Disability Rights Oregon filed a motion last week, asking a federal judge to hold Oregon in contempt of court for failing to admit aid and assist cases within seven days. At the same time, a number of bills have been introduced in the Oregon Legislature surrounding mental health. Chris Bouneff is the executive director of the Oregon chapter of the National Alliance on Mental Illness. He joins us to share improvements he hopes the state will make during the Legislative session.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Chris Bouneff started volunteering at the Oregon chapter of the National Alliance on Mental Illness, NAMI Oregon, 20 years ago. He became the executive director in 2009. The nonprofit provides education and support for people experiencing mental illness and their families. It’s also one of the most prominent organizations pushing for systemic statewide change for improvements in outcomes for mental health disorders. Chris Bouneff joins me now to talk about where Oregon is now in terms of mental health care, and where we should be. Welcome back.
Chris Bouneff: Thank you.
Miller: I want to start with some recent news because I think it encapsulates a lot of what we’re going to be talking about for the rest of this conversation. Last week, the advocacy group Disability Rights Oregon filed a motion to hold the state in contempt of court for continuing to fail in meeting the seven-day deadline for taking in patients who cannot aid and assist in their own defense in criminal cases. What are the various fixes that would have to be put in place to address the totality of this gummed up system?
Bouneff: It’s a good question because you have multiple constituencies that need the system to respond to them. Aid and assist is only one facet of that population, and yet right now, because of a federal court case, that’s really the only population the state is focusing on. They have to meet the obligations that the court puts before them. So other priorities give way to that.
Where the challenge is for the state – aid and assist, that’s typically people who we have allowed to be touched by the healthcare system multiple times. We have failed them. They have encountered law enforcement due to the severity of their illness, if it’s someone who’s really suffering with a serious mental illness. And our intervention of last resort is to arrest them. Well, having that population sit in jail is not good for them. It’s not good for our law enforcement system. So we have the system of aid and assist, and restoration. And again, we’ve imbalanced the system.
So how we probably get out of this situation is to begin looking at a total picture and not just pieces of a puzzle. That means, in addition to serving people who have reached this level of acuity, having entered the criminal justice system, we have to keep people out of the criminal justice system. And that means doing a better job farther upstream when someone comes and avails themselves of help, either at the emergency room or at their primary care, or wherever they touch the healthcare system.
If we can look at that total picture, instead of just looking at pieces … We’re really good as a state, and we’re not unusual in this way, we think of things we’re going to do: this piece now and that piece later. We have to draw the whole picture at one time. And if we do that, we can begin serving these different constituencies and hopefully preventing people from ever entering the criminal justice system.
Miller: So let’s stick with this. So you’re saying that instead of entering the criminal justice system, somebody who is in pretty serious need of mental health care shows up at an emergency room – what should happen?
Bouneff: Well, one of two things. In the most severe case, what would happen is that person would be evaluated for civil commitment. So they would enter care, they’d be compelled into care. And it’s what we’re doing with people in the aid and assist system right now. Only for somebody at that level of acuity, could we spare them the criminal record? By and large though, people go to the emergency room, even if we adjusted criteria, they’re not going to meet criteria ...
Miller: Meaning, even if you lower the bar, making it easier for a judge to civilly commit somebody, you’re saying most people wouldn’t even meet those lower standards?
Bouneff: Correct, because they don’t need that. What they need is a healthcare system that doesn’t look at them … Right now, you go to an emergency room – and this is painting with a broad brush – they look at you and decide if you meet criteria or don’t. If you don’t, go on your merry way. There’s nothing we can do for you. And that has been what we have been doing in emergency rooms and other healthcare settings year after year and decade after decade.
We can change how we actually do the business. So when I come into an emergency room in some kind of crisis, actually they slow down, they evaluate, they connect me to services. If they help my support network and my family understand what I do need next to recuperate, and begin delivering that when we first reach into the system, somebody will never reach the level of acuity where we have to compel them into care, whether it’s through the civil involuntary commitment or through aid and assist involuntary commitment.
