Politics surrounds just about everything, and the President’s New Freedom Commission on Mental Health is no exception. We in the disability rights community need to be alert to the political opportunities it offers.
The following ideas about the Commission reflect the need for a smart strategy that transcends our desire to “fix” problems or fundamentally alter a paradigm.
The Commission is part of the New Freedom Initiative (NFI), a massive program with resources scattered across numerous federal agencies. The NFI was conceived by the Bush White House during the first months of his term.
The Commission has a relatively narrow charge: to “improve the system” compared to similar efforts in years’ past. In this case, this august group of experts has one year to produce a report to the President under the following mission:
The mission of the Commission shall be to conduct a comprehensive study of the United States mental health service delivery system, including public and private sector providers, and to advise the President on methods of improving the system. The Commission’s goal shall be to recommend improvements to enable adults with serious mental illness and children with serious emotional disturbances to live, work, learn, and participate fully in their communities. (http://www.whitehouse.gov/news/releases/2002/04/20020429-2.html)
While the large national mental health organizations are pleased with the announcement of the Commission, they should not expect much in the way of major reform. The Commission’s stated mission and objectives do not lend themselves towards a fundamental alteration of how mental health services are delivered or financed. Recommending “improvements” and comprehensive “study” are the operative words in the mission statement. Wholesale change is not in the equation.
So, realistically, what will the Commission accomplish in less than a year? What political impact will the Commission’s findings have? More importantly, will the Bush administration provide resources where we need them, or will the administration reinforce the status quo and simply say they have done something about mental health? These and many more questions will certainly be asked over the next several months and beyond.
One major reform, the struggle for mental health parity, is not a popular issue for states that will have to provide more services with little or no increase in resources to pay for them. Private-sector insurance premiums are also predicted to go up, leaving many uninsured people to seek help from public mental health authorities. Yet advocacy organizations such as NAMI, the National Mental Health Association, and the Bazelon Center for Mental Health Law seem to be holding their breath, hoping beyond hope that parity will be the victory the mental health field has been waiting for.
Unfortunately, parity will not solve the problems of warehousing or dumping people in state psychiatric hospitals because there is inadequate affordable housing and community-based mental health services. Parity will not solve the high unemployment rate among people with psychiatric disabilities who are afraid to risk their SSI because they cannot get commensurate healthcare insurance in a minimum-wage job. Parity may scratch the impenetrable wall of stigma and discrimination in the healthcare sector, but it will do nothing as long as governments continue to perpetuate a system that rewards discontent, despair, and dependence instead of recovery and well-being.
Implementation of the landmark U.S. Supreme Court decision in Olmstead v. L.C. is our best hope. It affords us the opportunity to make substantial headway from a human rights and political perspective. The crux of the Olmstead decision – to end discrimination and segregation – is the rallying cry of people with disabilities and elderly people who live in nursing homes rather than in their communities, people with psychiatric disabilities who are detained in state psychiatric hospitals but ready to be discharged, and children who should not become the next generation of “adults with severe and persistent mental illness.”
In Olmstead, the Supreme Court ruled that unjustifiably segregating individuals with disabilities may constitute discrimination based on disability. The court ruled that the Americans with Disabilities Act may require states to provide community-based services rather than institutional placements for individuals with disabilities.
However, Olmstead, based on the Americans with Disabilities Act, has not yet been sufficiently addressed by state departments of mental health. Given the Bush administration’s support of Federalist principles, under which the federal government cedes most powers to the states, how can community integration, the basis for the Commission’s work, succeed?
President Bush called for “the swift implementation of Olmstead” when announcing the New Freedom Initiative on February 1, 2001. The NFI connection is perfect. It gives us the opportunity to bring the Olmstead mandate to the mental health community, at least on par with the effective advocacy efforts of ADAPT, the American Association of People with Disabilities, the Disability Rights Education and Defense Fund, ADAWatch, and other disability organizations. Olmstead gives us the chance to develop a real game plan with a long-term political strategy that is winnable, not simply political.
