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No Room at the Inn: How the Federal Medicaid Program Created Inequities in Psychiatric Hospital Access for the Indigent Mentally Ill

Published online by Cambridge University Press:  06 January 2021

Joanmarie Ilaria Davoli
Joanmarie Ilaria Davoli*
Affiliation:
Law & Psychiatry Center, and George Mason University School of Law. University of Virginia, Georgetown University Law Center
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Extract

Get off [public transportation] at San Francisco's Powell Street station and you enter an open-air asylum. A woman crouches on the sidewalk, screaming obscenities. A man stumbles in circles, haunted by demonic voices. Hands reach out and rattle cups for spare change; voices curse those who pass by. For more than three decades, California has turned its back on those who suffer from severe mental illness, treating them as unfortunate fixtures in our urban landscape rather than as human beings who desperately need medication, treatment and housing in order to cope with their illnesses.

California is not alone in turning its back on the severely mentally ill. Because of financial incentives from the federal government, every state continues to close state-run psychiatric hospitals, leaving those who are poor and severely mentally ill with no treatment or care. Many cities have areas similar to San Francisco where the mentally ill suffer in public because it is cheaper to abandon the mentally ill to an open-air asylum than it is to build and fund psychiatric hospitals.

Type
Research Article
Information
American Journal of Law & Medicine , Volume 29 , Issue 2-3 , June 2003 , pp. 159 - 183
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2003

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References

1 Editorial, California's 30-Year Failure to Confront Mental Illness, S.F. CHRON., Feb. 18, 2001, at A22.

2 See Bruce Rheinstein, Editorial, ‘No Vacancy’ Faces Mentally Ill, DAILY OKLAHOMAN, Oct. 6, 2000.

Many people think that the era of closing large, state psychiatric hospitals and dumping the mentally ill on city streets is a thing of the past. Sadly, Oklahoma is proving them wrong and perpetuating the failure of deinstitutionalization and success of transinstitutionalization by downsizing Eastern State Hospital in Vinita.

Gravely ill Oklahomans, who were until recently provided appropriate psychiatric care, have now joined the hundreds of thousands of mentally ill Americans for whom deinstitutionalization has meant nothing more than a denial of treatment, abandonment to the streets and preventable imprisonment in jails and prisons… .

The primary blame lies not in Oklahoma City, however, but in Washington and in a decades-old federal policy established when severe mental illness was not universally recognized as a biologically based brain disease.

Id.; see also Mary Zdanowicz & Bruce Rheinstein, Editorial, Florida's Mentally Ill Left Out in the Cold, ORLANDO SENTINEL, Mar. 23, 2000, at A15.

Most people think that the era of closing large, state psychiatric hospitals and dumping the mentally ill on the streets is a thing of the past. Florida is proving them wrong by threatening to close another 350 hospital beds for its most severely mentally ill citizens.

The primary blame lies not in Tallahassee, however, but in Washington. Because their illness prevents them from obtaining private insurance through employment, many people with severe mental illness rely on Medicaid to pay for their treatment. For every dollar Florida spends on Medicaid, the federal government reimburses more than 56 cents—unless the patient is between the ages of 21 and 65 and treatment is in a psychiatric hospital or other “Institution for Mental Diseases” (IMD)… .

States such as Florida fill the financing gap created by the IMD exclusion by relying on Medicaid's “Disproportionate Share Hospitals” (DSH) payments for hospitals providing care to a “disproportionate share” of poor or indigent patients. But Florida's DSH payments have been trimmed some $47 million per year from 1998 to 2002. Rather than picking up the entire tab for state psychiatric hospital care, Florida is proposing to close 350 beds that are used to treat the most severely ill.

Id.

3 See Opinion, Helping People off the Streets; An Rx Against Violence, L.A. TIMES, Apr. 14, 2002, at M4.

Imagine a train wreck that scatters passengers across the landscape. Paramedics arrive and begin loading the injured onto stretchers. But when anyone screams out in pain, “No! Don't touch me!” the medics nod compassionately and leave that person sprawled amid the rocks and cactuses.

A similar scene has been unfolding on the urban landscape for the last 40 years. People with severe mental illness, tossed from state hospitals, have landed on public sidewalks and in wretched urban encampments. And no one helps them because they say they don't want help.

Id.

