Final opioids deal hits a snag with IMDs, privacy provisions

Two contentious provisions have stalled the Senate and House plan to release final opioids legislation by Friday. Talks are likely to push into the weekend and possibly until Monday.

The opioids package of more than 70 bills is likely to stay on track for final passage before the end of the month, but two hospital-backed bills continue to stall the final product: a provision to roll-back the extra privacy rules around the medical records that show a patient's addiction history; and a measure to loosen the so-called IMD exclusion for addiction treatment. IMD stands for "institutions of mental disease," and refers to a statute from the 1970s that bars Medicaid from funding stays in residential clinics of more than 16 beds.

The House passed the two measures but the Senate punted them to final negotiations, spurring an eleventh-hour tussle.

Rep. Markwayne Mullin (R-Okla.) sponsored the House provision to align addiction treatment privacy rules with HIPAA, and to allow physicians and hospitals to more easily share addiction treatment records of patients. Providers back the policy, arguing that it would stop risky opioid prescriptions for patients with an opiate addiction history and prevent accidental overdoses.

On Friday afternoon, Mullin told Modern Healthcare that he wasn't about to give up on securing the provision which he believes is critical to preventing unintended overdoses.

House Energy and Commerce Committee ranking Democrat Frank Pallone of New Jersey opposes it.

Senate health committee ranking Democrat Patty Murray of Washington, one of the key negotiators of the opioids package, has concerns about the measure. A Murray aide said the senator doesn't outright oppose it, but wants to make sure there is language to secure patients' right to privacy.

As negotiations dragged on through Friday, Mullin vowed that he wasn't going to give up on it getting included. He has had the opioid epidemic hit his own family three times and said for him it's a matter of lives on the line.

"We've seen what's happened because (the current law) is in place," he added. "What if we could prevent an accidental overdose from taking place? We know we can."

Murray's aide confirmed that talks continue about a way forward for the provision.

On the IMD exclusion, Sen. Rob Portman (R-Ohio) has driven the upper chamber's companion bill to free up Medicaid funds for inpatient treatment of substance use disorder.

The proposal has proved controversial for mental health advocacy groups, even those who want to see the IMD exclusion eliminated all together. Earlier this week, Portman dropped a new version of the measure, along with key Democratic co-sponsors: fellow Ohio Sen. Sherrod Brown, Minority Whip Dick Durbin (Ill.) and Sen. Ben Cardin (D-Md.).

The bill, which would free up Medicaid funds for inpatient treatment of any substance abuse disorder, has its share of critics.

Hannah Katch of the liberal Center on Budget and Policy Priorities said the legislation would be redundant because the Trump administration has been granting waivers to the IMD exclusion for substance use treatment. Fifteen states now have those waivers. Waivers are pending for 11 additional states.

Hospitals and other residential facilities are pushing the legislation because it would ease states' ability to start applying Medicaid funds to patient stays. But Katch said HHS has been fast-tracking the waivers and she doesn't see justification for a bill, particularly because it would consume a large piece of the limited funding lawmakers are apportioning for the opioid epidemic.

"If this is Congress' attempt to resolve the opioid epidemic, with so little funding, why invest it in legislation to do what states can already do?" Katch said.

This week brought another complication to negotiations, as pharmaceutical lobbyists pressured Congress to reduce the drugmaker financial liability for the Medicare Part D coverage gap, known as the doughnut hole. Lawmakers cut the co-pays seniors have to pay as well as the liability of Medicare Part D insurers in the 2018 Bipartisan Budget Act earlier this year.

Despite heavy pharma lobbying over the past few months and a major negotiating push this week, leading Democrats have signaled they won't include the policy change, which they have branded as a "Big Pharma bailout" in the opioids package.