And think about it. That’s what we do in the rest of healthcare. You show up in crisis anywhere else in healthcare with any other kind of medical or surgical need, and we don’t tell you, “Well, we can’t serve you.” But that’s acceptable in our healthcare system today if you come in with a behavioral health crisis. We’re fine with not serving you.
Miller: How do you explain that? In terms of coverage, it seems like that’s changed at least in the letter of the law, in terms of parity, of what needs to be covered. But in terms of the actual treatment available, how much has changed in 20 years?
Bouneff: Well, percentage-wise, the bar was already low. So it’s like going from one to two. You have a 100% improvement. And we, sort of, have done that. And when I take off my advocacy hat – as an advocate, you often spend a lot of your time mad and frustrated – when you look back, we just haven’t bothered to try for very long.
So how I came into NAMI was working on Oregon’s first iteration of insurance parity legislation, to make sure that behavioral health benefits were available on health plans and were no more restrictive than any restrictions on medical surgical. That was 2005. We didn’t have rules until 2006. This didn’t start rolling out in Oregon until 2007, 2008. We just don’t have a long experience of even wanting to pay for these things.
So the system that has prepared the healthcare workforce, and has prepared the workflows for healthcare, hasn’t even had financial incentives to change its workflows for very long. And healthcare, as we all know, is very complex. It’s very expensive, it’s Byzantine. Seeing reform in health care is very difficult to achieve and we just haven’t had the time horizon really to do that.
We have seen improvements. You go to a lot of pediatric clinics today and they will have behavioral health specialists on staff. With my family, when we encountered something with one of our young people in our family, the pediatrician said there’s nothing we can do for you. You go find help elsewhere. So you see this incremental improvement. But there’s so much more we have to do to evolve the healthcare system, because again, we just cannot rely on things like compelling someone to care again. Whether it’s civil or aid and assist, forcing someone into care is not the right response. It’s only the response of last resort.
Miller: I do want to just stick [with this] for a second because that’s not a panacea. But it is one of the things that you’d like the legislature to look at this year. And this is not the first time you’ve tried this, to change civil commitment law. So what exactly are you hoping lawmakers will pass this year?
Bouneff: It is the first time that NAMI has led the effort.
Miller: But not the first time you’ve been supportive of it?
Bouneff: We have supported some legislation in the past, but we didn’t put our organization behind it. We didn’t try building coalitions. We didn’t do the things we do that make what we take on successful. So we’re doing it this time.
And the case that I make for these changes is that we are committing people today. Only we’re requiring them to be accused of a crime to do it. Then, once they enter the criminal justice system, everybody looks at that person and says, “Hey, they’re acute enough. We need to force them into care.” But the goal for that is to get them well enough so we can prosecute them. So there is no health care goal attached to it ...
Miller: If I could just stop you there … When you make this argument, are you essentially saying that population-wise, or mental health disorder-wise, these populations are pretty similar? The people who are being brought into the criminal justice system now, that’s the way that they are compelled into treatment, through aid and assist. And people who otherwise would be entering into treatment involuntarily, through civil commitment. Is it the same?
Bouneff: It’s not 100%, but it is a big overlap – 40% to 50%. If we can lower our criteria, about 40% to 50% of people we are serving through aid and assist may fall into the civil system instead and never enter the criminal justice system ...
Miller: What specific change you’d like to make? What powers would you like to give judges that they don’t have now?
Bouneff: It’s not more powers. It’s not changing the system we have in any way. What it’s changing, or putting in the statute – what are those criteria by which, when I cross that line, I am acute enough that the state will exercise these extraordinary powers? And what has happened in Oregon is the law has not changed. But every time there is somebody who gets ordered to commitment, they have the right, obviously, of appeal that goes to the Oregon Court of Appeals. And the Oregon Court of Appeals, over time, has taken words in our statute that are not defined and, in case law, defined them. And that’s where we find ourselves today, where really, if I’m so acute that I need to be compelled into care, the only reliable way by which I enter care is being arrested and going to the hospital.