4 Describing these reports as “a series of shattering exposés on state hospitals” that appeared just after World War II, Rael Jean Isaac and Virginia C. Armat wrote:

In 1945, Mike Gorman … embarked on a campaign, as he later put it, to wave “the reek and stench of our state mental hospitals under the public's nostrils.” In May 1946, Life magazine ran Albert Q. Maisel's withering report on the conditions in these institutions. In 1948 both Albert Deutsch's Shame of the States (like Maisel’s, accompanied by photos) and Gorman's Oklahoma Attacks Its Snake Pits were published. These journalists compared some psychiatric wards to Nazi extermination camps, which newsreel footage had freshly seared in public memory. Maisel compared state mental hospitals to concentration camps on the Belsen pattern.

RAEL JEAN ISAAC & VIRGINIA C. ARMAT, MADNESS IN THE STREETS 67-68 (1990).

5 In the influential The Shame of the States, author Albert Deutsch wrote:

Limiting ourselves for the present to this country—this rich, busy, idealistic, sympathetic, growing country—it is painful to face the fact that for the mentally ill we have much less demonstrated compassion, despite their oftentimes greater suffering, than for the more obviously physically ill. Let a man be taken to a hospital because he has a broken a leg, crying out with pain when he tries to walk, and he will be surrounded by nurses, physicians and technicians within a few hours, his suffering eased and his leg so held that it can begin to mend. But let a man's mind begin to wander or his memory to fail, his perceptions to become confused or his fear to overwhelm him, and he is likely to be conveyed in a dilatory fashion through the county jail to the courtroom and thence to the wards of what was once called the “asylum.” What happens after that few know, few care, and fewer do anything about it.

ALBERT DEUTSCH, THE SHAME OF THE STATES 15-16 (1948).

6 KEN KERSEY, ONE FLEW OVER THE CUCKOO's NEST (Viking Compass ed., Viking Press 1968); MARY J. WARD, THE SNAKE PIT (1946).

7 One such theory, offered by Scottish psychiatrist Ronald David Laing, inverted the “distinction between sanity and insanity”:

Much of Laing's appeal lay in his use of his psychiatric credentials to define the establishment as insane. The sane were mad, the mad sane, and psychiatrists the craziest of the lot. Sometimes Laing suggests there may be such a thing as mental illness after all. It is something from which psychiatrists suffer and that they project upon their patients … . And while in the 1960's all this seemed hyperbole typical of the times, the New Left's assault on the distinction between sanity and insanity would prove the most far-reaching and radical of its many inversions of assumptions underlying the social order.

ISAAC & ARMAT, supra note 4, at 31.

8 PETER MCCANDLESS, MOONLIGHT, MAGNOLIAS & MADNESS 2 (1996).

9 ISAAC & ARMAT, supra note 4, at 48: By the time Asylums came out in 1961, the phenothiazines had revolutionized hospital treatment nationwide. In May 1954 Thorzine appeared on the market and within eight months had been administered to over two million patients. In 1955 … New York became the first state to adopt a complete program of treatment with neuroleptic drugs in all its hospitals.

10 See supra note 5.

11 These theories focused on the internalization of stigma:

Theories fashionable in sociology gave spurious academic respectability to the counterculture's denial of the boundary between sanity and insanity. So-called labeling theorists argued that it was the label, or stereotype, rather than the underlying behavior that lay at the root of a variety of social problems. Applied to mental patients, the theory argued that mental patients were just people who behaved a little differently, were stigmatized by labels, and put in institutions whose baleful influence then caused them to be unable to function independently.

ISAAC & ARMAT, supra note 4, at 14-15.

12 This belief made little headway in the 1960s:

Late in 1961 President Kennedy appointed an interagency committee to prepare legislative recommendations based on the report. I represented Secretary of Labor Arthur J. Goldberg on this committee and drafted its final submission. This included the recommendation of the National Institute of Mental Health that 2,000 “community mental health centers” (one for every 100,000 people) be built by 1980. A buoyant Presidential Message to Congress followed early in 1963. “If we apply our medical knowledge and social insights fully,” President Kennedy stated, “all but a small portion of the mentally ill can eventually achieve a wholesome and a constructive social adjustment.”

… The mental hospitals emptied out … . But we never came near to building the 2,000 community mental health centers … . Even when centers were built, the results were hardly as hoped for. 145 Cong. Rec. S8295-01 (July 12, 1999) (statement of Sen. Daniel Patrick Moynihan).

