Treatment Communities of America (TCA) is a nonprofit, member-led professional association representing hundreds of community-based behavioral health treatment providers in the United States and Canada. TCA offers this position statement urging the full repeal of the Medicaid Institutions for Mental Diseases (IMD) Exclusion enacted in 1965.
TCA supports patient privacy protections for persons with substance use conditions that allow for collaborative and integrated care across medical, correctional and human service systems. It is critically important that the patient retains the right to have an active role in determining who gets their information and how the information is used to ensure that they can trust the care process that protect them from legal sanctions and discrimination.
Who we are
Treatment Communities of America (TCA) is a consortium of over 600 programs sites providing an array of integrated services which include primary and preventive care, outreach; education, assessment, referral and follow-up; detoxification and crisis management; residential treatment with aftercare support; outpatient services; family therapy; mental health services; vocational assistance and job placement; emergency, transitional and permanent housing with supportive services.
TCA on proposals to change existing patient privacy protections
We believe that the recent changes to 42 CFR Part II in 2017 and 2018 strike a balance for sharing of information across care systems in ways that include patients in determining who gets their information and how their information is used. There is a fundamental lack of understanding about these protections, where they apply, and the ease of providing collaborative care for SUD patients in federally assisted programs with patient consent.
These changes allow for broad sharing of SUD Patient information with the consent of the patient. Changes to the “to whom” section of the consent form allowing sharing with:
• An entity which has a “treating provider relationship” with the patient;
• An entity with which the patient does not have a treating provider relationship and which is not a third-party
payer (such as a specific health information exchange).
• An entity with which the patient does not have a treating provider relationship and which is a third-party
payer; and/or the name of an entity with which the patient does not have a treating provider relationship and which is not a third-party payer (such as a health information exchange);
Additionally, the 2018 Final Rule 2018 final rule allows “lawful holders” of SUD information to disclose information to their subcontractors, etc., if patient has initially consented to disclosure of their record for payment and health care operations purposes.
We are deeply concerned about ongoing efforts and proposals to reduce federal protections to our patients from legal sanctions and the misuse of their information that can expose them to discrimination in areas such as housing, employment, insurance and government benefits.
Our current privacy protections come from the standards set forth by Congress back in 1972, and support collaborative care while protecting our clients from legal sanctions and discrimination. We understand the critical role that these protections provide our patients in order that they can access care without fear of having
their information used in ways that would harm them and reduce access to care as people will be afraid to seek help out of fear of the consequences of seeking help. These protections are as relevant now as they were when first established, perhaps more so due to the ease of information sharing through digital records and how common data breeches are, which we understand currently effects one in three Americans.
As Congress considers proposals to change existing patient privacy laws, we urge you to consider just a few select concerns we have among many:
- Information about Substance Use Conditions is different than other medical information. Information gained to assist a person with a Substance use conditions includes highly sensitive information including the illegal use of drugs. This information must remain highly protected in order that persons feel safe seeking help with their life-threatening conditions. This information can be used to discriminate against persons with substance use conditions in areas such as housing, employment, insurance and government benefits. While there is movement towards aligning our current SUD Patient Privacy Law (42 USC290DD and related regulation 42 CFR Part II) with HIPAA it must be noted that HIPAA does not offer the same level of protection and does not have provisions protecting information related to illegal drug use, which will open up our patients to legal jeopardy and discrimination.
- HIPAA standards are much weaker. Persons and entities outside of the treating relationship will have access to highly sensitive information; for example, the HIPAA definition of “treatment, payment, and health care operations” allows disclosures of confidential SUD information (without the patient’s consent) to entities with collections, fundraising, consumer reporting, sale or transfer of assets, and other functions. The patient can be harmed by these disclosures, while the covered entity and the entities with that perform those functions benefit from them. We also note that there are efforts to weaken HIPAA standards as well.
- Fewer people will seek help. As H. Westley Clark, MD, former Director of the Center for Substance Abuse Treatment/SAMHSA has noted, “Once it becomes clear to all that substance use disorder treatment records could, under HIPAA’s health care operations exemption, be disclosed for administrative things like business planning, customer service, and training of non-health care professionals, there will be even less enthusiasm for medically oriented treatment.”At TCA, we staunchly believe that sharing of addiction and recovery information is an individual choice to be made by the individual who retains control over how it is used – we think that this is fundamental to quality care and consistent with the original statutes and for these reasons, we are opposed to changing the current law while supporting expanded education to medical care and related systems on how to use the current standards to support and expand collaborative care for our patients. We look forward to working with Congress and all stakeholders with the mutual, sincere goal of providing life-saving SUD treatment while also protecting patient privacy.
In the face of an opioid epidemic, the nation cannot afford to continue to bear the unintended constraints of the 50-year old provision under Medicaid that severely impedes availability and access to treatment.
In recent years, there have been several key developments related to the IMD exclusion:
- 43 Governors signed A Compact to Fight Opioid Addiction, which calls for the reducing of administrative barriers in Medicaid to ensure Americans have access to SUD treatment in their communities. The National Governors Association has called for the elimination of the IMD Exclusion for SUD to help states expand access to addiction treatment.
- 29 Senators signed a letter urging the Centers for Medicare and Medicaid Services (CMS) to exclude SUD from the definition of mental disease in the IMD rule.
