Attention All Psychiatrists

Section 1557 of the Affordable Care Act (ACA) prohibits any healthcare program or activity, any part of which is receiving federal financial assistance, from discrimination in specific health programs or activities based on race, color, national origin, sex, age and disability. In 2020, HHS revised the 2016 Final Rule, the result of which was the elimination of many protections outlined in 2016, particularly those protections related to gender identity, gender expression, sex stereotyping and termination of pregnancy. The 2020 Final Rule declined altogether to put forth a definition of “on the basis of sex” as used in the ACA.

On August 4, 2022, the US Department of Health and Human Services (HHS) issued a notice to reinterpret section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age or disability in a health program or activity, any part of which is receiving federal financial assistance. “On the basis of sex” includes, among other things, discrimination on sex stereotyping, gender expression, gender identity and termination of pregnancy. The proposed rule bolsters protections against discrimination in healthcare by clarifying that funds received under several federal healthcare programs, including Medicare Part B, are included in the definition of federal financial assistance under the law. As such, under the proposed rule, the list of entities expected to comply with the nondiscrimination measures outlined in Section 1557 of the ACA is significantly expanded. The rule also proposes to expand the applicability of the interpretation of “on the basis of sex” to Medicaid, Children’s Health Insurance Programs (CHIP) and Programs of All-Inclusive Care for the Elderly (PACE).

Section 1557 of the Patient Protection and Affordable Care Act | HHS.gov

Attention All Psychiatrists

The Department of Health and Human Services (HHS) has developed new, free informational resources that inform Americans of their rights under law on coverage for mental health benefits.

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA or Parity Law) requires most health plans or insurers offering coverage for mental health conditions or substance use disorders to ensure benefits are comparable to those offered for medical and surgical benefits. What this means is that deductibles, copays, out-of-pocket maximums, and treatment limitations for mental health or substance use disorders must not be more restrictive than corresponding requirements or parameters offered for medical and surgical benefits.

HHS’s New Mental Health and Substance Use Disorder Benefit Resources Will Help People Seeking Care to Better Understand Their Rights | SAMHSA

Attention California Psychiatrists

California legislature passed AB 35, an updated version of the Medical Injury Compensation Reform Act of 1975 (MICRA). Existing law limits the damages for noneconomic losses in an action for injury against a health care provider based on professional negligence to $250,000. The new law specifies that these limitations would increase by $40,000 each January 1st for 10 years and beginning on January 1, 2034, the applicable limitations on non-economic damages for personal injury and for wrongful death would be adjusted for inflation on January 1st of each year by 2%. Existing law specifies that in any action for injury or damages against a provider of health care services, at the request of either party, enter a judgment ordering that money damages paid for future damages be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds $50,000. This bill increases the minimum amount of the judgment required to request periodic payments to $250,000.

Existing law makes statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person, or to the family of that person, inadmissible as evidence of an admission of liability in a civil action. The new bill specifies that statements, writings, or benevolent gestures expressing sympathy, regret, a general sense of benevolence, or suggesting, reflecting, or accepting fault relating to the pain, suffering, or death of a person, or to an adverse patient safety event or unexpected health care outcome, shall be confidential, privileged, protected, not subject to subpoena, discovery, or disclosure and shall not be used or admitted into evidence in any civil, administrative, regulatory, licensing or disciplinary board, agency or proceeding and shall not be used or admitted in relation to any sanction, penalty or other liability, as evidence of an admission of liability or for any other purpose.

Bill Text – AB-35 Civil damages: medical malpractice.

Attention Colorado Psychiatrists

Colorado legislature approved changes to the state’s workers’ compensation program and enacted Protecting Injured Workers’ Mental Health Records Act (HB 22-1354), which significantly limits an insurer and employers’ right to receive mental health records and limits access for the only the purpose of paying for medical services or adjusting and adjudicating claims which involve psychiatric issues.

Protecting Injured Workers’ Mental Health Records | Colorado General Assembly

Attention Florida Psychiatrists

Florida has recently removed restrictions on telemedicine and prescribing of controlled substances.  The new law eliminates the ban for all controlled substances except for Schedule II drugs.  Schedule II drugs still can only be prescribed if the clinical situation meets one of the four specific criteria:

  • The treatment of a psychiatric disorder;
  • Inpatient treatment at a hospital licensed under chapter 395.002;
  • The treatment of a patient receiving hospice services as defined in s. 400.601; or
  • The treatment of a resident of a nursing home facility as defined in s. 400.021.

SB 312 (flsenate.gov)

Attention Massachusetts Psychiatrists

The Massachusetts Senate and House passed the Mental Health ABC Act: Addressing Barriers to Care (ABC) which is a comprehensive bill to continue to reform mental health delivery in the state. The goal is to ensure individuals in need of mental health care receive it. There are several key components to the ABC law passed on August 1, 2022. To highlight a few, the bill mandates coverage for an annual mental health exam, like an annual physical. In addition, the legislation expands emergency services with the implementation of the new 988 suicide and crisis lifeline along with added funding to emergency response and crisis intervention teams. In addition, a public awareness of the state Red Flag laws. This bill is expansive, and details can be found by using the link.

Bill S.2572 (malegislature.gov)

Attention Pennsylvania Psychiatrists

House Bill 2419 removes legislation for the statutory requirement that outpatient psychiatric clinics must have a psychiatrist provide 50% of onsite psychiatric time. It allows for services to be provided using tele-behavioral health technology. The required psychiatric time may be provided in person or by using tele-behavioral health technology in accordance with DHS regulations. In addition, Advanced practice professionals may also provide a portion of the psychiatric time, as specified by DHS regulations, either in person or using tele-behavioral health technology.

Regular Session 2021-2022 House Bill 2419 P.N. 2841 (state.pa.us)

Attention Psychiatrists In-Network for Medicare

On March 15, President Biden signed the Consolidated Appropriations Act (CAA). The CAA extends many Medicare telehealth benefits until 151 days after the end of the current COVID-19 pandemic, which is designated as a Public Health Emergency (PHE). Under the CAA, Congress extended certain waivers for Medicare recipients to use Medicare to pay the costs of telehealth services. Specifically, the following telehealth benefits were extended under Medicare:

1. Medicare beneficiaries may continue to receive telehealth services at any geographic locations, including their homes;

2. Mental health providers will not be required to see patients in person before providing behavioral health services via telehealth; and

3. Medicare will cover audio-only telehealth services when appropriate.

Telehealth flexibilities assured for the bulk of 2022 | American Medical Association (ama-assn.org)

Attention Psychiatrists Treating Transgender Youth

As of April 7, 2022, Governor Kay Ivey of Alabama signed SB184 and HB322, which makes it a felony to provide gender-affirming medical treatment to transgender youth under the age of nine, a crime punishable by up to 10 years in prison. On April 8, 2021, Tennessee’s General Assembly adopted and passed Senate Bill 126, which “prohibits a healthcare prescriber from prescribing a course of treatment that involves hormone treatment for gender dysphoric or gender incongruent prepubertal minors…” As of Feb. 2, 2022, Tennessee Representative John Ragan introduced HB 2835, which seeks to ban gender-affirming surgeries for minors and would impose penalties on any medical provider who provided this type of medical care. Also in February, Texas Gov. Greg Abbott ordered the Texas Department of Family and Protective Services “to investigate child abuse claims filed against parents who might be providing their transgender children with gender-affirming medical care.” On March 23, 2020, the Arkansas Senate passed a bill that bans access to gender-affirming care for transgender minors, including puberty blockers and hormones, which impacted about 1,450 young people above the age of 13.

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