But again, that solves a very specific and very small problem. It doesn’t solve the larger problems. If we do absolutely nothing to keep people from reaching that level of acuity, we will never be able to spend enough. We will never be able to build our way out of our problems. So while we’re advocating for this one small strategic thing, our advocacy NAMI goes merrily on for things like fully funding mobile crisis, for better preparation of the healthcare workforce, for emergency rooms to no longer be able to abdicate their responsibility for someone in a behavioral health crisis that shows up in an emergency room in a behavioral health crisis. These are things that absolutely have to happen if, in totality, we are going to tackle this problem.
Miller: A recent study found that Oregon needs to nearly double the number of beds in its inpatient and residential facilities. Those include a variety of different kinds of services, but we’re talking about various kinds of inpatient services. What will it take to do that?
Bouneff: A lot of money. That report has its flaws. But it’s the first time the state has really asked anybody to look at what our needs are for licensed residential care, for example, or supportive housing, which is sort of a quasi-licensed environment. Needs for substance use disorder treatment, licensed facilities and care. That’s the first time the state has ever really asked the question and got an answer: What do we need?
Not only that, the report breaks the state down by region. So, what do we need to serve populations close enough to them that they can avail themselves of those services? And it’s going to take money. The state did put out a lot of money in 2021, 2022 and 2023
Miller: A billion dollars.
Bouneff: A lot of money to build facilities. That money is still out there. Some of it is unspent just because of certain administrative barriers to really being able to open up new facilities. Some of it’s staffing. I think what it will take, and it’s encouraging to hear the legislature say this, encouraging to hear the governor say it. We created a lot of momentum in 2021. Can the state, even as the economy slows down, as federal money dries up, maintain that momentum? Because what you don’t want to do is just an investment in a moment of time and then forget about it for 10 years, which is essentially what we did 15 years ago. When we rebuilt the state hospital, we sort of patted ourselves on the back and said, “job well done,” and did absolutely nothing between then and 2021.
Miller: So that recent bed study is an example of officials looking statewide to get better data about, essentially in this case, the gulf between supply and demand statewide. Is there other data that you want to see in order for state leaders to be able to better craft policy?
Bouneff: In 2021, I think it was – I’ve been doing this so long, the years run together, as the sessions do – Oregon passed a very sweeping update to its insurance parity law. That’s a law that, again, governs the health insurance in the state, saying you have to have access to behavioral health benefits on par with your medical benefits. Well, we also applied that to Medicaid. So our Oregon Health Plan and our Coordinated Care Organizations, the insurance companies that manage the Oregon Health Plan … part of that said, “OK, both on the commercial health insurance side and the Medicaid side, there needs to be annual reporting on parity that will give us data to help guide policy decisions.”
For example, are our networks sufficient of providers to meet the needs of the member, if I’m a member of a commercial health insurance or if I’m a member of a CCO? Well, the reporting on the commercial side, that’s the Insurance Division, is evolving and getting better. The reporting on the Medicaid side, done by the Health Authority, really is this perfunctory report that gives us no actionable data.
So I think the opportunity for Oregon isn’t necessarily to pass new laws. It’s to take the laws we have and more effectively implement them. That is, in these annual reports, give us real data. Are we improving? Where do we have gaps? And that would allow regulators, legislators and health systems to be much more responsive to, as your point, what’s our supply and what’s our demand? And based on that demand, where do we need more supply or where are we overemphasizing supply, but we need it at some other level of placement?
Miller: Whose job should it be right now to make sure that there is network advocacy, whether we’re looking at Medicaid or private insurers?
Bouneff: Again, it’s two regulatory agencies. That’s our insurance division, which is the Department of Consumer and Business Services (DCBS). And on the Medicaid side, that’s the Oregon Health Authority. And we have, under legislation, granted them wide powers to compel insurance carriers to report data. And to date, I would argue they have not taken advantage of that. Some of it is understandable. This is new, so we’re only a few years into this. And some of it is just not capitalizing on the opportunity this presents. So that’s sort of on the public.