13 See supra note 9 and accompanying text.

14 The institutions for mental disease exclusion are rarely mentioned in articles discussing civil commitment or mental illness law. For an exception, see Jennen, Susan M., The IMD Exclusion: A Discriminatory Denial of Medicaid Funding for Non-elderly Adults in Institutions for Mental Diseases, 17 WM. MITCHELL L. REV. 339 (1991)Google Scholar.

15 See Shankar Vedantam, A 941-Page Manual Takes on More Weight; ‘DSM’ Will Be at the Center of Debate on Bush's Proposal for Mental Health ‘Parity’, WASH. POST, Apr. 27, 2002, at A02.

16 See Jaffe, D.J. & Zdanowicz, Mary T., Federal Neglect of the Mentally Ill, WASH. POST, Dec. 30, 1999Google Scholar, at A31 (describing one sole exception to the government's conspicuous absence).

The recently released Surgeon General's Report on Mental Health is the equivalent of describing the maiden voyage of the Titanic without mentioning the iceberg. While the report criticizes private insurance companies for failing to provide “parity” in their coverage of mental illnesses, it is totally silent on the failure to provide parity in Medicaid, the federal government's insurance program.

For the most severely mentally ill, private insurance is essentially meaningless. Because of their illness, most are indigent, and private insurance is a luxury they cannot afford and are not in a position to obtain through employment.

Id.

17 “Thirty-one percent of Supplemental Security Income (SSI) recipients have a serious psychiatric disorder; twenty-six percent of Social Security Disability Insurance (SSDI) recipients have a serious psychiatric disorder; thirteen percent of those receiving VA disability benefits have a serious psychiatric disorder.” TREATMENT ADVOCACY CTR., Fact Sheet: Consequences of Non-Treatment, at http://www.psychlaws.org/GeneralResources/Fact1.htm.

18 Private insurance coverage is mandated by the Mental Health Parity Act, Pub. L. No. 104-204, § 702a, 110 Stat. 2944, 2944-45 (1996) (codified at 29 U.S.C. § 1185a (2000)).

19 42 U.S.C. § 1396d(a) (2000).

20 Grants to States for Medical Assistance Programs, Pub. L. No. 89-97, §§ 121 et seq., 79 Stat. 343, 343-53 (1965) (codified at 42 U.S.C. § 1396-1369(d) (2000)).

21 42 U.S.C. § 1396.

22 Wing, Kenneth R., The Impact of Reagan-Era Politics on the Federal Medicaid Program, 33 CATH. U. L. REV. 1, 4 (1983)Google Scholar.

23 Id. at 93 n.5.

24 Id. at 7.

25 42 U.S.C. § 1396d(a).

26 Id. § 1396d(a)(B). Payments made for care of or services for an inmate of a public institution are also excepted. Id. § 1396d(a)(A).

27 Pub. L. No. 101-239, § 6403(d)(2), 103 Stat. 2258, 2264 (1989) (codifed at 42 U.S.C. § 1396d(a)(16) & (h) (2000)). Medicaid funding for “inpatient psychiatric hospital services for individuals under age 21” is available only for:

(A) inpatient services which are provided in an institution (or distinct part thereof) which is a psychiatric hospital as defined … in this title or in another inpatient setting that the Secretary has specified in regulations;

(B) inpatient services which, in the case of any individual (i) involved active treatment which meets [certain specified] standards … , and (ii) a team, consisting of physicians and other personnel qualified to make determinations with respect to mental health conditions and the treatment thereof, has determined are necessary on an inpatient basis and can reasonably be expected to improve the condition, by reason of which such services are necessary, to the extent that eventually such services will no longer be necessary; and

(C) inpatient services which, in the case of any individual, are provided prior to (i) the date such individual attains age 21, or (ii) in the case of an individual who was receiving such services in the period immediately preceding the date on which he attained age 21,

(I) the date such individual no longer requires such services, or (II) if earlier, the date such individual attains age 22.

42 U.S.C. § 1396d(h)(1).

28 Pub. L. No. 89-97, 79 Stat. 286 (1965), reprinted in 1965 U.S.C.C.A.N. 305, 338-39.

29 See the legislative history to the Community Mental Health Centers Act of 1963, Pub. L. No. 88-164, 77 Stat. 282, 290-294 (1963), published in H.R. REP. NO. 88-694 (1963), reprinted in 1963 U.S.C.C.A.N. 1054, 1064-66.

30 As Father John McVean, Franciscan founder of Saint Francis, explained:

From the legislative history, it is clear that the community mental health center was represented to Congress as a facility capable of supplanting the state mental hospital … . However much mental health centers may accomplish in other ways, they will not accomplish the goal for which Congress established the program unless they can stem the flow of the mentally ill to the state hospitals.

