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APA Practice Organization Opposes Health Plan Bill on Several Fronts
April 19, 2006 – The Senate is expected to vote next month on a controversial health bill that could threaten health care coverage for millions of Americans. The APA Practice Organization is working vigorously to oppose this measure, known as the Health Insurance Marketplace Modernization and Affordability Act (HIMMA).
A purported goal of the HIMMA legislation is to decrease the number of uninsured Americans. However, the measure would actually threaten millions of Americans’ insurance coverage because it would allow health plans to provide benefits without important state protections, including access to adequate mental health benefits and necessary psychological services.
The HIMMA bill, sponsored by Sen. Mike Enzi (R-WY), would in effect preempt state protections that now apply to state-regulated individual and group health plans, including those for persons who seek mental health care. This means that employers would be able to provide "barebones" health plans without even basic coverage for mental health and other important benefits. The bill would override existing parity laws in 39 states and preempt mental health benefit mandates in 32 states.
The HIMMA bill would also preempt the psychology “freedom of choice” laws in 42 states and the District of Columbia. These pro-competition “freedom of choice” laws give consumers the option to choose a psychologist as their provider if their health plan covers psychiatrist services.
In addition to eliminating mental health protections, the legislation would allow health plans to bypass state laws requiring coverage for cancer screenings, well-child care, and maternity care, and other vital and basic services that foster early intervention and cost-effective treatment.
HIMMA would also expand association health plan (AHP) legislation that the APA Practice Organization has advocated against for several years. It would exempt health plans sponsored by small business and professional groups, known as Small Business Health Plans (SBHPs) or AHPs, from state laws that protect consumers, including mental health parity and mandate laws.
APA Practice Organization Advocacy Efforts
The APA Practice Organization is working closely with its grassroots advocacy network and co-chairing a coalition of more than 100 consumer and provider groups to counter HIMMA and to make the case to Congress that strong state mental health laws need to remain in place. Members of the coalition include the National Partnership for Women and Families, the American Diabetes Association, and the American Cancer Society.
APA federal advocacy coordinators have mobilized their grassroots networks and generated more than 13,000 constituent emails to U.S. senators, governors and attorneys general, opposing HIMMA and underscoring that the legislation would preempt important health care regulations in every state. These efforts have resulted so far in several letters opposing the legislation from attorneys general in such states as California, Illinois, Minnesota and New York and from state governors. Grassroots advocacy by professional psychology has also resulted in more than a dozen letters of opposition to HIMMA from State Insurance Commissioners.
At the APA Practice Organization’s 2006 State Leadership Conference, APA members urged senators to reject HIMMA. “Most Senate offices were unfamiliar with the flaws in this controversial bill until psychologists visited,” said Peter Newbould, director of congressional and political affairs in the Practice Organization.
The Practice Organization and its advocacy partners are working to secure editorials, op-eds and letters to the editor opposing the HIMMA legislation in newspapers nationwide. The Florida Times-Union has published a letter to the editor from an APA member, and newspapers in Iowa and Kentucky have published op-eds from the American Diabetes Association, a member of the coalition fighting HIMMA.
APA federal advocacy coordinators are also arranging opportunities for constituents to express their concerns about HIMMA directly to key senators in their home districts. Activists have organized district meetings and attended senators’ town hall meetings to state their opposition to the legislation. In addition, the Practice Organization’s government relations staff has led coalition meetings with numerous senate offices to express their concerns about the legislation.
The Practice Organization is also working to educate members of the news media about the HIMMA bill. On April 19, Russ Newman, PhD, JD, executive director of APA's Practice Directorate, participated in a media round table featuring health care policy experts, individuals speaking on behalf of health-affiliated organizations such as the American Cancer Society and the American Diabetes Association, consumers, and a small business representative. Participants discussed how the bill will affect health care coverage for millions of Americans.
Newman stressed that passage of HIMMA could affect millions of families trying to access quality health care, and added that the measure could negatively impact U.S. businesses as well.
“We already know that untreated mental health disorders cost the U.S. economy $79 billion each year in lost productivity and absenteeism,” said Newman. “And that is with the existing state mental health laws. Imagine how that figure could escalate if people currently receiving mental health treatment are cut off.”
The Senate is expected to vote on the HIMMA bill during the first week in May. As of April 19, the measure appeared headed for an extremely close vote.
For more information about or to take action on HIMMA, visit the Legislation Action Center at www.APApractice.org/#.
Final HIPAA Enforcement Rule Takes Effect
March 28, 2006 -- If you thought that the federal Health Insurance Portability and Accountability Act (HIPAA) lacked the “teeth” of enforcement, think again. The federal government just made effective new regulations that establish how the U.S. Department of Health and Human Services (HHS) will determine liability and calculate fines for health care professionals who violate any of the HIPAA Rules.
The new HIPAA Enforcement Rule, published by HHS in February, just took effect on March 16. The rule makes enforcement regulations applicable to all of the major HIPAA rules: the Privacy, Security and Transaction Rules. Much narrower in scope, the previous enforcement regulations applied only to the Privacy Rule.
