At its meeting in New York on December 17, 1997, the Committee on Government Relations and Insurance (CGRI) examined the proposal described in the last issue of TAP and presented to the Executive Council and BOPS in December: that The American seek to have psychoanalysis (CPT 90845) excluded from being a covered service under Medicare. (See “Managed Care's Challenge to Psychoanalysis: A Political Science Perspective on Strategy,” TAP 31/4.)
By a large majority, CGRI is strongly opposed to this action. It would do great harm while not successfully dealing with the problems we face, either with government medicine or with managed care. Here are the reasons.
In reality, private contracting is now more clearly defined and assured under Medicare than ever before. A health professional may totally withdraw from Medicare for a two-year period under the Kyl amendment to the Balanced Budget Act. (The American and many other organizations are seeking to have this provision altered to allow selective private contracting rather than an all-or-nothing two-year exclusion, but the issue is very controversial.) As a second avenue, explicit statements by the Health Care Financing Administration (HCFA) also allow a patient to refuse to have claims submitted for reasons of privacy and confidentiality; the decision must be free of coercion by the professional, and fees must remain within Medicare limits.
Coercive aspects of Medicare cannot be applied to the private insurance market. As a federal program, Medicare has the force of law. Except for instances of fraud and abuse, which The American of course does not sanction, the only coercive measures private insurers have are internal: to withhold payment or to exclude professionals from their panels. Because of this important difference, Medicare sanctions are unlikely to creep into the private marketplace. Managed care companies do not wish to have their procedures encoded into law; in fact, they expend major resources to avoid statutory regulation.
Inappropriate Medicare requirements for documentation could be open to modification. Intervention has been successful in Connecticut to allow charting consistent with The American's 1995 practice bulletin on “Charting Psychoanalysis” (TAP 29/2). Medicare carriers' published requirements for charting are less onerous than the CHAMPUS requirements in the Federal Register, though still excessive for psychoanalysis. The American's government relations consultant is arranging a meeting with Medicare to attempt to find a reasonable accommodation on the federal level.
There is no evidence for a special “window of opportunity” at this time to avoid measures designed to prevent a two-tiered medical marketplace. If such developments should occur, our members would have to deal with the inherent private contracting issue regardless of whether or not psychoanalysis were a covered service at the time. Excluding psychoanalysis as a covered service would not in any way guarantee a right to private contracting. The situation in Washington is currently very fluid, offering possibilities for both favorable and undesirable developments. Contrary to the Shalala recommendations regarding medical information systems, the Leahy bill (S 1368) would enact major provisions to protect privacy, confidentiality, and patient control over release of information. The Norwood (HR 1415) and D'Amato (S 644) bills would establish significant controls over managed care; they are indicative of a widespread public backlash against managed care excesses. Point-of-service options that allow patients to go to professionals outside their health plans are the fastest-growing segment of the health insurance marketplace.
Patients, their analyses, and their analysts would be harmed. Medicare is, after all, a universal health insurance plan that does cover psychoanalysis (and insures many of our members for their own health care). CGRI is undertaking a survey to see how many patients are in analysis under Medicare, CHAMPUS, Medicaid, managed care, or other insurance payment. The number of Medicare patients may be small, but these patients are likely to be elderly or disabled — a vulnerable population. Exclusion of psychoanalysis from Medicare would interrupt their analyses. While holding the ethical high ground of confidentiality, The American could be undermining the ethical principle of continuity of care.
Exclusion of psychoanalysis from CHAMPUS, Medicaid, and private insurance plans would soon follow. Many other patients and analysts would then be affected. Children in analysis would be especially vulnerable. Psychoanalytic institute clinics and psychoanalytic community clinics could be undermined, as could their relationships with other institutions in the community. Low-fee analysis by candidates and clinics would be insufficient to meet the responsibility of psychoanalysis as a profession to make available the unique benefits of psychoanalytic treatment to all who are in need of it.
Regardless of The American's principled stance basing the action on the preservation of confidential treatment, exclusion of psychoanalysis from Medicare would be interpreted in a way detrimental to psychoanalysis as a treatment modality. The fine points of The American's argument would be conveniently lost as other third-party payers, authors of textbooks and practice guidelines, and unfriendly academics took the opportunity to declare psychoanalysis outdated, unproven, ineffective, and/or not medically or psychologically necessary, citing Medicare's determination that it is not a covered service. While the resemblance to the position of cosmetic surgery might be appealing to some, there would be consequences to the standing of psychoanalysis both within the health-care disciplines and in public opinion. A major public information initiative would be called for to counteract these repercussions.
Such a move, potentially affecting a large part of the membership, should be undertaken only on the basis of a very large majority in a referendum of the members. The threshold of support in a referendum should be set high by the Executive Council: for example, an absolute 51 percent of all members, not just a majority of those voting — or at least 75 percent of those voting. The potential for harm to patients and members makes a supermajority essential.
The American is not the exclusive custodian of psychoanalysis. The action would require support from the other members of the Psychoanalytic Consortium, IPA institutes and societies, and independent psychoanalytic societies.
Warren Procci, M.D., is chair and Samuel Rubin, M.D., co-chair of the Committee on Government Relations and Insurance, to which Norman Clemens, M.D., is a consultant. All three are training and supervising analysts — Clemens in the Cleveland Psychoanalytic Institute, Procci in the Southern California Psychoanalytic Institute, and Rubin in the New Orleans Psychoanalytic Institute.
They in turn would need to obtain a broad mandate from their members. How would The American proceed if the other psychoanalytic organizations did not concur in this action, and what legal risks would be entailed? The process would be lengthy and complex, making it unlikely that effective action could be taken within the postulated window of opportunity.
In sum, CGRI feels that the proposed action would potentially be a very damaging move at this time. Much more fruitful would be immediate steps to negotiate with Medicare about unacceptable documentation requirements, as has been successfully accomplished in Connecticut. We must also sustain active efforts on behalf of (1) the right to private contracting and (2) privacy and confidentiality in all health systems.
We must especially oppose proposed coercive attempts to require reporting to large-scale information systems, which could apply to all health-care services whether covered by third-party payment or not. We must support the new legislation by Sen. Jon Kyl (S 1194) and Rep. Bill Archer (HR 2497) to allow professionals selective rather than blanket withdrawal from submitting Medicare claims and emphasize that the legislation is needed in order to protect confidentiality, rather than to allow professionals to circumvent Medicare fee limitations. Active efforts by our members in every affiliate society will be crucial to the achievement of these goals.