I should note, and we should all acknowledge, that one of the difficulties we face as a state – and this is not unique – is we’re trying to do things completely on the back of public financing. This is the only area of healthcare where we’re completely reliant on how much the state puts in general fund dollars with a federal match to try to drive change. With that said, that means somewhere at the state agency level, you need a very broad visionary, and someone who can implement drastic changes, and do that rather rapidly. And we have never had that at the agency level. And I think that cascades down through the agency, reflective of this annual report, that so far really has not revealed anything because it’s not asking the right questions.
Miller: Let’s say that the insurance division or OHA said, “Wait a minute, you all don’t have enough mental health care providers in network right now.” Would a CCO just turn around and say, “Well, because there aren’t enough people to hire”?
Bouneff: Well, they might. I mean, that’s a legitimate excuse, I would say. But in some cases, we have plans that refuse the contract with certain providers. And they will pay them an out-of-network rate that is not the cost of care. And that goes on. So there’s that, which is a legitimate regulatory intervention. Hey, don’t stop doing that.
And then in other circumstances, maybe we don’t have that service or access to that service. But much like the study that you talked about, in terms of bed need, getting to that level of reporting really gets down to the gaps. And once you have firm targets to go for, that means then we can all problem solve. Then we can say to a CCO, “Great, I understand you can’t get that service. So between now and “X” date, here’s the workaround, because your members have to have access to that.”
We’ve got to figure it out and then as a state we can begin investing or giving incentives to develop that level of placement within that region or that community. So that over the long haul, they do have adequate networks.
Miller: In recent years, I think largely but not solely propelled by the pandemic, I feel like I have experienced a pretty drastic societal change in our openness to talking about mental illness and the need for mental health care. It seems very different now, post-pandemic, than it did 10 or 15 years before the pandemic. Have you noticed that?
Bouneff: Yeah, again, think of what we’ve gone through as a population. Not only the pandemic, which disrupted our lives for years. We’ve reached this new normal. We’re not going back to the olden days, clearly. We’ve had a population-wide event. We’ve experienced that stress and anxiety. We have also endured this ongoing, never-ending election, where our conversations with one another are very caustic. In Oregon, which community is going to be destroyed every summer during wildfires, mass shooting events, the prevalence of natural disasters, protests? I mean, you layer this all on top of a population, in the case of youth, closed schools, what we’re seeing, we should expect, right? We have all been impacted.
That has opened up more conversations. So, for example, we get approached by a lot more employers now to come present and do workshops in places of employment. Pre-pandemic, their entire workforce wasn’t impacted, only a segment of the workforce. So employers didn’t really care. In fact, their strategy was to push out employees and staff who had significant needs. Now, they can’t escape it. Their entire workforce has been impacted. So were all these community systems – places where we recreate, where we work, where we worship. They were all really interested in how do we, as a population, come through this and heal so that we don’t get any worse? And that interest is universal.
Miller: Do you think that societal change will lead to policy changes?
Bouneff: Eventually, yeah. The challenge … We do so much of this on the back of public dollars, that we’re not very nimble at making changes. So we’re relying upon the legislature every two years to come together and make it. Well, you can’t respond to this every two years. So the challenge is, again, how we fold in commercial health insurance, how do we fold in all these healthcare settings? How does the state become much more aggressive in this area and really try to do multiple things per biennium instead of, oh, we’re just going to do this this year and that next year?
The question is, can we rise to the challenge? And I do think the interest is there. I think some of the leadership is there. This is such a mammoth change, and it involves so many different players and pieces, that it’s really hard to get that all moving in coordination.
Miller: Chris, thanks very much.
Bouneff: Thank you for having me.
Miller: Chris Bouneff is the executive director of NAMI Oregon.
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