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Now, on to the news…
1. Feds’ Plan To Ease Privacy Rules On Addiction Treatment Spurs Debate.
For quite some time now, the Feds have been taking comments about easing the restrictions found in 42 CFR (Code of Federal Regulations) Pt. 2, which regulations were adopted pre-HIPAA to protect persons in treatment for SUD from having their records disclosed and further stigmatizing the treatment process. As NPR reported on March 22nd:
Existing privacy rules are too cumbersome for today’s integrated world, say proponents who favor loosening the rules. Under current Part 2 rules, providers can’t disclose treatment information unless patients give their consent to release it to a specific health care provider.
Part 2 “is well intentioned, but it’s just not working,” said Matt Salo, executive director of the National Association of Medicaid Directors. “These special [treatment] silos are actually hurting people.” The Medicaid program for lower-income people is responsible for a significant and growing share of the money spent on treatment for substance use, Salo said.
The proposal from the Department of Health and Human Services would allow patients to give their consent to disclose their records not just to a specific provider but to the health care system or the accountable care organization with which the provider is affiliated, for example.
Under HIPAA, health plans, providers and health care clearinghouses don’t have to get patients’ consent before disclosing their records to other similar groups and “business associates,” such as claims processing operations, if the disclosure is related to a patient’s treatment, payment or health care operations.
Detractors counter that patients can’t rely on health care systems to keep their information private, as health data breaches have become more commonplace in this digital world.
Comments on the proposed rules are due on April 11.
Our takeaway: We have had many clients call us concerned that the standard HIPAA waiver, which did not also include a separate waiver from 42 CFR Pt. 2, prohibits them from disclosing necessary information even to insurance companies or to physicians treating co-occurring disorders. I think the cat is out of the bag. The rule is changing. It is simply a matter of when.
2. Rhode Island Considers Adopting Its Own Parity Legislation
Rhode Island Attorney General Peter F. Kilmartin announced that Sen. Elizabeth A. Crowley, D-District 16-Central Falls, Pawtucket, is sponsoring a bill that would mandate insurance companies must cover at least 90 days of residential or inpatient services for medical health and substance abuse disorders.
“Unfortunately, Rhode Island has been in the eye of the storm of heroin and fentanyl overdoses,” Attorney General Peter F. Kilmartin said. “While the state has made great strides in providing naloxone, increasing recovery coaches in our emergency rooms, and prosecuting drug traffickers, I believe that we are overlooking essential pieces to this complex problems, and those are appropriate substance abuse education and providing necessary treatment to those suffering from substance use disorders.”
Crowley noted that too many people in the state are dying from overdoses. She believes this partly due to lack of effective medical coverage.
“It is morally wrong to put these people back on to the street to fight their addiction on their own due to monetary insurance reasons,” Crowley said. “If we want our children, friends, and loved ones to stop dying from overdoses, we need to ensure that they receive the proper medical treatment without being refused by the insurance companies.”
According to research done by the National Institute of Drug Abuse Principles of Drug Addiction Treatment, most addicted individuals need at least three months in treatment to help reduce their drug use and addiction.
Our takeaway: For many, such legislation appears to be unnecessary with the passage back in 2008 of the The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA, also referred to as the “Parity Act”). However, insurance carriers are hesitant to provide such equal protection, at least without some form of evidence-based treatment paradigms in place. I blame the federal government and NIH for not sufficiently funding adequate research into SUD treatment. Instead, the current pancea is to pump money into MAT, which further lines the coats of the pharmaceutical industry which got us into this mess in the first place. Moreover, there is not a private cause of action under the Parity Act. Some litigators have found success for insurance plans which were provided by employers under ERISA laws, but for plans obtained privately in the open health care exchange marketplace, there is no such nexus to force insurance to pay. That loophole must be fixed so that, if our legislators and the agencies which enforce the laws fail or refuse to act, private persons can take matters into their own hands, and hopefully also be awarded attorneys’ fees and costs to entice lawyers to engage in what certainly will be protracted litigation.
3. Maryland General Assembly considers mandating certification for sober homes.
As a zoning attorney at heart, I find Anne Arundel County, Maryland and the term “NIMBY” (“Not In My Backyard”) are often synonymous. Frightened by concerns about sober homes in Anne Arundel County, the General Assembly is considering legislation that would require all such residences in Maryland to be certified by a state-approved entity.
Similar to Florida House Bill 21 (2105), Maryland House Bill 1411, introduced by Del. Herb McMillan, R-Annapolis, directs the state’s Department of Health and Mental Hygiene to designate an organization that would inspect and certify recovery residences in Maryland. A list of the credentialed sober homes would be posted online by Nov. 1, 2017.
McMillan drafted the legislation after hearing concerns about a sober home in Hillsmere Shores, a neighborhood in Annapolis. Last summer, community members had a company install video cameras across the street from the home to monitor the comings and goings of the 12 recovering addicts who lived there.
Neighbors said they suspected drinking and drug use at the house, though they could not offer proof that such activities had occurred. The sober home’s manager, meanwhile, denied the accusations and told The Capital he felt targeted by the cameras.
McMillan said his proposal “gives a little bit of uniformity to something that’s like the Wild, Wild West now.”
“There are no standards for those homes that exist in the law,” he said. “It’s a very simple bill that’s meant to address a simple problem … and we might weed out some bad actors.”
Our takeaway: Depending upon who gets elected President, we may be seeing video cameras outside of the homes of everyone who prays to Allah or wears any form of head covering. The anxiety surrounding an unregulated recovery residence is nothing new in Florida. But in Maryland, this smacks of protecting wealth neighborhoods from “those people.” That said, the well-written BuzzFeed article from Cat Ferguson about the atrocities we are experiencing down here speaks for itself.