Although Republicans and Democrats in Congress have gridlocked on many issues, they have managed to agree on new laws regarding mental health treatment and addiction treatment.
By a vote of 422-2, the House of Representatives passed the “Helping Families in Mental Health Crisis Act of 2016” (H.R. 2646). The act now moves on to the Senate.
Emphasis on best practices
The act calls for development of “evidence-based best practices and service delivery models” for providing mental health care. Areas of emphasis include coordination with physical health care, coordination with the corrections system, suicide prevention, and care for children and the homeless.
Several laws, including the Affordable Care Act, provide for parity between physical health care and mental health care. The difficulty in implementation can be in the details. The new mental health act directs regulators in multiple cabinet departments to develop more “illustrative examples of nonquantitative treatment limitations on mental health and substance use disorder benefits” as well as examples of medical and surgical benefits. Regulators will seek to make more clear to providers and patients the circumstances in which various inpatient and outpatient services are appropriate and should be covered.
Another goal of the act is cost savings. Lawmakers believe there have been unnecessary costs in delivery of personal care and home health care services under Medicaid. The act requires development and use of an “electronic visit verification system”—a more reliable method for making sure services are delivered and for tracking the amount of time spent on such services.
The details of this program will be developed between now and 2019 with input from stakeholders. Beginning in 2019, if a state does not have an electronic visit verification system for personal services, the federal government will reduce payments to the state for the state’s Medicaid program. For home health care services, the penalties for noncompliance will begin in 2023. The penalties begin at .25 percent and increase over a four-year period to 1 percent.
Changes in privacy rules
Drafters of the act are concerned that persons with serious mental illness often lack capacity to make sound decisions regarding their care, and that as a result their health suffers.
One of the findings in the act is that people with serious mental illnesses “die 7 to 24 years earlier than their age cohorts primarily because of complications from their chronic physical illness and failure to seek or maintain treatment resulting from emotional and cognitive impairments.”
The act directs the Department of Health and Human Services to amend regulations under the Health Insurance Portability and Accountability Act (HIPAA) in order “to permit health care professionals to communicate, when necessary, with responsible known caregivers of such persons, the limited, appropriate protected health information of such persons in order to facilitate treatment.”
In addition, the regulations are likely to permit providers to have limited communications with law enforcement to help determine when a person should be admitted for mental health treatment instead of being incarcerated. As with the regulations about the electronic visit verification system, there will be an opportunity for input by stakeholders and the public before the new privacy regulations are finalized.
When Congress wants to give added attention to an issue, one of its techniques is to make adjustments to the command structure of the department that is handling the issue. The mental health act creates a new high-level position in the Department of Health and Human Services: “Assistant Secretary for Mental Health and Substance Abuse.” There also will be a new “Deputy Assistant Secretary.” The act authorizes a variety of task forces to assist with implementation and directs that the department make periodic reports to Congress about progress on mental health issues.
Addiction and recovery act
In July, Congress, with strong bipartisan support, passed the “Comprehensive Addiction and Recovery Act of 2016” (S. 524). President Obama signed the bill into law (Public Act 114-198).
The act is designed to update best practices for pain management and prescription of pain medication, particularly opioids. The new law will fund multiple initiatives, including research, alternatives to opioids, and more treatment facilities. The act has specific programs for treatment of veterans, prisoners and pregnant women.
The new law also provides funding for programs to increase availability of opioid overdose reversal drugs such as Naloxone. In order to make addiction treatment more available, the list of practitioners authorized to dispense or prescribe narcotic drugs for maintenance or detoxification is expanded. The authorized prescribers include licensed nurse practitioners and physician assistants, provided they have had proper training. If state law requires oversight of non-physicians, supervision or collaboration still may be required.
In 2016, the Centers for Disease Control and Prevention issued guidelines for the use of opioids for chronic pain other than active cancer treatment and end-of-life care.
Funding for the Addiction and Recovery Act was a source of tension. The Obama administration wanted $1.1 billion. Republicans wanted about half that amount. When the bill passed the Senate in July, the level of funding was not completely certain. The bill said the new programs were authorized, but the actual dollar amount won’t be set until an appropriations bill is passed later in the year.
In a year with high levels of political conflict, it was refreshing to have two health care acts receive bipartisan support. As the new Congress convenes in 2017, we’ll see how long the cooperation continues.
Jeff Atkinson teaches health care law at DePaul University College of Law in Chicago.