Congress’s opioids package and the politics of the IMD exclusion

At the end of September, the Senate passed a final version of an expansive legislative package designed to tackle the United States opioid epidemic. The package contains a broad range of policy approaches to the crisis, including enhanced tracking of fentanyl in the U.S. mail system, improved access to Medication Assisted Treatment and addiction specialists, and lifted restrictions on telemedicine and inpatient addiction treatment. The package, which now sits on President Trump’s desk, is widely expected to be signed into law.

The legislative effort has been lauded as a rare act of bipartisanship in an otherwise-polarized Washington.

The Washington Post called the set of bills “one of the only major pieces of legislation Congress is expected to pass this year.” A Time headline declared that “Opioid Bill Shows Congress Can Still Work Together.” Praise of this across-the-aisle effort is merited: the Senate voted for the set of bills 98-1, and the House voted for it 393-8.

While critics have rightfully pointed out that the package does not provide for enough increased spending to address the crisis, with more than 72,000 people dying from drug overdoses in 2017, the time is ripe for a collaborative approach to the opioid crisis, and any effort helps.

In light of its significance, the bill’s passage raises important questions about the politics surrounding the opioid epidemic and Medicaid. Congress was able to agree on a bipartisan opioid package because the opioid epidemic is one of the few truly bipartisan issues in current American politics, as a 2016 study of public opinion polling shows. More specifically, the study suggests that bipartisan consensus on the opioid epidemic is possible because (1) large percentages of Democrats and Republicans personally know someone affected by opioid addiction and (2) Democrats and Republicans both consider opioid addiction to be a serious issue in their home state. Moreover, commentators have posited that racial bias has made white Americans more sympathetic to those affected by this predominantly white epidemic. This legislation is uniquely bipartisan because the opioid crisis holds a unique place in public opinion.

Accordingly, legislators were empowered to take steps out of line with their normal legislative modus operandi. Specifically, longtime foes of Medicaid spending and the Affordable Care Act’s Medicaid expansion provision agreed to temporarily remove the Institutions for Mental Disease (IMD) exclusion in cases of drug-addiction treatment. The IMD exclusion, a vestige of the deinstitutionalization of mental health care during the 1960s, prohibits federal Medicaid funds from being directed to behavioral health inpatient facilities with more than 16 beds. Many substance abuse treatment centers have been swept into the exclusion. As it became clear that the IMD exclusion was outdated in the context of the growing opioid epidemic, states had been encouraged by both the Obama and Trump HHS to submit Section 1115 proposals to waive the prohibition in the specific case of substance abuse treatment centers.

By temporarily removing the IMD restriction for substance abuse treatment centers, legislators have thus used Medicaid and its expansion under the ACA as a vehicle to expand access to care—even while several states have sued to challenge the constitutionality of the ACA, with the Trump administration refusing to defend the law. Stewart v. Azar, a recent challenge of Kentucky’s attempt to impose work requirements on Medicaid expansion beneficiaries, exemplifies this trend. The Kentucky 1115 waiver included a bifurcated proposal to both waive the IMD exclusion while otherwise restricting access to Medicaid through work requirements, lock-outs, and premium increases. Even as the state of Kentucky sought to limit access to coverage for the expansion population, it proposed to expand coverage for the opioid addicted.

Perhaps this two-faced approach to Medicaid is the straightforward result of divergent public opinion. A more cynical view is that expanding coverage for opioid addiction treatment under Medicaid sometimes serves as political cover for aggressive restrictions for other beneficiaries. The court in Stewart grappled with the potential legal consequences of pairing Medicaid restrictions with a waiver of the IMD exclusion, touching on the troubling suggestion that invalidating the restrictions would also mean invalidating expanded coverage for substance abuse inpatient treatment centers.

(“Were the Court to treat this as a challenge to KY HEALTH, a decision in Plaintiffs’ favor would invalidate not only Kentucky HEALTH but also Kentucky’s recently implemented SUD program. None of the parties has an appetite for such a result.”) And CMS’s guidance on Medicaid work requirements carefully cordoned off an exception for opioid-addicted beneficiaries.

Regardless of political motive, any legislative effort to tackle the opioid crisis should be welcome, and lifting the IMD exclusion for substance abuse treatment centers is an overdue step in the right direction. But as legislators tip the scales to provide help to stem the problem of opioid direction, in this political climate we should think carefully about what might be on the other side of the balance.