State Policy Items for Consideration by Affiliates

NAMI Texas recommends the following state policy items for consideration by affiliates:

Funding for Mental Health Services

Funding is a perennial concern of advocates for mental health services in Texas. Per capita spending on mental health services in Texas is well below the national average, and Texas ranked 49th out of 50 states in Fiscal Year 2010. Even with the $259 million infusion of mental health funding that lawmakers made in 2013, services are still chronically underfunded and profound service gaps still exist. There is still a dire need for increased funding for mental health services in the state of Texas. According to the most recent estimates from the U.S. Census Bureau, Texas is the second fastest growing state in the U.S. in terms of population growth rate – funding will need to meet the growing demand for mental health services as our state’s population increases rapidly.

Bringing State Health & Safety Code in Line with HIPAA

Rules regarding the disclosure of confidential, basic information to family members are currently more restrictive in the Texas Health & Safety Code than in the federal Health Insurance Portability & Accountability Act (HIPAA). Family members are willing and capable of aiding in the recovery of their loved ones, but they are often unable to access important information because professionals are afraid of breaking the law, even if the professional knows that releasing that information to family members would facilitate recovery. Obstructing families from playing an active role in the recovery of their loved ones can result in devastating consequences for individuals living with mental illness. The Texas Health and Safety Code should be amended to reflect the information disclosure allowances that are provided for in federal law.

Continuation of Benefits Upon Release from Criminal Justice Facilities, State Hospitals, or Free-Standing Psychiatric Hospitals

Persons receiving Medicaid benefits who are jail, in a state hospital, or in a free-standing psychiatric hospitals for longer lengths of stay have those benefits suspended or terminated due to state regulations governing the preclusion of the use of Medicaid to cover treatment costs in jail or prisons and CMS regulations about funding free-standing psychiatric hospitals. It is cumbersome to have those benefits restored upon release, sometimes necessitating re-application, which is a very lengthy process. Benefits should be immediately reinstated upon the release of an inmate or person who has been hospitalized or incarcerated so that follow-up treatment in the community is not jeopardized due to lack of payor source and/or lack of ability to access stable housing and meet basic needs.

Citations for Misdemeanors Committed by Individuals with Mental Illness (in lieu of arrests)

When answering emergency calls, some police officers who have a reasonable belief that a person has a mental illness will always make an arrest if they have probable cause to believe that person has committed a crime. This practice results in the arrest and prosecution of individuals with mental illness for acts they committed in a crisis situation. Rather than unnecessarily and inappropriately involving these individuals with the criminal justice system, police officers should be given the discretion to issue citations when they have a reasonable belief that the person has a mental illness and probable cause to believe that a misdemeanor offense has occurred.

Jail Diversion

Individuals with mental illness are commonly found in jails and prisons. These facilities have become de facto service providers, but treatment in jails and prisons is often lacking. There are far more appropriate and cost-effective settings for individuals with mental illness. Jail diversion strategies have emerged as effective solutions to the criminalization of mental illness. Though the term “jail diversion” is used differently in the mental health community, it is commonly understood to mean diverting individuals with mental illness away from jail and towards community-based treatment and support. These strategies may be pursued after incarceration begins, after a person is released from jail or at any point after initial contact with the criminal justice system. In the 2013 Texas legislative session, lawmakers passed a bill (SB 1185) creating a program in Harris County linking inmates with mental illness to critical services in the first few weeks after release from jail. This strategy is designed to reduce recidivism, diverting individuals with mental illness who have previously been in jail. If this program proves to be successful, it may be established in other areas of the state. Also, Crisis Intervention Training for law enforcement has proven to be an effective way of educating police to utilize de-facto pre-book-in diversion strategies by using their discretion to take persons who commit nuisance misdemeanors due to mental illness to treatment facilities for evaluation and treatment rather than making arrests.

Supported Housing and Employment

Additional support for housing, supported housing, and employment services is a critical need throughout the state. In particular, there should be funding for continuing supported housing services to persons who improve in symptoms and functioning so that they no longer qualify for the Resiliency and Disease Management (RDM) Levels of Care or “packages” 3 or 4 (4 is ACT). Currently, if persons are upgraded due to improvement to RDM levels of Care 1 or 2, they no longer qualify for the services that meet HUD requirements for supported housing. This puts providers in the untenable situation of having to remove persons from stable housing because the goal of stable housing – to assist the person to stabilize and recover – has been met. By disrupting housing after the person improves, a vicious cycle of improvement and decompensation often begins.

Regarding supported employment, most consumers with severe mental illness (SMI) want to work and feel that work is an important goal in their recovery. When they identify work as a goal, consumers usually mean competitive employment, defined as community jobs that any person can apply for, in integrated settings (and in regular contact with nondisabled workers), and that pay at least minimum wage. Unfortunately, assistance with employment is a major unmet need in most mental health programs: less than 15% of consumers are competitively employed at any time. Funding for supported employment programs should be prioritized.

Insanity Defense

There is a long-standing need for reform in the Texas insanity defense statute. The current test for insanity in the Texas legal system is extremely narrow, resulting in individuals with serious mental illness being convicted and incarcerated when they are in need of hospitalization and long term treatment. A simple change in the wording of the statute would help to fix this problem – rather than basing NGRI verdicts on whether a defendant “knows” whether his or her actions were wrong, juries should be instructed to consider whether defendants can “appreciate” the wrongfulness of their actions. This wording, used by a number of other states, recognizes that cognition and decision-making are influenced by mental components other than just “knowing” right from wrong. There are also strong arguments for both informing juries of the consequences of a NGRI verdict and ensuring proper legal representation for NGRI defendants.

