Mental Health Matters Act

Floor Speech

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Mr. SCOTT of Virginia. Mr. Chair, I rise today in strong support of the Mental Health Matters Act, led by the gentleman from California, Mr. DeSaulnier.

The COVID-19 pandemic has exacerbated the mental health crisis among students, workers, and families.

In 2021, over 44 percent of students experienced persistent feelings of sadness or hopelessness; almost 20 percent seriously considered suicide; and 9 percent actually attempted suicide. Regrettably, 80 percent of youth in need of mental health services do not have access in their communities.

As a result, educators have been forced to play an outsized role in supporting and responding to students' mental health needs, leading to increased depression and trauma among educators. However, our schools do not have the specialized staff necessary to respond to the increased prevalence and complexity of students' mental health needs.

According to a 2019 ACLU study, no state met the student-to-social worker ratio of one social worker to every 250 students, as recommended by the National Association of Social Workers. Furthermore, the national ratio of school psychologists per students during the 2020- 2022 school years was one psychologist per every 1,100 students--more than double the ratio recommended by the National Association of School Psychologists.

The rise in mental health challenges is not isolated to students and educators. Nearly half of the U.S. workforce now suffers from mental health issues since the COVID-19 pandemic began.

Yet, many workers are denied the mental health and substance abuse disorder benefits they are legally entitled to receive under their employer-sponsored health plan.

In a recent report to Congress, the Departments of Labor, Health and Human Services, and the Treasury found widespread violations of the Mental Health Parity and Addiction Equity Act by group health plans and insurers who are failing to maintain parity between mental health and substance abuse disorder benefits and physical health benefits. Further, the report recommended that Congress enhance the Secretary of Labor's capacity to enforce the parity law, including providing the authority to impose civil monetary penalties for violations. Notably, this same recommendation was made by former President Trump's Commission on Combatting the Opioid Crisis, which was led by then- Governor Chris Christie.

In response to these violations and the national mental health crisis, the Chair of the Subcommittee on Health, Employment, Labor, and Pensions, Mr. DeSaulnier, introduced the Mental Health Matters Act, which includes proposals championed by several Committee Members.

This legislation:

Helps Head Start agencies implement evidence-based interventions to improve the behavioral health of children and staff wellness;

Improves trauma-informed services in schools by developing innovative initiatives to link schools and local educational agencies with local trauma-informed support and mental health systems;

Requires colleges and universities to accept existing documentation of disability and provide reasonable accommodations so that disabled students can achieve success in higher education;

Provides the Department of Labor with enhanced authority to ensure that private, employer-sponsored group health plans and insurers fulfill their responsibility to provide mental health and substance abuse disorder benefits;

Strengthens protections to ensure workers receive behavioral health care and other benefits they have earned under their job-based plans; and, finally,

Directs the Department of Education to award grants to build a pipeline of school-based mental health services providers and increase the number of mental health professionals serving in elementary and secondary schools in high-need areas.

Simply put, the Mental Health Matters Act delivers the resources that students, workers, and families need to improve their well-being.

I want to thank the gentleman from California, Mr. DeSaulnier, for championing the bill. I also want to thank those that had sponsored bills that were included in this legislation: the gentle lady from California, Ms. Chu, the gentlelady from Massachusetts, Assistant Speaker Clark, the gentle lady from Connecticut, Ms. Hayes, the gentle lady from Oregon, Ms. Bonamici, the gentleman from Connecticut, Mr. Courtney, and the gentleman from New Jersey, Mr. Norcross, for their leadership in helping to put together this legislation.

Mr. Chair, I include in the Record the following letters in support. National Education Association, Washington, DC, May 17, 2022. Education and Labor Committee, House of Representatives, Washington, D.C.

Dear Representative: On behalf of our 3 million members and the 50 million students they serve, we urge you to address the pressing need to modernize America's public school facilities and address the mental health crisis among students. Specifically, during the May 18 markup session, we urge you to support the:

Reopen and Rebuild America's Schools Act (H.R. 604)--This bill would create a $100 billion grant program and $30 billion tax-credit bond program targeting high-poverty schools whose facilities pose health and safety risks to students and educators. It would also provide the means for such schools to operate safely in accordance with Centers for Disease Control and Prevention (CDC) guidelines, including heating, ventilation, and air conditioning (HVAC) systems. America spends more on public school facilities than any part of our infrastructure except roads and highways, yet many of our 100,000 public school buildings are poorly equipped or in poor physical condition-so poor it undermines student learning. The federal government, however, remains noticeably absent from any meaningful investment in this area.

Enhancing Mental Health and Suicide Prevention Through Campus Planning Act (H.R. 5407)--This bill would promote positive mental health among college students and encourage comprehensive planning on college campuses to prevent suicide and other mental health crises.

