Advocating for Our Profession

Fighting for the interests of the profession and our patients is APA’s highest priority. In my last column, I told you about our Committee on Judicial Action, which manages APA’s involvement in major legal cases, when we become involved as a “friend of the court.” The briefs that we have submitted to the U.S. Supreme Court and other venues have had a major impact on the development of mental health law in this country.

When it comes to shaping policy relevant to psychiatry, of course, not all of the action takes place before a judge. The legislatures of the 50 states have a huge influence on the delivery of psychiatric services and the practice of psychiatry. Moreover, even when the courts are involved, our role as psychiatrists is not always limited to acting as a third party. Sometimes to make things happen, we need to initiate or join lawsuits as plaintiffs ourselves. Both lobbying in state capitals and filing legal actions, however, cost money—often a great deal of money—making funding a critical consideration.

Recognizing these additional advocacy needs for American psychiatry, APA’s Board of Trustees established the Committee on Advocacy and Litigation Funding (CALF), a component of the Council on Advocacy and Public Policy. CALF, one of our most active components, is chaired by Jeffrey Janofsky, M.D., and meets regularly by conference call, and twice a year in person, to oversee APA’s support for advocacy initiatives aimed at the states and the courts. A substantial sum of money, replenished each year, has been set aside by the Board for CALF’s activities.

When it comes to funding advocacy efforts at the state level, CALF works closely with APA’s district branches and state associations. Typically, a district branch submits a proposal to CALF for funding of a set of advocacy activities. Initiatives proposed by district branches may be focused on the development of advocacy infrastructure, for example, the creation of a statewide network of APA members who take responsibility for contacting their legislators about major issues of importance to the field. Often a serious effort is made to link up with other mental health advocacy groups, such as state affiliates of NAMI or NMHA, to form ongoing coalitions that can focus on issues related to the public’s mental health.

Most frequently, though, the district branches that approach CALF have specific legislative targets that they want to pursue. The adoption of a mental health parity bill is an example. Or the state’s psychiatrists may want to ensure protection of the public by opposing licensure of groups lacking adequate qualifications to offer mental health services. And one of the most frequent legislative priorities for APA district branches has been blocking the totally misguided efforts of psychologists to obtain legislative authorization to prescribe medications. A significant portion of CALF’s disbursements has gone to this issue.

CALF funds are used by district branches—which generally commit significant resources of their own as well—to retain additional lobbyists to work on the key issue, to mount public affairs campaigns to inform the public about the matter, to develop educational materials, to obtain legal advice, to fund phone banks and letter-writing campaigns, and to provide staff support for these efforts. The amount of funding can be substantial. The CALF process is one of the most important ways in which APA members’ dues are funneled back to the district branches to support their efforts.

But this is only half the story of CALF. Sometimes the most direct path to changes in policies and practices affecting us and our patients is through the courts.

Although filing a lawsuit has become almost a stereotypical American response to practically any concern—the suit against McDonald’s for failing to warn customers that its coffee was hot being probably the iconic example—a good deal of social science data suggest that the courts are less-effective agents of social change than many people think. Nonetheless, when other channels of reform are closed off, the courts may provide the only remedy.

The Pennsylvania Psychiatric Society’s (PPS) suit against several health plans and mental health managed care carveouts is a good example. The suit challenges the outrageous practices of the managed care industry, which systematically obstruct patients’ access to services and bleed psychiatrists, other mental health professionals, and health care facilities to death by a thousand cuts. Initiated by PPS, the suit has been supported by funding from APA, with CALF overseeing our involvement.

Last winter, the PPS won a major victory in the U.S. 3rd Circuit Court of Appeals, which held that PPS had standing to represent the interests both of its members and of its members’ patients—a precedent-setting ruling (Psychiatric News, March 15, 2002). However, the wheels of litigation grind slowly, and the case continues on its tortuous path through the courts.

More recently, APA’s Board of Trustees voted to sign on to litigation originally brought by several state medical associations against the managed care industry. Often referred to as the “RICO suit,” since it is based on the federal Racketeer Influenced Corrupt Organizations Act, the action targets the practices of the largest managed care organizations in the country. APA is one of several additional organizational and individual plaintiffs that have asked to join the suit since its inception. CALF is working now with the attorneys who brought the case to use APA’s involvement to maximum effect.

Sometimes, CALF is asked to support APA involvement in a variety of legal actions involving APA members, including litigation over hospital privileges, managed care panels, licensure, and the like. Unfortunately, evaluating the merits of each case—especially at the trial level, before a record has been created—is beyond APA’s capacity. Were we to expend our efforts on these cases involving single individuals, with no precedential value and little impact on public policy, it would require all the resources, and more, that APA has available for its advocacy activities.

It is sometimes possible, however, for APA to provide indirect assistance, such as suggesting experts who might testify, or for us to draft letters or affidavits that speak to the general principle at issue, without getting into the facts of the case itself.

The activities of the Committee on Advocacy and Litigation Funding are one more way that APA works to improve the practice of psychiatry and the well-being of our patients. ▪