ISAAC & ARMAT, supra note 4, at 90 (quoting RAYMOND GLASSCOTE ET AL., THE COMMUNITY MENTAL HEALTH CENTER: AN INTERIM APPRAISAL 11 (1969)).

31 DEUTSCH, supra note 5, at 35:

The problem of providing special hospital care for the mentally ill entailed a number of complicating factors absent in the institutional provision for general patients. While the stay of the average general hospital patient could be measured in days, that of the mental patient had to be measured in years. The financial burden of adequate hospital provision for this class was a heavy one—too heavy for most localities to bear … . For these and other social, economic, and medical reasons, the state was recognized as the only public administrative unit able to provide adequate institutional facilities for the mentally sick.

32 DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 43-45 (1971).

The insane were usually supported at home, their illness making them one of the poor; only when they were uncontrollable, threatening the safety of relatives and neighbors, did towns seek alternatives. Those equipped with an almshouse put lunatics in an empty attic or cellar, to suffer alone. A community that lacked this option sometimes devised a special structure, which however rudimentary or elaborate, was invariably designed as a substitute household. Thus, officials in the early colonial period at times confined the violent insane in shacks and huts set up for the occasion on the commons. One local Pennsylvania court directed a village in 1676 to build “a little block-house” for a dangerous lunatic; unfit to live in another household, he would have a crude one of his own. Even more striking, the designers of the first hospital exclusively for the insane in the American colonies, opened at Williamsburg, Virginia, intended it for a last resort, when the family did not, or could not, take responsibility. The burgesses, concerned that “several persons of insane and disordered minds have frequently been found wandering in different parts of this colony,” established in 1769 a lunatic asylum. Although it might help to cure those not “quite desperate,” its primary task was to preserve the peace of the community, to keep the insane from roaming about. Accordingly, no insane would be admitted to Virginia's new institution if relatives or friends agreed to look after his welfare and behavior. When no one would take the charge, the asylum served as a surrogate household.

Id.

33 ALBERT DEUTSCH, THE MENTALLY ILL IN AMERICA 41-42 (1937).

Public provision, in so far as it was extended to the mentally ill, was mainly directed to the problem of safely disposing of violent cases. Incarceration in jail was the common solution. But there were many localities which could not boast the luxury of a jail in the early days, when the pillory, the whipping post and the gallows … afforded simple and inexpensive means for punishing the refractory in short order … . Thus, the first known provision for the mentally ill in Pennsylvania mentioned in the Upland Court records of 1676, took the following form:

Jan Vorelissen, of Amesland, Complayning to ye Court that his son Erik is bereft of his naturall Senses and is turned quyt madd and yt, he being a poore man is not able to maintain him; Ordered: yt three or four persons be hired to build a little block-house at Amesland for to put in the said madman.

Id. at 41-42 (citing Upland (Delaware County, Pa.) Court Records, 1676-1681 (Memoirs of the Historical Society of Pennsylvania, v.7 102-03)).

34 Id. at 44.

35 Id. at 44-45.

36 “Under outdoor relief, poor-law officers relieved paupers in their homes or boarded them out with citizens who agreed to care for them.” MCCANDLESS, supra note 8, at 20.

37 To care for the poor in early America, four distinct methods were employed:

(1) aid could be provided so that the poor could remain in their own home; (2) their care could be auctioned off to the lowest bidders, that is, to the persons willing to undertake their support at the lowest cost to the community; (3) the support of all paupers could be contracted to a single individual at a fixed price; or (4) the community could support them in a public poorhouse.

RONALD S. ROCK ET AL., HOSPITALIZATION AND DISCHARGE OF THE MENTALLY ILL 12-13 (1968).

38 DEUTSCH, supra note 33, at 117.

39 Id. at 118.

40 ROTHMAN, supra note 32, at 28.

41 MCCANDLESS, supra note 8, at 21.

42 DEUTSCH, supra note 33, at 63-64.

43 Id. at 64.

44 One account of this practice at the Pennsylvania Hospital notes:

Almost from the opening day of the Pennsylvania Hospital, the insane persons hospitalized there were regarded as great curiosities by the public. In 1762 it was noted that “the great crowds that invade the Hospital gave trouble and create so much disturbance” that special security precautions were instituted. According to hospital records, “the insane wing was such an object of public curiosity that the managers decided to charge an admission fee.” Five years later, the fee was increased to four pence to restrict “the Throng of people who are led by Curiosity to frequent the House on the first day of the week, to the great disturbance of the Patients.” Additional restrictions were instituted in 1784 and 1791.

