Health Reform WK-EDGE Mental health reform could include HIPAA, parity updates
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Tuesday, March 1, 2016

Mental health reform could include HIPAA, parity updates

By Elizabeth C. Pope, J.D.

By identifying benefits for mental health and substance use disorders as one of the “essential benefits” that must be offered by qualified health plans, the Patient Protection and Affordable Care Act (ACA) took another step toward expanding the care available to patients suffering from mental illness. Despite this expansion of coverage, some in Congress continue to argue for mental health reform. House Speaker Paul Ryan (R-Wis) sees mental health reform legislation as one of two areas (criminal justice reform being the other) that show “promise” for action in 2016 because “there are some Democrats who are agreeing with us on that.” Bipartisan legislation currently under consideration in both the House and the Senate shows there’s some reason for the Speaker’s optimism.

Need for change

It’s true that the ACA (P.L. 111-148) expanded access to mental health benefits, building on the changes made by the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). However, the statistics surrounding mental illness in the U.S. remain grim. In any given year, one in five adults will experience some form of mental illness, according to data released by Senators Bill Cassidy (R-La) and Chris Murphy (D-Conn). Among younger Americans, 20% of teens aged 13 to 18 live with a mental health condition, causing 50% of them to drop out of school.

Mental illness affects numerous institutions throughout America. In 2016 testimony before the Senate Committee on Health, Education, Labor and Pensions, Penelope Strachan Blake, an emergency room nurse appearing on behalf of the Emergency Nurses Association estimated that in any given shift in her ER, 10 percent of the patients seen will present with psychiatric issues. Nearly twenty-five percent of the prison population has a mental health condition, while twenty-six percent of homeless adults have a serious mental illness.

These issues exist despite the expenditure of hundreds of millions of dollars each year at the federal and state levels. Thus policy makers have come to believe that, in Senator Murphy’s words, “America’s mental health system has been neglected for too long and is in desperate need of reform.”

Two bills

The Senate HELP Committee is currently considering legislation proposed by Senators Murphy and Cassidy to address these issues. Mental health reform legislation has also been taken up in the House: a bill introduced by Representative Tim Murphy (R-Pa) is currently before the House Energy and Commerce Committee. The Senate bill, S. 1945 (Mental Health Reform Act) and the House bill, H.R. 2646 (Helping Families in Mental Health Crisis Act) each address issues such as the allocation of grant funding, issues related to Medicare and Medicaid, and funding for research. In addition, they each take similar (though not identical) approaches to change in these key areas:

  • overhaul of a key federal agency;
  • changing HIPAA privacy rules with respect to mental illness patients; and
  • strengthening mental health parity.

Federal agency overhaul

Both bills would reorganize the Substance Abuse and Mental Health Services Agency (SAMHSA), which was originally created in the early 1990s. William W. Eaton, professor and former chair of the Department of Mental Health, Bloomberg School of Public Health, Johns Hopkins University, noted in testimony before the Senate Help Committee that some of SAMHSA’s activities overlap with those of the National Institute of Mental Health and other agencies.

According to Rep. Murphy, SAMHSA “does not employ a single psychiatrist, and spends billions of taxpayer dollars on grant programs that the Government Accountability Office found to be uncoordinated and lacking requirements that the funds be allocated to evidenced-based programs.”

Under the proposed legislation, an Assistant Secretary for Mental Health and Substance Use Disorders would be created to oversee the expenditure of federal dollars devoted to mental health issues. The bill requires this individual to be a medical professional.

HIPAA privacy rules

Privacy rules enacted under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) govern the extent to which, and to whom, health care providers may disclose information (“protected health information” or PHI) about their patients. The privacy rules were intended to benefit patients, but a concern exists that current HIPAA privacy rules prevent the family members of the mentally ill from participating effectively in their loved ones’ care. Both bills address this concern but do so in slightly different ways.

Senate bill. According to the Senate bill, the barriers that concerned family members experience may not stem from flaws in the privacy rules themselves but rather from misconceptions about the rules held by health care professionals and other stakeholders.

For example, the privacy rule contained in 45 CFR 164.510(b)(2) currently permits the disclosure of PHI if the health care professional (or other covered entity) receives the patient’s consent or “reasonably infers” that the patient does not object. In addition, 45 CFR 164.510(b)(3) permits disclosure of PHI of mentally incapacitated patients if the medical provider determines the disclosure to be in “the best interests” of the patient.

So, rather than change the privacy law, the Senate bill would authorize the Department of Health and Human Services to spend five million dollars between 2017-2022 to develop and distribute model training materials for health care providers regarding the circumstances under which the PHI of patients with a mental illness may be disclosed with, or without, the patient’s consent. Similar model training materials must be developed for legal professionals and for patients and their families. The bill further directs HHS to draw on its own FAQ issued in 2014 regarding HIPAA privacy and mental health.

House bill. The House bill, in contrast, appropriates no money for training. Instead, it takes the position that while the statute might not need to be amended, HHS regulations require clarification in order to serve the needs of individuals with a “serious mental illness.” It would provide that for purposes of applying the rules governing the disclosure of PHI in 45 CFR 164.502(g), health care providers may disclose PHI to the “caregivers” of individuals with a “serious mental illness.” The exception is limited to situations where PHI disclosure is necessary to protect the individual or the general public; the absence of disclosure would worsen the individual’s prognosis or condition; and the individual, by nature of his mental illness, has “a diminished capacity to fully understand or follow a treatment plan.”

Under the House proposal, a “caregiver” is an immediate family member; an individual who has assumed responsibility for the individual; or a State-appointed representative. Individuals “with a documented history of abuse” may not be caregivers for this purpose.

Mental health parity

Since 2008, with the passage of the MHPAEA, certain health plans have been required to provide parity in the benefits offered for mental health and substance disorders with those offered for physical health. The number of plans required to comply with the parity rules increased with the passage of the Affordable Care Act. Mental health benefits must be comparable to physical health benefits with respect to, among other things, co-payments, yearly visit limits, and prior authorization requirements.

Some argue, however, that despite the requirements set forth in the 2008 Act, a pattern of subtle noncompliance exists. According to a policy brief issued by the Robert Wood Johnson Foundation in November 2015, patients, providers and consumer advocates argue that plans use “nonquantifiable treatment limitations” (such as more frequent utilization reviews and stricter medical necessity criteria as a way to make mental health and substance use treatment less available than treatment for other conditions). The Foundation notes it is much harder to determine whether plans are using nonquantifiable treatment limitations to avoid compliance with MHPAEA than it is for quantifiable elements such as the amount of copayments and coinsurance. Uncovering violations is likely to require more investigation than simply reviewing plan documents.

Senate bill. The Senate bill’s approach to this suspected noncompliance is threefold. First, it commissions a study by the General Accountability Office, in part to determine the extent to which the nonquantitative treatment limitations, including medical necessity criteria, used by group health plans and by Medicaid managed care plans, comply with the MHPAEA. Second, the Centers for Medicare and Medicaid Services, the Employee Benefits Security Administration, and the Treasury Department are required to submit a report describing the number of investigations conducted during the year regarding compliance with the 2008 Act and the outcome of those investigations. The bill would also require the issuance of new regulations governing how plans demonstrate compliance with the mental health parity requirements. Third, the Senate bill would require new regulations mandating plans to disclose their compliance efforts with the mental health parity rules. This would include a report from a plan describing the evidentiary standards it used to develop the nonquantitative treatment limitations used for mental health and substance use disorder claims.

House bill. The House bill provides only for the GAO study regarding current compliance with the 2008 Act.

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