Several practical issues with significance regarding confidentiality should be brought to the attention of our membership.
Access to the records of private patients; Medicare regulations allow access by the Health Care Financial Administration (HCFA) to the records of non-Medicare patients in order to verify that Medicare patients receive the same quality of care that non-Medicare patients receive. This potentiates gross breaches of confidentiality without the consent of patient or provider. Efforts have been made to neutralize this threat, but Congress currently is not in a mood favorable to the professions of medicine or psychiatry. At present the only way to avoid the threat of such indiscriminate access to confidential records is not to treat Medicare patients.
Mandatory use of Medicare B benefits: A second complication regarding confidentiality and Medicare surfaced in late 1991. Initial interpretations of Medicare regulations held that all patients with Medicare B insurance were mandated to use their Medicare benefits even though they preferred private payment. Thus a patient age 65 or older would not have the option of protecting his privacy by not using his health insurance. This amounts to discrimination on the basis of age. Enough protests were raised so that HCFA is reported to be in the process of reconsidering this policy. As of June 1, 1992 HCFA policy has been interpreted [this is not a legal opinion] to be that in some cases Medicare patients may volunteer not to use their Medicare B benefits, but this must not be on the physician's initiative; careful records must be kept, including the patient's written request for non-submission of the claim. The charges paid by the patient must follow Medicare guidelines and, for the non-participating providers, must not exceed the provider's Limiting Charge. The rationale for the Limiting-Charge fee is that should the patient or family apply for Medicare reimbursement in the future, Medicare criteria would had to have applied. There is also the problem that should such a private-pay case be discovered by medicare, the investigation would be thorough and an adverse decision could be made on a case-by-case basis even with complete documentation.
The Joint Committee on Confidentiality has discussed this case extensively and has proposed a policy statement reaffirming the importance of maintaining the confidentiality of patient psychoanalytic records irrespective of the patient's prominence, creativity, or death.
The National Conference of Commissioners on Uniform State Laws (NCCUSL) is the professional organization of state legislators and lawyers (appointed by state governors) that has the function of developing Uniform Laws (UL) on subjects requiring legal expertise usually not available in many states. The ULs also are intended to provide consistency among the states. Such laws have the imprimatur of legal experts and have an inherent advantage in the legislative process. Unfortunately, the majority of NCCUSL members are lawyers and are inclined to provide for access to information, particularly medical/psychiatric, rather than to protect patient confidentiality. One such Uniform Law is the NCCUSL Health Care Information Act. Thus far it has been enacted only in Wyoming and Washington. It provides unacceptable access to medical/psychiatric records without patient or physician consent. Many states have their own confidentiality laws, but others may adopt the NCCUSL UL. It would be wise for all of us to be alert in our local jurisdictions and to muster the opposition of local health care professional organizations when necessary.
The American Psychiatric Association has its own model state statute on the Confidentiality of Health Records, which is available on request. Used as the basis of laws enacted in Illinois and the District of Columbia, it provides a more acceptable balance between the antithetical needs for confidentiality and access when medically necessary. It could be used proactively in your local jurisdiction.
The evolution of managed care as a component of the health care system continues at a rapid rate. Some managed care firms use access to psychiatric information as a tool of harassment. Model laws to regulate such access are available, but as currently practiced in many jurisdictions managed care is a most daunting threat to the confidentiality of psychiatric records. At present our only recourse is to control the information entered in records, to organize protests to state insurance and commissioners (as was done successfully in Connecticut), and to enact statutes regulating managed care.