E. FULLER TORREY & JUDY MILLER, THE INVISIBLE PLAGUE 198 (2001) (quoting Scull, Andrew, Madness and Segregative Control: The Rise of the Insane Asylum, 24 SOC. PROBLEMS 338 (1977)Google Scholar); see also E. FULLER TORREY & JUDY MILLER, THE RISE OF MENTAL ILLNESS FROM 1750 TO THE PRESENT (2001).

The Los Angeles Times recently profiled a modern version of the exploitation of the vulnerable mentally ill for entertainment:

For months, the dark videos with the homemade feel beamed out over the Web site: Bedraggled men beating each other to a pulp. A scruffy street person ramming his head into a wall. Another poor fellow ripping out his own tooth with a pair of pliers. But Bumfights.com offered only snippets. If you wanted a full dose of street mayhem, you had to pay for the full video—at $19.95 a pop. By some accounts, 300,000 copies were sold.

Beth Silver, Fight Videos Spark Outcry, Charges, L.A. TIMES, Sept. 29, 2002, at B1.

45 DEUTSCH, supra note 33, at 64.

46 Some states, however, already funded psychiatric hospitals. NORMAN DAIN, DISORDERED MINDS, THE FIRST CENTURY OF EASTERN STATE HOSPITAL IN WILLIAMSBURG, VIRGINIA 1766-1866 ch.1 (1971) (describing the establishment of the first psychiatric hospital in 1773 in Virginia); see MCCANDLESS, supra note 8, at 63 (“In the spring of 1828, the South Carolina Lunatic Asylum opened its doors to receive patients.”).

47 DEUTSCH, supra note 33, at 158.

48 Id. at 166.

The results of two years of investigation were summed up in this manner:

Lincoln. A woman caged.

Medford. One idiotic subject chained, and one in a close stall for 17 years.

Concord. A woman from the hospital in a cage in the almshouse. In the jail, several, decently cared for in general, but not properly placed in prison

… .

Dedham. The insane disadvantageously placed in the jail. In the almshouse, two females in stalls, situated in the main building; lie in wooden bunks filled with straw; always shut up.

Id.

49 DEUTSCH, supra note 5, at 34.

50 Id. at 35.

51 “[I]n the 1830's and the 1840's the states began to build institutions specifically for the mentally ill.” ROCK ET AL., supra note 37, at 14.

52 GERALD N. GROB, MENTAL ILLNESS AND AMERICAN SOCIETY, 1875-1940 4 (1983).

53 In 1948, there were 190 psychiatric hospitals run by individual States operating in the United States. DEUTSCH, supra note 5, at 31.

54 Id. at 41-42.

55 See the legislative history to the Public Assistance Amendments, Removal of Limitations on Federal Participation in Assistance to Aged Individuals with Tuberculosis or Mental Diseases, H.R. REP. NO. 89-123 (1965), reprinted in 1965 U.S.C.C.A.N. 2083, 2084.

56 1965 U.S.C.C.A.N. at 2085.

57 42 U.S.C. § 1396d(a) & (a)(1) (2000).

58 “The residual exclusion of large state institutions for the mentally ill from federal financial assistance rests on two related principles: States traditionally have assumed the burdens of administering this form of care, and the Federal Government has long distrusted the economic and therapeutic efficiency of large mental institutions.” Schweiker v. Wilson, 450 U.S. 221, 241-42 (1981) (Powell, J., dissenting).

59 ISAAC & ARMAT, supra note 4, at 102.

60 For data demonstrating the amount of deinstitutionalization, see Appendix infra.

61 ISAAC & ARMAT, supra note 4, at 102.

62 E. FULLER TORREY, OUT OF THE SHADOWS 103 (1997).

63 Bachman, Sara S., Why Do States Privatize Mental Health Services? Six State Experiences, 21 J. HEALTH POL., POL’Y & L. 807, 818 (1996)Google Scholar.

64 Id. at 821.

As the New York Times recently noted:

With the advent of psychotropic drugs and a shift in popular thinking about treatment, states began in the 1960's to relocate the mentally ill to what were supposed to be more humane settings in communities.

