This is the era of accountability, and any of us who chair major committees should be prepared to tell how we are spending some of The American's money. First, let me tell you about my committee.
The Committee on Governmental Relations and Insurance (CGRI) is a very diverse committee, now thoroughly integrated with the Coalition for Patients' Rights (CPR). Two founding members of CPR serve on CGRI; one, Sam Rubin, is co-chair. CGRI membership represents a wide array of interests and is neither homogeneous nor monolithic in its outlook. We have operated with an extremely broad agenda to implement The American's 1994 action plan (see page 19).
We work closely with our government relations specialists, the health law firm of Powers, Pyles, Sutter, and Verville (PPSV). Our major contacts are attorney James Pyles, a senior partner, and Janet Shikles, the firm's director of public policy and government relations.
We advocate as vigorously as we can for the preservation of the environment necessary for psychoanalytic practice. Our primary efforts over the last few years have focused on private contracting and confidentiality, areas essential for the practice environment and vital for the future of psychoanalysis. We advocate for coverage also, but with a lower priority. The 1994 plan was developed jointly by CPR and CGRI, but it was especially a result of the efforts of Drew Clemens, Robert Pyles, and Robert Cummings. We consider ourselves strongly positioned to protect the environment for psychoanalysis. A review of our accomplishments will show that we have substantially strengthened many of the points in the plan, and we intend to accomplish even more.
A new and exciting development of CGRI is Howard Levine's Subcommittee on Local Health Care Initiatives, which seeks to organize health care activists from our local societies.
There has been solid improvement in this area, particularly with Medicare. Despite its limitations, we view the Kyl Amendment to the Balanced Budget Act as enhancing the flexibility of our members and their patients, not restricting it. There are now two mechanisms through which patients and their psychoanalysts can engage in private contracting outside the Medicare system.
The first is the new option enacted into law by the Kyl Amendment. Now, for the very first time, the Health Care Financing Administration (HCFA) recognizes private contracting between provider and Medicare patient. Medicare did not recognize the legitimacy of private contracts until the enactment of Kyl. This private contracting is free from Medicare reporting requirements and from Medicare fee restrictions. While the two-year exclusion from any Medicare billing is a substantial problem that limits the utility of this option, there are efforts—both by legislation, with Kyl (S. 1194, a new provision) and Archer (H.R 2497), and by class action litigation — to counteract this. We support these actions. Numerous collegial organizations with substantially greater resources are actively supporting these efforts to remove the two-year limitation. We are offering as much political support as we can. We urge you to contact your Senators and Congressmen to emphasize that psychoanalysts seek to contract privately in order to preserve their patients' confidentiality. Even if these efforts are not successful, we anticipate that some individuals will choose to practice consistent with this option and will remain totally outside the Medicare system, while others will practice completely within Medicare. We think that this will give patients considerable freedom of choice.
The second mechanism for seeing Medicare patients privately was originally affirmed in August 1995 by James Pyles of PPSV, working then for CPR This was recently reaffirmed in an HCFA bulletin to all providers. Under this procedure, for reasons of confidentiality, any Medicare patient has the right to request that a provider not file a claim with Medicare. Under these circumstances, patients are able to see psychoanalysts outside the Medicare system. This mechanism does not require the two-year exclusion that the Kyl mechanism does, but fees must remain within Medicare limits. While it is true that the patient can change his or her mind for a period of up to one year and therefore subject the practitioner to Medicare reporting requirements, any patient who did so would be giving up the very confidentiality that initiated this mechanism.
CGRI and CPR plan to visit HCFA this spring to negotiate actively for improved reporting requirements within Medicare, more consistent with the principles outlined in “Charting Psychoanalysis.” Colleagues in Connecticut and Ohio have been successful in similar efforts with local Medicare carriers.
Yet another private contracting achievement is the “point of service” option. This is one of the fastest growing components of health insurance. Under this option, managed care patients have the privilege of seeing any provider willing to see them outside the managed care system in exchange for higher co-payments.
A second major area of our work is confidentiality. Through the efforts of Paul Mosher and Judy Schachter, The American (in conjunction with Division 39 of the American Psychological Association, the National Membership Committee on Psychoanalysis in Clinical Social Work, and the American Academy of Psychoanalysis) filed an amicus brief in Jaffee vs. Redmond. In that 1996 decision, the Supreme Court affirmed the necessity and importance of privacy in the psychotherapeutic situation. While not a CGRI achievement, this is a major accomplishment for The American, with significant implications for the work of CGRI and CPR.
