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Craig B. Garner, Founder, Garner Health Law Corporation

The Insanity of Treating the Insane



By Craig B. Garner
Founder
Garner Health Law Corporation



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Original Publish Date: July 9, 2019

“Heaven wheels above you, displaying to you her eternal glories, and still your eyes are on the ground.” -- Durante di Alighiero degli Alighieri

There Is No Safety In Numbers

Not long ago, health care practitioners treated mental illness by severing connections in the brain’s prefrontal cortex. Surgeons employed this procedure known as “the lobotomy” to reduce symptoms of mental disorder. Those who survived the lobotomy sometimes experienced relief from mental illness as well as less spontaneity, responsiveness, self-awareness and self-control. While the lobotomy has drifted off to medical obscurity, 75 years later an estimated 20 million Americans still embrace the idea that restricting the intellectual and emotional range of the sick mind also cures it.

Treating mental illness relies upon the subjective, while somatic matters approach illness through diagnostic testing which can often yield a more precise diagnosis. That which is psycho has a seemingly unfair disadvantage to somatic, although general medicine has enjoyed far more decades to advance from its early days of leeches and amputations. By comparison mental health treatment exists in its infancy. For the patient, opioids have replaced the orbitoclast (lobotomy’s primary surgical instrument, described as an ice pick with some gradation marks), although the nine million Americans who suffer from mental illness fall somewhere within an estimated 20 million also suffering from substance use disorder (“SUD”).

The concentric circle occupied by the brain both sick and sickened may as well be infinite, at least to the extent modern medicine understands co-occurring disorders. Addiction’s price tag on society, an estimated $740 billion annually in lost productivity, health care expenses and crime-related costs, caught the attention of federal and state leaders, although the propriety of the nation’s response may be just as helpless and irresponsible as a man in the depths of an ether binge. Recognizing a problem does not always identify the best solution, a medical reality faced in the previous century by Civil War soldiers turned patients for surgical procedures on the battlefield.

Mental Health’s Latest Squirrel

Justified or not, the nation’s recent determination to punish a purported cause of addiction in epic proportions creates the illusion of meaningful progress in treating this widespread epidemic. Once federal and state prosecutors charge corporate executives with illegally distributing hundreds of millions of oxycodone pills and fentanyl products to questionable pharmacies, resolution rests in the hands of the judicial system. The number of indictments issued or amount in civil money penalties assessed, however, does little to treat mental illness or those suffering from SUD, and the recent public spectacles provide as much assistance to health care practitioners on the front lines of addiction as a Prometheus bound helped firefighters battle the 2018 inferno in Northern California known as the Camp Fire.

Far from this spotlight, the health care system attempts to reconcile an infrastructure ill-equipped to handle the growing number of those in need with the unexpected cost to provide one of the ten so-called essential health benefits forced into qualified health insurance plans after Congress passed the 2010 Patient Protection and Affordable Care Act (the “ACA”).

No Way to Win the Wrong Fight

The ACA, combined with federal and state mental health parity laws designed to require that health insurance plans provide benefits for medical and surgical conditions on an equal basis as those for mental illness, only solved part of the problem. In recent years insurance companies have taken aim at behavioral health providers, accusing these practitioners of squandering if not stealing the additional funding required under the ACA, the mental health parity laws, and their progeny. With fledgling governmental oversight forced to swiftly meet the needs of an underregulated section of a historically overregulated industry, there has been little buffer between payer and provider.

Unfortunately, an already compromised patient population fell further into the abyss. With billions of dollars at stake, the legal challenges between payers and providers often lost sight that the real enemy was a disease, not each other. Still, patients suffered from these unexpected obstacles preventing access to treatment. Such a result was not new to health care, and previous battles between payer and provider over managed care patients resulted in slightly more standards upon which these two could rely. Managed care patients, however, reaped added benefits in the form of less obstacles to treatment and fewer financial risks when care exists out of network.

Leave No Behavioral Health Patient Behind

Behavioral health patients have struggled historically to find solid ground in health care as well as society. In the nineteenth century, the institution known as the “asylum” promised a kinder, gentler way of treating the mentally ill. Over time, the physical separation of mental health institutions from the traditional hospital created a disparity in treatment due in large part to the substantial financial resources ultimately directed at hospitals, and to a lesser degree the scarlet letter worn by the mentally ill. By the 1950’s, advancements in medication to treat mental illness and a push for its delivery to occur at a community level resulted in mass closings of psychiatric treatment facilities around the country.

Only recently has the science of addiction medicine existed somewhat independently from the treatment of mental illness. At the same time, the overlap between mental illness and SUD is too profound, and mental health care practitioners must always consider dual diagnosis when treating patients from either category. Medical treatment of mental illness exists on a highway with multiple exits, some of which include the risk of anxiety, mood and sleep disorders, as well as the possibility that medical treatment may lead to self-medication, which in turn can lead to SUD.

Navigating through the mental health care minefield is already challenging for health care practitioners. For mental health patients, the system is even less forgiving. Individuals suffering from a medical emergency can rely upon solutions that typically include transportation (also known as an ambulance) to an examination by a licensed health care practitioner at his or her place of work (also known as a hospital). Those suffering from a mental health emergency or even from the effects of alcohol and/or drug use, the method of transportation may vary, and the ultimate destination may be medical incarceration (also known as involuntary psychiatric commitment) or non-medical incarceration (also known as jail), neither of which provide unlimited Jell-O.

True parity requires improvements in the delivery of patient care as well as the ways in which payers render compensation. The conflict between payer and provider does not solve existing treatment disparities, and more than likely will not until both sides look up from the ground and see health care as it evolves from above. Until then, health care may just remain unhinged.

Craig Garner is the founder of Garner Health Law Corporation, as well as a healthcare consultant specializing in issues pertaining to modern American healthcare. Craig is also an adjunct professor of law at Pepperdine University School of Law. He can be reached at craig@garnerhealth.com.