In large part, however, the motivation was money. Through new federal programs like Supplemental Security Income, Medicaid and Medicare, states could shift the financial burden of caring for the mentally ill to Washington. Nowhere was that embraced more than in New York, which had by far the largest psychiatric system of any state. In the 1950’s, it housed 93,000 people and spent a third of its budget on mental health.

The hospital system now has only 4,500 beds, and the state's current mental health budget is $2 billion, 2.4 percent of the state's overall $84.5 billion budget. And while the adult home system remains costly—roughly $600 million a year for housing and healthcare for 15,000 residents—most of that comes from federal coffers.

The federal money, in turn comes with many restrictions … .

For example, the homes—originally intended for the elderly who did not need full time care—are still classified only as residential facilities. That is largely so the federal government, through its aid programs, will foot most of the bill for treatment and services provided by outside professionals who visit the homes. If the state wanted to improve the homes by turning them into mental health facilities, thereby allowing them to provide better on-site and 24-hour care, it most likely would have to provide its own money.

Levy, Clifford J., Ingredients of a Failing System: A Lack of State Money, a Group Without a Voice, N.Y. TIMES, April 28, 2002Google Scholar, at A32.

65 Nat’l Assoc. of State Mental Health Program Directors, Position Statement on Repeal of the Medicaid IMD Exclusion, at http://www.nasmhpd.org/exclusion.htm (last visited Feb. 8, 2003) [hereinafter Position Statement].

66 Jennen, supra note 14, at 368 (quoting HEALTH CARE FINANCING ADMIN., DIV. OF STATE AGENCY FINANCIAL MGMT., TITLE XIX FINANCIAL MANAGEMENT REVIEW GUIDE, NO. 2: IDENTIFICATION OF INSTITUTIONS FOR MENTAL DISEASES 14 (Apr. 1987)).

67 Id. at 369.

68 Id.

69 Schweiker v. Wilson, 450 U.S. 221 (1981).

70 Id.

71 Id. at 223.

72 Id. at 224.

73 “The [lower] court adjudged that the ‘primary purpose’ of the small monthly stipend was to enable the needy to purchase comfort items not provided by the institution.” Id. at 229.

74 Id. at 225.

75 Id. at 230 (internal citations omitted) (quoting San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 43 (1973)).

76 Id. at 231.

77 Id. at 232.

Further, the group excluded is not congruent with appellees’ class. Among those excluded are the inmates of any other nonmedical “public institution,” such as a prison, other penal institution, and another publicly funded residential program the State may operate; persons residing in tuberculosis institution; and residents of a medical institution not certified as a Medicaid provider. Although not by the same subsection, Congress also chose to exclude from SSI eligibility persons afflicted with alcoholism or drug addiction and not under going treatment … and persons who spend more than a specified time out of the United States.

Id.

78 Id. at 241 n. 2, (Powell, J., dissenting).

79 Id. at 239.

80 Position Statement, supra note 65.

81 See TREATMENT ADVOCACY CTR., FACT SHEET: MEDICAID DISCRIMINATION AGAINST PEOPLE WITH SEVERE MENTAL ILLNESS, available at http://www.psychlaws.org/GeneralResources/fact12.htm (last visited Feb. 8, 2003).

Indigent persons who need treatment in a hospital can count on Medicaid to pay for diseases of the heart, liver, blood and most other body organs. Medicaid will not cover the individual if he or she is between the ages of 21 and 65, has a disease in his or her brain and needs care in a psychiatric hospital.

Id.; see also TREATMENT ADVOCACY CTR., NAMI PUBLIC POLICY ON IMD REPEAL, available at http://www.psychlaws.org/HospitalClosure/NAMIPublicPolicy.htm (last visited Feb. 8, 2003) (“The IMD rule is thus discriminatory and works against the provision of necessary healthcare for young and middle-aged adults with brain disorders.”).

82 TORREY, supra note 62, at 4-5.

Research over the past decade has clarified what is wrong with those diagnosed with severe mental illnesses. They have neurobiological disorders of their brains that affect their thinking and moods and that can be measured by changes in both brain structure and function … . Research on schizophrenia, schizoaffective disorder, manicdepressive disorder, autism, and severe forms of major depression, panic disorder and obsessive-compulsive disorder has also revealed a variety of functional disease-related changes in the brains of affected individuals. These include changes in the neurochemistry, metabolism, electrical activity, neurological function, and neuropsychological function of the brain.

Id.