Competency Restoration

The process of competency restoration is used when an individual charged with a crime is found incompetent to stand trial, often as a result of an active mental illness. Before legal proceedings may resume, the defendant’s competency must be restored. All too often, people linger so long after completing competency restoration that they decompensate and experience a resurgence of their symptoms. Reasonable time frames for the resumption of criminal proceedings following competency restoration should be established.

In the 2013 legislative session, a jail-based competency restoration pilot program was established. An evaluation on the program will be published by December 2016. If this model results in a more expedient and effective delivery of competency restoration services, then it is worth considering for replication in other areas. However, there is cause for concern if individuals with mental illness are spending unnecessary time in jail when their competency could be restored in the community.

Advance Directives

Advance directives allow individuals with mental illness to make informed decisions about their treatment while they’re stable. This empowers treatment providers to provide consumer-directed care that respects the wishes of the individual being treated. It also reduces gray area for providers, who are often hesitant to provide treatment when an individual in a crisis situation is resisting treatment but would likely accept treatment if he or she were stable. Furthermore, advance directives allow individuals with mental illness and their families to plan ahead and access care that may be needed at some point. Mental health advance directives are already allowed for in Chapter 137 of the Texas Civil Practice and Remedies Code, but far too few people know about them and the law is being vastly underutilized. Moving it to the Health and Safety Code, which health care professionals, families, and individuals with mental illness are far more likely to be familiar with, would encourage their usage.

Administrative Segregation

Inmates in administrative segregation (or solitary confinement) are typically kept in 6 foot by 9 foot cells for 23 hours per day, have little to no stimulation, and are even isolated during the short time they are in recreation. Many have been in administrative segregation for one or more decades. In 2011, 2,060 individuals in Texas administrative segregation were identified with a serious mental health or mental retardation diagnosis. Studies have shown that depriving inmates of human contact and keeping them in ad seg for long periods of time may “exacerbate mental health disturbances, assaultive and other antisocial behaviors, and chronic and acute health disorders.” Psychological effects can include anxiety, depression, anger, cognitive disturbances, perceptual distortions, obsessive thoughts, paranoia, and psychosis. In the 2013 legislative session, a bill was passed requiring the state to closely track the use of administrative segregation and publish a publicly-accessible report by the end of 2014. The report must include recommendations on reducing the administrative segregation population, diverting adults and juveniles with mental illness from administrative segregation, and decreasing the length of time adults and juveniles spend in administrative segregation. Lawmakers should use those recommendations to pass legislation that minimizes the harmful impact that administrative segregation has on the mental health status of inmates and juveniles in disciplinary seclusion.

Coordinating Court-Ordered Services Hearing with Medication Hearing

When a judge is considering whether to court order mental health services and/or psychoactive medication, there is sometimes up to a two-week lag in between the court-ordered services hearing and the hearing on an application for an order to authorize medication. This causes individuals refusing medication to go unmedicated and decompensate further, negatively affecting long term outcomes and obstructing recovery for individuals with mental illness. Furthermore, it causes much-needed hospital beds to be occupied without making any progress, which both limits access to inpatient services for those who truly need them and causes the state to spend money that could be allocated more efficiently. This issue should be addressed by requiring that the hearing on an application for an order to authorize psychoactive medication to be held on the date that a hearing on an application for court-ordered mental health services is held.

Removing Psychiatric Question from Texas Driver’s License Application

The question regarding mental illness that appears on the Texas driver’s license application is highly concerning. It asks whether the person applying for a driver’s license has been diagnosed with or received treatment for a psychiatric disorder in the past two years. A very large number of Texans would have to answer this question with “yes”. Recent data from the U.S. Centers for Disease Control and Prevention’s National Center for Health Statistics indicates that approximately 10% of Americans are on anti-depressants. This treatment would have no impact on their ability to safely operate an automobile, but applicants not wishing to submit inaccurate information are forced to answer the question with “yes”. The DSM-IV, which is the industry standard for diagnosing mental illnesses, has a very broad scope for what is considered a mental illness. All of the people with a DSM diagnosis would have to answer “yes” if they want to be honest on the application. Meanwhile, applicants with physical health conditions are allowed to make their own determinations of whether or not their driving ability will be affected. This is reflective of the powerful stigma surrounding mental illness in our society. Sadly, asking individuals applying for a driver’s license may discourage them from seeking treatment that they need if they perceive that it could affect their ability to receive a driver’s license in the future. The question asking whether a driver’s license applicant has been diagnosed with, treated, or hospitalized for a psychiatric disorder should be removed from the application.

Reducing/Eliminating Practices of Child Relinquishment to Obtain Mental Health Services and Putting Parent’s Names on Abuse and Neglect Registry

Intensive mental health services and treatment for children with serious emotional disturbance (SED) or significant behavioral challenges are often not accessible to the children and families who need them. As a result, it is often the parent’s only option (after exhausting insurance and family resources) to place their child in custody of Child Protective Services (CPS) so that their child can get the treatment and services he or she needs. When parents relinquish custody of their child to CPS, they are given the designation of “refusal to accept parental responsibility”. Parents of children with serious emotional disturbance (SED) who need intensive mental health intervention, treatment, and services, should not have to relinquish custody of their child to the state in order to obtain those services and should not have their names placed on the abuse/neglect central registry. In the 2013 legislative session, a bill (SB 44) was passed that requires the state to develop recommendations a.) for preventing the practice of putting names on the registry when relinquishment is solely for the purpose of obtaining mental health services, and b). for preventing child relinquishment. The next step will be to advocate for specific changes that will help the state reduce or eliminate those practices.


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