Campus Prevention and Recovery Services for Students Act (H.R. 6493)--This bill would promote evidence-based prevention and intervention strategies on college campuses. It would also encourage integration and collaboration among campus-based health services to address substance use and mental health. Mental Health Matters Act (H.R. 7780)--This bill would promote the use of evidence-based mental health, social- emotional, and behavioral health interventions for young children enrolled in early education programs like Head Start. It would also create a grant program to increase the number of school-based mental health services providers.

Please support this vitally important legislation. Sincerely, Marc Egan, Director of Government Relations, National Education Association. ____ National Association of School Psychologists, Bethesda, MD, September 28, 2022. Support for Mental Health Matters Act,

Dear Representative, On behalf of the National Association of School Psychologists (NASP), we encourage you to support swift passage of the Mental Health Matters Act and the package of bills it includes. NASP represents 24,000 school psychologists who work with students, families, educators, administrators, and community members to ensure that every student has access to comprehensive mental and behavioral health support. We are a nonpartisan association committed to advocating for research-based policies and practices that ensure all children have the supports they need to thrive at school, at home, and throughout life.

Schools play a critical role in our mental and behavioral health care system, and the widespread shortage of school psychologists and other school-based mental health professionals exacerbates existing challenges to addressing the growing number of students' mental and behavioral health concerns. In order to provide necessary comprehensive services, NASP recommends a ratio of one school psychologist per 500 students. Current data estimate a national ratio of about 1:1200; however, great variability exists among states, with some states approaching a ratio of 1:5000. Shortages in school psychology significantly undermine the availability of high-quality services to students, families, and schools, particularly in rural, underserved, and other hard to staff school districts. The Mental Health Matters Act would provide much needed support for schools and school-based mental health professionals to address shortages and expand access to mental and behavioral health supports by passing the Elementary Secondary School Counseling Act and the Building Pipeline of School-Based Mental Health Service Providers Act.

School psychologists are also integral to supporting students with disabilities, and we provide critical supports to students, educators, and families regarding special education. We recommend the passage of the Respond, Innovate, Succeed, and Empower Act, which expands access to needed accommodations and supports for college students with disabilities. Additionally, we encourage the passage of the Supporting Trauma-Informed Education Practices Act through the Mental Health Matters Act. Its passage would not only increase student access to evidence-based trauma support services and mental health care, but it would also support the mental health of our educators and other school staff, which is a necessary component of providing comprehensive mental and behavioral health supports to students.

Thank you for your leadership and commitment to providing comprehensive mental and behavioral health supports in schools. We look forward to working with you on this critical issue. If you have any questions or would like to follow up, please contact Dr. Kelly Vaillancourt Strobach, NASP Director of Policy and Advocacy,. Sincerely, Kathleen Minke, PhD, NCSP, Executive Director. ____ AFSCME, Washington, DC, September 29, 2022. House of Representatives, Washington, DC.

Dear Representative: On behalf of the 1.4 million members of the American Federation of State, County and Municipal Employees (AFSCME), we write in support of Congressman Mrvan's amendment to direct the National Institute for Occupational Safety and Health (NIOSH) to study and make recommendations for workers whose mental health is negatively impacted by their job. AFSCME members and workers across the nation work in high stress positions including but not limited to public safety, health care, emergency medical services and firefighters. Workers such as these already face workplace stressors that have been exacerbated by the COVID- 19 pandemic forcing essential workers to the brink of a mental health crisis.

Throughout the pandemic public safety officers, health care workers and other essential workers answered the call. But even before the pandemic many of these occupations were at an increased risk of mental health issues because the nature of their jobs routinely involves stressful, hazardous, potentially violent and traumatic situations. A study from the University of California Berkley found the rate of correctional or parole officers who have considered suicide is three times that of the general population. Other research found suicides rates among correctional officers to be as high as 12 times that of the general public. Nurses and doctors have burnout rates and staffing shortages that directly impact the health care system. A 2020 study conducted by Mental Health America showed that 76% of health care workers reported exhaustion and burnout while 75% reported they were overwhelmed. There is incontrovertible evidence that this is a national issue that demands a comprehensive federal scale response.

This amendment recognizes the need to address mental health at an organizational level. It takes a modern approach to fund and set up much needed research on workplace and organization changes that can improve the mental health outcomes of workers in high stress occupations. Moreover, this amendment recognizes that it is time we stop adding to the burden of probation officers, correction officers, public safety workers, health care workers and others by demanding that they ``deal with it'' outside of work or figure out how to provide self-care when the nature of the work leaves them burnt out, stressed, or in despair that they do not want to share.

This amendment requires NIOSH to conduct research and fund training to identify what workplace interventions make a difference and achieve better mental health outcomes for workers. It calls for NIOSH to consult with other appropriate federal departments and agencies to establish a research program to identify best practices and interventions for occupations with an elevated risk of workplace stress, post- traumatic stress or suicide attempts. The focus on best practices and recommendations would be on occupation-related or work organization interventions to improve mental health outcomes to lay the groundwork for a federal response to the mental health crisis faced by everyday workers.