The HIPAA Privacy, Security and Transaction Rules pertain to covered entities including health care professionals whose activities “trigger” HIPAA. This happens, for example, when a psychologist transmits protected health information in submitting health care claims electronically. (Additional information about actions that trigger HIPAA is available in the "HIPAA Compliance" section of www.APApractice.org/#.)
The remainder of this article highlights additional important aspects of the new Enforcement Rule that are important to psychologists: the general enforcement approach, liability for the acts of agents, fines, and defenses available to a covered entity that is facing a penalty.
General Enforcement Approach
In deciding where to direct its enforcement efforts, HHS will rely primarily on complaints brought to the agency’s attention. However, HHS can conduct compliance reviews on its own if there has been no complaint. When acting on complaints, HHS is not limited to complaints by patients. For example, HHS can act on complaints from other covered entities.
Enforcement actions will remain private until a final penalty is imposed. So the fact that you may not have heard about HHS conducting investigations does not mean they are not taking place.
The Enforcement Rule generally favors a voluntary approach to HIPAA compliance whereby HHS would work with a psychologist at issue to make sure that the practitioner understands and corrects the violation. However, if such voluntary efforts fail, the rule calls for the agency to resort to investigations, hearings and fines.
Liability for Actions of Your Agent
The new rule explains the circumstances under which you could be held liable for HIPAA violations of your agent – that is, someone acting on your behalf and at your direction. You can be subject to this type of “agency liability” if a member of your “workforce” commits HIPAA violations. The rule defines “workforce members” as including not only your paid employees, but also trainees and volunteers who are under your direct control.
You can also be held liable for violations by your agents who are not under your direct control but who are still carrying out HIPAA-related functions on your behalf. This kind of agent is generally considered a “business associate” under HIPAA, a person or company with whom you share protected health information as part of running your business. Examples include a billing service or accountant.
There is an important exception to HIPAA liability provided by the Enforcement Rule. You generally are not liable for the HIPAA violations of your business associate if you are in compliance with the business associate provisions of the Privacy and Security Rules as they apply to your practice. Essentially, this means that you have in place “business associate contracts” that comply with those rules. Importantly, however, this exception will not protect psychologists who are aware that their business associates are violating the privacy or security obligations under their contracts and fail to take reasonable steps to remedy the problem.
One place to find a business associate contract that satisfies both the Privacy Rule and Security Rule is in the “HIPAA Security Rule Online Compliance Workbook” available from the APA Practice Organization.
Fines
The new Enforcement Rule allows HHS to impose fines of up to $100 per violation, to a maximum of $25,000 for violations of an identical requirement during one calendar year. A continuing violation is deemed a separate violation for each day it occurs. Thus, a continuing violation found to have lasted most of the year (at least 250 days) would reach the $25,000 limit for that one violation. In calculating the number of violations, HHS can rely on statistically valid sampling. However, the rule gives the accused entity a procedure for challenging those statistics.
HHS indicates that one act could give rise to several violations. The agency gives the example that the single act of disposing of a computer without first “scrubbing” the hard drive to remove electronic protected health information would violate several different HIPAA provisions.
In considering the amount of the fine, HHS will consider the nature and circumstances of the violation, the health professional’s history of prior compliance and his/her financial condition. More detailed considerations under the last category include the size of the covered entity, and whether the fine would put the entity out of business.
When a proposed penalty becomes final, the enforcement process finally becomes public. HHS must notify the public of the fine imposed and the reason for imposing the penalty. HHS will also give notice to various other entities, including the appropriate state or local licensing agency and “the appropriate state or local medical or professional association.”
Available Defenses
The Rule provides several defenses that are available to someone facing a fine. If these defenses are established to HHS’ satisfaction, the agency will not impose a fine. The two most significant defenses for psychologists relate to not knowing about the violation and being unable to comply.
The first of these defenses applies when covered entities who would be liable for penalty did not know that they were in violation, and by exercising reasonable diligence would not have known of the violation. The rule defines reasonable diligence as “the business care and prudence expected from a person seeking to satisfy a legal requirement” under similar circumstances. Obviously, practitioners could not reasonably rely on this defense if they failed to take steps to comply simply because they thought the federal government would not enforce the HIPAA rules.
The second defense applies when circumstances make it temporarily unreasonable for the entity to comply with the HIPAA requirement at issue, despite the exercise of ordinary business care and prudence. Under this defense, the entity knows they are violating a HIPAA rule and must normally correct the violation within 30 days of knowing about it.
For example, a devastating tornado destroys a psychologist’s practice, including paper and electronic copies of the privacy notice required by the HIPAA Privacy Rule. The psychologist sees new clients in the aftermath of the natural disaster but is unable to give them a copy of her privacy notice. She is able to correct the situation within 30 days by re-creating the notice and distributing it to her new clients. If she were subject to an enforcement action, she could argue that she was temporarily unable to comply with this HIPAA requirement, despite the exercise of ordinary business care and prudence.