83 TREATMENT ADVOCACY CTR., NAMI POLICY PAPER: IMD EXCLUSION: IMPLICATIONS OF REPEAL, available at http://www.psychlaws.org/HospitalClosure/NAMIPolicy.htm (last visited Feb. 8, 2003).

84 TREATMENT ADVOCACY CTR., BRIEFING PAPER: REPEAL OF THE INSTITUTIONS FOR MENTAL DISEASE EXCLUSION, available at http://www.psychlaws.org/HospitalClosure/Repeal.htm (last visited Feb. 3, 2003) [hereinafter BRIEFING PAPER].

In 1955, with a population of only 164 million, the United States had 558,239 patients in state and county psychiatric hospitals. By 1996, with a population that had increased to 265 million, the number of patients in state and county psychiatric hospitals had dropped to only 61,722. That is an effective deinstitutionalization rate of about 93 percent.

Id.; For a state by state listing of state hospitals’ population reduction rate, see id.; see also Appendix infra.

85 See BRIEFING PAPER, supra note 84.

86 TORREY, supra note 62, at 103.

87 Id. at 104.

88 See generally White, Carla L. et al., Factors Associated with Admission to Public and Private Hospitals from a Psychiatric Emergency Screening Site, 46 PSYCH. SERVICES 467 (1995)Google Scholar.

89 TORREY, supra note 62, at 104.

90 ISAAC & ARMAT, supra note 4, at 281.

91 Hiroeh, Urara et al., Death by Homicide, Suicide and Other Unnatural Causes in People with Mental Illness: A Population-Based Study, 358 LANCET 2110, 2110 (2001)Google Scholar.

92 TORREY, supra note 62, at 23.

93 Id. at 22.

94 ISAAC & ARMAT, supra note 4, at 11.

95 Fuller Torrey, E. & Zdanowicz, Mary T., Editorial, Mentally Ill Can Be Unaware They’re Sick, BOSTON GLOBE, June 9, 2002Google Scholar, at E8.

96 CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, PROFILE OF JAIL INMATES 1996 (1998); BUREAU OF JUST. STATISTICS, U.S. DEP. OF JUST., CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1995 (1997); Jemelka, Ron et al., The Mentally Ill in Prisons: A Review, 40 HOSP. & CMTY. PSYCH. 481-85 (1989)Google Scholar.

These figures are even more shocking when compared to the situation in 1880 after states responded to the mistreatment of mentally ill individuals by relocating them from prisons to hospitals: The comprehensive survey of the mentally ill taken during the 1880 census identified 91,959 insane persons in the United States, and 58,609 incarcerated in jails and prisons. Only 397 persons in jails or prisons were said to be mentally ill (only 0.7% compared with approximately 16% in modern jails and prisons). See BRIEFING PAPER, supra note 84.

97 “Revolving door patients … typically stabilized on medication in the hospital, stop taking it when they leave, and wind up back in the hospital or in jail.” ISAAC & ARMAT, supra note 4, at 311.

98 “There are nearly five times more mentally ill people in the nation's jails and prisons (nearly 300,000) than there are in all of the state psychiatric hospitals combined (fewer than 60,000).” Leifman, Steven, Editorial, Mentally Ill and in Jail, WASH. POST, Aug. 16, 2001Google Scholar, at A25.

99 See ISAAC & ARMAT, supra note 4, at 97 (“By 1977 a Federal General Accounting Office report made official what had been obvious for a decade: not only had the [community mental health] centers developed without connection to the state hospitals but they were often not even in communication with each other.”).

100 The 1989 joint national survey of the National Institute of Mental Health (NIMH) and the National Center for Health Statistics (NCHS) revealed that approximately 200,000 mentally ill individuals are homeless on any given day. CONGRESSIONAL RESEARCH SERVICE, MEDICAID SOURCE BOOK: BACKGROUND DATA AND ANALYSIS (1993 UPDATE) 914 (Comm. Print 103-A) (1993). Some estimates indicate that twenty to forty percent of the homeless suffer from serious mental illness. Id. at 914-915; see also Herschel Hardin, Uncivil Liberties: Far from Respecting Civil Liberties, Legal Obstacles to Treating the Mentally Ill or Destroying the Liberty of the Person, VANCOUVER SUN, July 22, 1993, at A15 (“The public is growing increasingly confused by how we treat the mentally ill. More and more, the mentally ill are showing up in the streets, badly in need of help.”).