We ask these workers to put themselves in danger for public safety. It is time for Congress to support essential and front-line workers' mental and physical well-being. We ask you to support Congressman Mrvan's amendment to study workplace stress and support everyday workers' mental health. Sincerely, Edwin S. Jayne, Director of Federal Government Affairs. ____ September 27, 2022. Hon. Nancy Pelosi, Speaker, House of Representatives, Washington, DC. Hon. Kevin McCarthy, Minority Leader, House of Representatives,Washington, DC.

Dear Speaker Pelosi and Minority Leader McCarthy, Our organizations write in strong support of two critical provisions (Titles VI and VII) contained in the Mental Health Matters Act (H.R. 7780) that take important steps toward ensuring parity in coverage of mental health and substance use disorder (MH/SUD) care and strengthening Americans' coverage rights under ERISA. We urge the full House to pass H.R. 7780.

The Strengthening Behavioral Health Benefits Act (Title VI) would provide civil monetary penalty authority to the U.S. Department of Labor (USDOL) to enforce the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). Providing USDOL this authority will make recent MH/SUD investments (e.g., those contained in the Bipartisan Safer Communities Act) go much further by ensuring that insurance companies are meeting their parity responsibilities and are not the unintended beneficiaries of taxpayer funds that effectively displace insurance reimbursement.

Civil monetary penalty authority will position USDOL--which has one investigator for every 12,500 plans--to step in more aggressively when necessary to change plans' coverage practices, make parity a reality, and increase access to life-saving treatment. This provision carefully balances the interests of Americans seeking MH/SUD care with insurers, plan sponsors, and administrators attempting to comply with the law. By adding MHPAEA to USDOL's existing civil monetary penalty authority for violations of the Genetic Information Non-Discrimination Act (GINA), this provision captures the existing safe harbor provision that protects insurers, plan sponsors, and administrators that exercise ``reasonable diligence'' to comply with the law.

Civil monetary penalty authority to ensure compliance with MHPAEA has enjoyed bipartisan support in the past. The 2016 Mental Health and Substance Use Disorders Parity Task Force strongly recommended providing this authority, as did President Trump's Commission on Combating Drug Addiction and the Opioid Crisis. In fact, former New Jersey Governor Chris Christie, chair of the Commission, stated that the authority is ``absolutely necessary'' and that the Commission ``unequivocally'' supported Congressional action to give USDOL the authority to issue penalties. We also strongly support Title Vi's increased appropriation authorization for the Employee Benefits Security Administration and the Solicitor of Labor to ensure compliance with ERISA, including the Federal Parity Act.

Our organizations also strongly support the Employee and Retiree Access to Justice Act (Title VII), which includes critical patient-protection provisions for the 136 million Americans enrolled in ERISA health plans. This legislation would prohibit ERISA plans from inserting provisions into plan policies (except when agreed to as part of bona fide collective bargaining agreements) that force beneficiaries into mandatory binding arbitrations, taking away their access to federal courts in order to protect their rights under ERISA. The expansion of these clauses threatens to undermine Americans' ability to challenge wrongful coverage denials in the courts. Congress must act to ensure that ERISA beneficiaries' rights are protected. In particular, arbitration clauses would require beneficiaries to bring individual arbitrations to challenge even widespread policies that adversely impact thousands of individuals. Not only would such an individual arbitration process provide no ability to compel insurers to alter their behavior, allowing even clear cut misconduct to continue across the board, but most beneficiaries would be unable to identify attorneys to bring the claim at all, given that attorneys would have no financial incentive to do so. Thus, binding arbitration would only serve the interests of the insurance companies at the clear expense of ERISA beneficiaries.

The Employee and Retiree Access to Justice Act also addresses the unfairness of ERISA plans requiring beneficiaries to litigate their claims subject to an impossibly high burden of proof. By inserting ``discretionary clauses'' into their plan policies, ERISA plans grant themselves broad discretion to interpret the meaning of the terms of the policies they administer and the facts they consider when adjudicating benefits under these policies. Many ERISA plans use discretionary clauses as a strategy to evade liability for improperly denying benefits, particularly for mental health and substance use disorders, because discretionary clauses obligate courts to broadly defer to insurers' coverage determinations. (See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).) Under the deferential standard of review, courts only reverse benefit denials that are found to be ``arbitrary and capricious''-- even if they are incorrect determinations. In contrast, under state law, where insurers are generally not deemed to be fiduciaries, such deference is not granted. Instead, courts apply the ordinary, civil standard of de novo review and reverse insurers' benefit determinations that are wrong on the merits.

