program to train medical residents to integrate mental health and substance abuse services into primary care setting. Authorizes $50 million annually from 2018 to 2022 for this program

• Child and adolescent psychiatrists are eligible for National Health Services Corps loan repayment programs (section 9023)

• Liability limitations created for health care professional who volunteer at community health centers (Section 9025)

Veterans Mental Health

• Creates procedural protections before veterans are determined incompetent to manage their benefits (Section 14017)

• Veterans determined incompetent to manage their benefits are included in the National Instant Criminal Background Check System used to prevent gun purchases

• Creates appeals process to challenge determination of incompetence and loss of firearm privileges.

It is likely that this bill will be the last one signed by President Obama before he leaves office. It is heartening that despite the gridlock in Washington, Republicans and Democrats could work together on mental health and substance use issues. The provisions listed above will help move mental health policy more towards prevention, early intervention and other measures to prevent the worst results of untreated mental health conditions. One could compare this new focus to the treatment of non-psychiatric illnesses. We do not intentionally wait to treat cancer until it reaches Stage Four and death is imminent and certain. This bill show that in the behavioral health field also we are finally beginning to implement the slogan “B4 Stage 4.”


Mark J. Heyrman, J.D., is a Clinical Professor at the University of Chicago Law School. See <http://www.law.uchicago.edu/faculty/heyrman>. He can be contacted at 773-702-9611 or by e-mail at m-heyrman@uchicago.edu.