The time to implement Olmstead is now! Politically, the Bush administration is vulnerable on several fronts, including the atrocities of homelessness, large urban jails that are now called state hospitals, decaying mental health programs, and policies that promote dependence. Admittedly, these problems have plagued every presidency; but the problems are now on the doorstep of the Bush administration, and the administration must take on some of the responsibility. Hence the birth of the NFI and the subsequent creation of the New Freedom Commission on Mental Health.
One can clearly see the Federalist principles reflected in an Executive Order issued by the White House on June 18, 2001. The following passages from President Bush’s order clearly lean towards giving states discretion in implementation. For example, states “must avoid.discrimination,” but are not told that discrimination is prohibited.
(c) Unjustified isolation or segregation of qualified individuals with disabilities through institutionalization is a form of disability-based discrimination prohibited by Title II of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et. seq. States must avoid disability-based discrimination unless doing so would fundamentally alter the nature of the service, program, or activity provided by the State.
(d) In Olmstead v. L.C., 527 U.S. 581 (1999) (the “Olmstead decision”), the Supreme Court construed Title II of the ADA to require States to place qualified individuals with mental disabilities in community settings, rather than in institutions, whenever treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the State can reasonably accommodate the placement, taking into account the resources available to the State and the needs of others with disabilities.(http://www.whitehouse.gov/news/releases/2001/06/20010619.html)
As stated below, the Commission is required to follow Federalist principles in making recommendations to the President. Two members of the Commission are directors of state mental health departments and represent important states in the Electoral process (California and Ohio), and one of these two individuals chairs the Commission. It is also noteworthy that both of these states will have gubernatorial elections this fall.
(e) The Commission shall follow the principles of Federalism, and ensure that its recommendations promote innovation, flexibility, and accountability at all levels of government and respect the constitutional role of the States and Indian tribes.(http://www.whitehouse.gov/news/releases/2002/04/20020429-2.html)
If states “must avoid.discrimination” but are not strictly prohibited from discriminating against people with disabilities, and Federalism is driving the process, what hope is there to see Olmstead fully implemented? In other words, if some people can be let out of institutions and others cannot, how will we protect Olmstead from becoming a fragmented promise for freedom?
Politically, people with disabilities must get involved in the process. As Justin Dart said, “Get into politics as if your life depended on it. It does.” A strong turnout by people with psychiatric disabilities can set the bar for the presidential election in 2004. Get trained to register voters, work the polls, and volunteer for good candidates. In September, three counties in Maryland will be using touch-screen-voting technology. Find out if your voting place and voting machines are accessible now!
Getting involved in politics makes a difference. I am working to help elect Mark Shriver (D), running in the 8th Congressional District in Maryland, because I know he cares deeply about our issues. He also has a solid grip on other issues of concern to all voters, such as healthcare, economic justice, and national security.
We are six seats shy of a Democratic House and we have not been in the majority for a very long time. The elections on November 5th may result in major changes for Democrats and our nation. If this is the case, a Democratic House and Senate will be more likely to embrace disability rights, among many other issues we care about, such as confirming federal court judges and Supreme Court Justices.
The Commission will be several months into its work after the elections but not quite finished. The likelihood of holding House hearings on the final recommendations will be greater if the Democratic Party leads the House. The work of the Commission may take on a different spin after the elections, and it will be important to keep tabs and relate preliminary findings to your local and state political leaders and policymakers. Don’t forget your public housing authorities, too.
Olmstead planning at the state level is nearly complete. Implementation of state plans should be well under way. Get involved. Attend meetings in your state that are relevant to implementing Olmstead. Go to meetings with your peers and discuss strategies in advance. While Federalist principles diffuse national policy until perhaps the 2004 election, use your home state as the playing field to make Olmstead real! Our lives depend on it.