These systemic improvements can be considered as the next step in providing care: Community services, including supported residential and rehabilitation programs must be provided in one, integrated system. The model programs all more or less independently discovered what ingredients enable the chronically mentally ill to function in the community; now, finally, mental health authorities must fix responsibility and organize service delivery to meet patients’ needs. As Fuller Torrey emphasizes, responsibility for the mentally ill must be fixed at a single level of government, along with the financial resources to carry out those responsibilities.

ISAAC & ARMAT, supra note 4, at 331.

102 “People who experience acute symptoms of schizophrenia may require intensive treatment including hospitalization. Hospitalization is necessary to treat severe delusions or hallucinations, serious suicidal thoughts, an inability to care for oneself, or severe problems with drugs or alcohol.” NAT’L ALLIANCE FOR THE MENTALLY ILL (NAMI), SCHIZOPHRENIA FACT SHEET, at http://www.nami.org/helpline/schizophrenia.htm (last visited May 2001).

103 Davoli, Joanmarie Ilaria, Still Stuck in the Cuckoo's Nest: Why do Court's Continue to Rely upon Antiquated Mental Illness Research?, 69 TENN. L. REV. 987 (2002)Google Scholar.

104 Act of Oct. 30, 1972, Pub. L. No. 92-603, 86 Stat. 1460 (codified at 42 U.S.C. § 1396d(a)(16) & (h) (2000)).

105 See TORREY, supra note 62, at 4-5; see also supra note 82.

106 DEUTSCH, supra note 33, at 89–90.

107 Mike Clary, The Snake Pit, MIAMI NEW TIMES, July 11, 2002.

108 See supra note 12.

109 ISAAC & ARMAT, supra note 4, at 69.

110 “Among the most important benefits of deinstitutionalization is that the vast majority of patients say they are happier living outside hospitals than inside hospitals … . Benefits of community living frequently cited by patients include more autonomy, more privacy, and more contact with their family and friends.” TORREY, supra note 62, at 85.

111 DEUTSCH, supra note 5, at 35–36.

The great forty years’ crusade of Dorothea Lynde Dix, begun in 1841, greatly stimulated the trend toward removing the insane from poorhouses and prisons to state hospitals.

Humanitarians and medical men united in support of the state care movement. A most important factor favorable to the movement was the absence of medical opposition.

Id.

112 Even in Albert Deutsch's book, which is cited as one of the major inspirations for deinstitutionalization, Deutsch argues not for the abolition of the hospitals themselves, but to improve the quality of treatment and care received by the patients in these hospitals:

Are such conditions [overcrowding, underpaid and overworked staff, inadequate psychiatrists, etc.] an inevitable part of a state care system? I certainly do not think so. In my considered opinion, there is nothing inherently bad in any system of governmentsponsored medicine, including state hospital psychiatry. I offer the “medical revolution” in the Federally operated veterans hospitals under General Omar Bradley as a classic proof of this point. There is no reason why first-rate psychiatry can't be practiced in our state hospitals—if the people demand it with sufficient force and if enough far-visioned men can be found to carry out the public will.

Id. at 142.

113 “[William] Gronfein points out that the greater a state's involvement with Medicaid, the larger the rate of decline in the state's mental hospital population. Patients were transferred from state hospitals to nursing homes in the community to shift the financial burden to the federal government.” ISAAC & ARMAT, supra note 4, at 366.

114 See supra note 110.

115 TORREY, supra note 62, at 83-84.

116 See supra note 82.

117 Studies indicate the partial effectiveness of these drugs:

The availability of neuroleptic drugs also encouraged optimism that … former patients [could be maintained] in the community on the strength of a prescription. Yet, … studies had been published chronicling the limitations of the drugs. Brill and Patton, whose study of psychoactive drugs … was quoted by the Joint Commission [on Mental Illness and Health], emphasized that the drugs were much more effective in reducing “positive” symptoms of schizophrenia, such as delusions and hallucinations, than in the “negative” ones: “occupational inertia, vocational incapacity, and lack of initiative for constructive occupation.” Psychiatrists insufficiently appreciated, they observed, that defects in this area “are not an accidental and secondary problem but a primary and central one directly related to mental illness and especially schizophrenia.”

ISAAC & ARMAT, supra note 4, at 84-85.

118 Specter, Michael, Calcutta on the Hudson; We New Yorkers Are Learning How to Escape From the Giant Army of Homeless People, WASH. POST, Mar. 3, 1991Google Scholar, at C01.

119 DEUTSCH, supra note 5, at 28-29.

120 TORREY, supra note 62, at 206–07.