New Trump Administration Regulations and Guidance

June 15, 2018

A message from our colleagues at the Bazelon Center for Mental Health Law ~

The Bazelon Center continues to track new regulations and guidance issued by the Administration. Two have not received sufficient attention: (1) a recent final rule on the 2019 Notice of Benefits and Payment Parameters; and (2) a new privacy guidance:

(1) The Notice of Benefits and Payment Parameters (NBPP) provides rules for health plans in the individual marketplace–each fall it is updated for the upcoming calendar year. With our allies at the Consortium for Citizens with Disabilities,  we provided comment on the proposed rule for 2019. Unfortunately, our concerns were not addressed and the Administration’s recently released final rule for 2019 made several changes that significantly weaken the protections of the Affordable Care Act. These include: allowing-and incentivizing-states to reduce what insurers are required to cover within the ten categories of essential health benefits (including mental health and substance use disorder benefits) mandated by the ACA, increasing the allowable cost-sharing by health plan beneficiaries by 7 percent, and limiting the special enrollment periods which allow individuals to switch health plans in response to unexpected circumstances.

The new rule would eliminate the existing benchmark plan options that states must choose from in determining which essential health benefits (EHB) to cover, and would instead allow states to choose between: (1) using the EHB benchmark plan used by another state in 2017, which would require the choosing state to pay the costs of any services in the other state’s EHB plan that it did not already cover, (2) using particular categories from other states’ 2017 EHB benchmark plans, which would require the choosing state to pay the costs of any services in these plans that it did not already cover, or (3) creating its own benchmark plan by designating benefits for each EHB category, provided that there is an appropriate balance between the categories, the scope of benefits is at least as generous as that under a typical employer plan, and that the benefits not be more generous than those in the most generous plan among various comparison plans. The new rule seems to set up a “race to the bottom,” encouraging states to require coverage of as little as possible within EHB. You can read the entire final rule here.

(2) In December 2017, SAMHSA also released a new guidance document, “HIPAA Privacy Rule and Sharing Information Related to Mental Health,” including Frequently Asked Questions (FAQ) about the Health Insurance Portability and Accountability Act (HIPAA) and people with psychiatric disabilities. This new guidance was created pursuant to the 21st Century Cures Act, in which Congress found there “is confusion in the health care community regarding permissible practices under the regulations promulgated under [HIPAA]. This confusion may hinder appropriate communication of health care information or treatment preferences with appropriate caregivers.”

We highlight this guidance because it has received little attention during the six months since its issuance. Too often, people have advocated reducing the privacy rights that HIPAA gives to people with psychiatric disabilities without understanding the circumstances under which HIPAA already allows disclosure of protected health information. Congress considered these issues in the Cures Act and concluded that what was needed was guidance clarifying HIPAA’s application to people with psychiatric disabilities, not a reduction of privacy rights.

The guidance and the new FAQ highlight how HIPAA is not a barrier to the delivery of good services and appropriate communication if properly understood. They clarify when HIPAA permits health care providers to:

  • Communicate with a person’s family members, friends, or others involved in the person’s care;
  • Communicate with family members when the person is an adult;
  • Communicate with the parent of a minor;
  • Consider the person’s capacity to agree or object to the sharing of their information;
  • Involve a person’s family members, friends, or others in dealing with failures to adhere to prescribed medication or other therapy;
  • Listen to family members about their loved ones receiving mental health treatment;
  • Communicate with family members, law enforcement, or others when the person presents a serious and imminent threat of harm to self or others; and
  • Communicate to law enforcement about the release of a person brought in for an emergency psychiatric hold.

Please share this federal guidance widely.

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