Ironically, the discretion courts grant to ERISA fiduciaries based on the application of these discretionary clauses actually conflicts with the underlying purpose of ERISA. In adopting ERISA, Congress made clear that it was designed ``to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, . . . by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.'' (29 U.S.C. 1001(b)). Thus, while ERISA was intended to place a heightened duties on fiduciaries, discretionary clauses have instead shielded fiduciaries from accountability for their misconduct--a perverse result given the legislative history.

A recent example of the perverse impact of the judicially- created, deferential standard of review is Wit v. United Behavioral Health, No. 14-CV-02346-JCS, 2019 WL 1033730 (N.D. Cal. Mar. 5, 2019), rev'd, 2022 WL 850647 (9th Cir. Mar. 22, 2022), an ERISA case that has been recognized nationwide as a landmark for mental health patients. Despite a devastating 100-9page plus trial decision, which found that United Behavioral Health had breached its fiduciary duties by placing its own financial interests over the needs of its beneficiaries by denying nearly 70,000 claims based on substandard medical necessity guidelines that conflicted with generally accepted standards of care (``GASC''), in express violation of plan terms and the laws of four states, a 9th Circuit panel recently reversed that decision in a sparse, seven-page decision.

In reversing this landmark decision, the panel completely ignored detailed and extensive findings of fact, including that UBH had lied to regulators about its medical necessity guidelines and that its financial officers had vetoed UBH clinicians' unanimous preference to use non-profit guidelines that would have complied with GASC solely because the change would cost more money for UBH. Instead, the panel reversed this important holding solely based on the standard of review, finding that it was ``not unreasonable'' for UBH to interpret its ERISA plans to allow it to apply medical necessity guidelines that were substantially more restrictive than generally accepted standards of care.

In other words, the panel did not determine if using medical necessity guidelines that were more restrictive than GASC was actually consistent with the plan terms, nor did it consider whether UBH's actions to place its own interest above that of its insureds violated its fiduciary duties, but instead it simply deferred to UBH's conclusions. As a result, if allowed to stand, tens of thousands of insureds will lose their ability to challenge UBH's denials, and it--and other insurers--will be able to continue using overly restrictive medical necessity guidelines going forward. This proposed statute is required to prevent such a travesty from happening in the future.

Nationally, there is a clear movement by states regulating fully insured ERISA plans to ban discretionary clauses. In fact, the National Association of Insurance Commissioners (NAIC) has adopted a model law entitled the ``Prohibition on the Use of Discretionary Clauses Model Act.'' The NAIC describes the purpose of the model act to prohibit discretionary clauses ``to assure that health insurance benefits and disability income protection coverage are contractually guaranteed, and to avoid the conflict of interest that occurs when the carrier responsible for providing benefits has discretionary authority to decide when benefits are due.'' Recognizing the pernicious effects of discretionary clauses in insurance policies, nearly half of states have banned these clauses.

Because discretionary clauses are a powerful tool that insurers have to self-justify coverage decisions, such clauses have become ubiquitous. Where they are allowed to stand, patients are at a terrible disadvantage in challenging wrongful denials of healthcare coverage. This is because, in turning to the courts to challenge wrongful denials of benefits, patients must overcome a very high evidentiary bar by proving that their insurers' determinations were ``arbitrary and capricious.'' This is true even if courts believe that, on an equal weighing of the evidence, the insurers' determinations were inconsistent with the terms of the insurance policies and/or relevant facts known to the insurers. As the NAIC recognizes, this paradoxically means that coverage promised in insurance policies is not necessarily contractually guaranteed.

Federal Circuit Courts have articulated the unfairness that can result from applying a discretionary review in benefits cases, while various federal trial courts have noted that the standard of review in benefits matters is determinative and that the abuse of discretion standards of review permits incorrect outcomes.

If discretionary clauses were prohibited for ERISA plans such outrageous scenarios would no longer be permitted, because patients would have their claims adjudicated using an equitable de novo standard of review (meaning from the beginning, or without deference to the insurer's decision). This standard means that courts give patients and insurers equal consideration when deciding whether the insurers' coverage determinations were wrongful. The evidentiary standards applied by courts in benefit cases are not academic. Time and time again, the effect of discretionary clauses is that patients have little or no recourse for wrongful benefit determinations.

We urge you to support these critical provisions to help ensure mental health and addiction parity and protect more than 130 million Americans' coverage rights under ERISA. Sincerely,

American Foundation for Suicide Prevention, American Psychiatric Association, American Psychological Association, Depression and Bipolar Support Alliance, Eating Disorders Coalition, Families USA, The Kennedy Forum, Health Law Advocates, Mental Health America, Mom Congress, National Federation of Families, National Association for Behavioral Healthcare, National Health Law Program, Psychotherapy Action Network, REDC Consortium, SMART Recovery, Treatment Advocacy Center, 2020 Mom. ____

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