The entire text of the enforcement rule is available at www.hhs.gov/ocr/hipaa/FinalEnforcementRule06.pdf. If you have questions regarding the rule, please contact Amanda Brino, JD, in the APA Practice Directorate’s Legal & Regulatory Affairs Department via Email or by calling 202-336-5886.
PLEASE NOTE: The information in this article does not constitute legal advice and should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding your individual circumstances.
APA/MTV Partnership Supports Hurricane Volunteers and Their Families
March 28, 2006 -- Young adults participating in hurricane relief efforts through MTV’s “Storm Corps” program can now access mental health materials provided by APA.
APA is partnering with MTV to provide resources for “Storm Corps,” MTV and United Way's “Alternative Spring Break” program designed to bring together volunteers aged 18-24 to help rebuild communities on the Gulf Coast that were devastated by hurricanes in 2005. A hundred young people from around the country were selected to participate in the program, and volunteers spent the week of March 11-18 assisting in rebuilding efforts in Biloxi, Mississippi and Foley, Alabama.
APA has contributed two fact sheets to assist “Storm Corps” volunteers and their families: “Tips for Hurricane Volunteers” and “Tips for Parents of Hurricane Volunteers.” The fact sheets outline strategies for addressing and managing emotions that the volunteers may encounter, as well as what to do if the volunteers feel overwhelmed. They also include instructions for locating a psychologist using the APA Practice Organization’s Psychologist Locator Service.
The fact sheets are posted at the “Storm Corps” Blog at stormcorps.typepad.com/my_weblog/2006/03/tips_for_hurric.html, which is a communications hub for “Storm Corps” participants and leaders and their families and friends. Visitors to the blog, which receives 2,000 hits a day, are encouraged to take the tips sheets with them if they are volunteering in the Gulf Coast, or share them with friends who are traveling there in the coming weeks and months. The fact sheets also are available at APA's online help center, APAHelpCenter.org, in the “Disasters & Terrorism” section.
APA’s Disaster Response Network (DRN) coordinators developed recommendations for the fact sheets during the APA Practice Organization’s State Leadership Conference earlier this month. The DRN is a national network of psychologists with training in disaster response who assist relief works, victims, and victims’ families after natural or manmade disasters. Last fall, the DRN, together with its partner, the American Red Cross, mobilized hundreds of volunteer psychologists in response to the hurricanes.
APA has partnered with MTV on several public education initiatives, including the "Warning Signs" campaign about the warning signs of teen violence, and the "Resilience in a Time of War: Adapting to Wartime Stress" brochure aimed at teens.
"Because of MTV's large audience, it has proven to be an excellent partner in reaching out to teens and young adults about the value of psychology," said Helen Mitternight, assistant executive director for public relations.
Patriot Act Renewal Tightens Medical Record Safeguards
March 28, 2006 -- Earlier this month, President Bush signed a law to renew the “Patriot Act” that originally took effect shortly after the September 11, 2001 terrorist attacks. The 2001 law was designed to aid law enforcement officials in investigating possible terrorist acts.
According to Doug Walter, JD, legislative counsel for the APA Practice Organization, the reauthorization process gave organized psychology an opportunity to improve one provision of the law concerning how federal agents seek “business records” when conducting terrorism investigations.
The Patriot Act had caused some concern because of section 215, which allowed FBI agents to request special court orders for business records in conducting terrorism investigations. While section 215 did not appear to apply to medical records, Walter said, the vague wording of the provision posed a potential risk to medical records confidentiality.
During the reauthorization process, the APA Practice Organization and several other mental health groups advocated with key members of Congress to incorporate procedural protections into section 215. Last fall, the mental health associations shared their concerns about section 215 with the chairmen of the House and Senate Judiciary Committees. These committees had principal jurisdiction as the law was being reauthorized.
The APA Practice Organization and other groups succeeded in their advocacy efforts. Changes to the original act that now pertain to “business records” being sought as part of a terrorism investigation include the following protections championed by the mental health groups:
- An application for the production of records must now have a factual showing of reasonable grounds to believe that the records sought are relevant to a terrorism investigation.
- Specified top-level FBI officials must provide prior written approval when an agent applies for the production of certain kinds of business records, which includes medical records.
- A judge’s order has to include certain information, such as a description of the tangible things that the court is ordering an individual to produce.
- The individual from whom records are being requested may consult with an attorney to obtain legal advice or assistance in responding to an order.
The changes to section 215 are significant, Walter says, even though the provision probably will have minimal if any applicability to psychologists’ records. In 2005, the U.S. Department of Justice indicated that there had been no requests for medical records under section 215 since the Patriot Act was first passed.
Several provisions of the original Patriot Act, including section 215, were set to expire last December 31. The law was temporarily extended twice before its renewal earlier this month.
A four-year sunset applies to section 215, so that portion of the Patriot Act will require reauthorization in 2009. Walter said the sunset will afford psychology the opportunity to address any concerns that may arise for professional psychology about the misuse of this provision in seeking medical records.
Fourteen of the 16 other Patriot Act provisions were permanently renewed.
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