- Bills have been introduced to end or reform the IMD Exclusion including:
- o H.R. 2938: Rep. Fitzpatrick (R-PA), the Road to Recovery Act, to eliminate the IMD Exclusion for community-based residential treatment
- S. 1169: Sen. Durbin (D-IL) /H.R. 2687: Rep. Foster (D-IL), the Medicaid CARE Act, to increase the bed limits to 40 and allow for reimbursement of 60 days of residential treatment. The President’s Commission on Combating Drug Addiction and the Opioid Crisis Interim Report recommended that all 50 states be granted waiver approvals to eliminate barriers resulting from the IMD exclusion.
Now is the time to join TCA in supporting community-based addiction treatment providers with the expertise and ability to expand education, prevention, and treatment in our communities.
BREAKING NEWS: H.R. 6, the SUPPORT for Patients and Communities Act
On September 28, the House of Representatives passed groundbreaking legislation that will provide urgent relief from the IMD Exclusion. Sec. 5052 of the legislation will do the following:
- Allow states to submit plans so that Medicaid can reimburse for up to 30 days of care for a patient with a substance use disorder in an IMD within a 12 month period; this relief from the IMD Exclusion is to run for 5 years.
- Includes language requiring a state to cover multiple levels of care within the ASAM continuum, as well as language on transitioning to lower intensity care.
- Ensures that individuals can receive their physical health care that would otherwise be eligible if not in an IMD.
TCA applauds Congress for taking this major step forward toward eliminating barriers to accessing residential, community-based treatment for SUD.
The IMD Exclusion Defined
The IMD exclusion is a payment exclusion that is part of Title XIX of the Social Security Act that restricts Medicaid reimbursements to IMDs. Specifically, the IMD exclusion disallows the use of federal Medicaid financing for services provided to individuals in mental health and substance abuse disorder residential treatment facilities larger than sixteen (16) beds. The exclusion applies to all Medicaid recipients under the age of 65, who are patients in an IMD, except for individuals younger than 21, who are receiving inpatient psychiatric services.
The Purpose of the 1965 IMD Rule
The Congressional intent of the IMD exclusion was to encourage the growth of community-based treatment for individuals with mental illness as part of the move to de-institutionalize mental health treatment. However, the IMD exclusion had the unintended consequences of creating a barrier to the provision of substance use disorder treatment in community-based, non-medical/hospital residential programs.
The Differences between an IMD and a Treatment Community
IMD: The Social Security Act defines an IMD as a hospital, nursing facility, or other institution of more than 16 beds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services.
Treatment Community: TCA defines treatment communities as multi-faceted, community-based residential SUD treatment programs that provide non-medical oriented strategies to address addiction. Since treatment communities are community-based, they serve diverse populations with a variety of health needs.
The IMD Exclusion’s Negative Impact on Community-Based Addiction Treatment
Treatment communities are limited by two (2) primary problems caused by the IMD exclusion:
- Problem: The Centers for Medicaid and Medicare Services (CMS) has linked substance abuse with mental health, categorizing addictive disorders as mental disorders under the International Classification of Diseases, 10th Edition (ICD-10).Facts: Alcohol and other drug addiction is a separate identifiable illness. The Substance Abuse and Mental Health Services Administration (SAMHSA) recognizes co-occurring disorders (COD) as the coexistence of two distinct disorders: mental illness and substance use. TCA believes that Medicaid-eligible individuals areentitled to an efficient system of care that matches an individual’s clinical needs with the appropriate caresetting in the least restrictive and most cost-effective manner. Individualized, non-medical, community- based residential SUD treatment is effective.
- Problem: CMS interprets “institution” within the IMD statute to include community-based substance abuse non-hospital residential treatment facilities (i.e., treatment communities). The law disallows the use of federal Medicaid financing for services provided to individuals in IMDs with more than 16 beds.Facts: Community-based treatment communities require a census for the treatment model to be effective. Facilities with 16 beds or less do not achieve fidelity to the treatment community model. In addition, the 16 or less bed restriction makes economic survival impossible for community-based treatment providers while complying with licensure requirements for addiction treatment including staff-to-patient ratios, counseling and coverage hours, etc. Moreover, a new federal IMD rule limits treatment to 15 days in facilities with more than 16 beds. The majority of individuals in residential SUD treatment programs require treatment for more than 15 days to achieve and maintain their recovery consistent with their clinical diagnosis.
Supporting Community-Based Treatment Costs Less
Some who express reservations about the full repeal of the IMD exclusion cite increased costs to the federal government as a primary reason for their resistance. However, TCA asserts that supporting community- based, non-medical treatment options is a cost-effective solution to the Nation’s SUD epidemic.
It has been estimated that allowing Medicaid to pay for all inpatient behavioral health services in IMDs (with a length of stay of less than 30 days) would boost federal spending between $40 billion – $60 billion over a decade.
TCA estimates that as little as 25% of Medicaid funding would be pay for community-based, non- medical treatment, with the majority being allocated to true, medical IMDs.
In comparison, the National Institute on Drug Abuse (NIDA) estimates that abuse of alcohol and illicit drugs is even more costly to our nation, exacting more than $400 billion annually in costs related to crime, lost work productivity and health care.
TCA Call to Action
TCA does not support waivers as the long-term solution to the barriers created by the IMD Exclusion. Waivers are time-limited and state-specific and will limit the long-term effectiveness of community-based providers to address the overall problem of addiction. TCA urges the full repeal of the IMD exclusion for SUD by President Trump through an executive action or a full repeal by Congressional action.