This year a number of important bills concerning privacy will be heard in Congress. We consider it essential that The American continue to play a major role in the struggle to get the Leahy Bill (S. 1368) enacted. This bill would be the first legislative affirmation of the right to privacy. Patients would be able to maintain control over the communication of information from their medical records. We consider the alternative Bennett Bill unacceptable, a warmed-over version of a bill defeated in the last congressional session — in part due to our efforts. Bennett protects information only after it is entered into databases. We consider such approaches to privacy antithetical to true confidentiality.
Warren R. Procci, M.D., is chair of the CGRI and an APsaA councilor-at-large. He is a training and supervising analyst of the Southern California Psychoanalytic Institute and a clinical professor of psychiatry at the UCLA School of Medicine.
Other items that will be considered in this Congressional session include a number of managed care patients' bills of rights, such as the Norwood (H.R. 1415)/D'Amato (S. 644) Bill. We support Norwood/D'Amato, which would provide patients in managed care systems with important rights and privileges. We believe that the public and media climate is turning powerfully against large HMOs and managed care providers and that the situation for patients' rights within such systems is likely to improve.
Peter Thomas of PPSV is a participant in the President's Advisory Committee on Consumer Relations, which has prepared a Consumer Bill of Rights for patients participating in health plans. While this activity has yielded disappointing results to date regarding confidentiality, we do have a foot in the door. The patients' Bill of Rights has offered significant advances in other elements of managed care. We consider it a “work in progress” and anticipate more satisfactory results in the future.
In general, the current legislative environment is very fluid regarding health care matters. There has been a considerable shift in public, media, and legislative sentiment away from restrictive managed health care firms and toward the individual consumer. With its focus on the privacy and integrity of the individual patient, The American offers a unique point of view in this debate. Bleak scenarios concerning the practice environment, specifically the reimbursement sector, are not accurate. Many of the current legislative initiatives that seek to favor and protect the individual patient, such as Leahy and Norwood/D'Amato, are there because of the efforts of professional organizations such as ours. Carefully chosen strategic alliances with other like-minded groups can strengthen and enhance our efforts.
The proposition has recently been advanced that we are currently out of compliance with the action plan. Supporters of this viewpoint seek to invoke Point 5 of the plan. Their proposal urges that The American exclude psychoanalysis (CPT 90845) from coverage by Medicare.
CGRI does not think these assertions are accurate. A careful reading of Point 5 suggests that only when individuals do not have the freedom to practice outside reimbursement systems should we seek to remove psychoanalysis as a covered service within that system. Our members may now see patients outside the Medicare system through the two mechanisms outlined above. Neither of these mechanisms
existed at the time the action plan was crafted. The situation has improved considerably since then, and Points 2 and 3 of the plan have been strengthened. We understand the limitations of these options, and we readily agree that more needs to be done to expand our options further.
Excluding medical psychoanalysis from Medicare would be an extremely coercive act that would deprive any analyst and any patient who were freely willing to accept the limitations of the Medicare system of the option to conduct or receive a reimbursed analysis through Medicare. There would be no mechanism for reimbursed analyses for certain patients otherwise unable to afford them. The limited number of psychoanalytic institute clinics cannot provide sufficient resources for this patient population. The burden of treating patients with limited resources at substantially reduced fees should not fall primarily upon our candidates. Additionally, many of our members stand on the principle that reimbursement for psychoanalysis should be available within our health care systems.
The proposal to exclude psychoanalysis from Medicare also appears to reject the notion of strategic alliances with collegial organizations. This stance would leave us standing alone at a very difficult time, without contact and support from our colleagues in other areas of health and mental health care.
This proposal has been discussed at length in this forum in the March 1998 issue of TAP by Clemens, Procci, and Rubin. In our article we developed our position that the argument to remove 90845 as a covered service within the Medicare system is laden with dubious assumptions, based on unrealistic premises regarding the direction of the health care system, susceptible to highly problematic unintended consequences, and extremely complex to implement. As our government relations representatives provide us with further expert opinion on this crucial matter, we shall keep you informed.
I took over as chair of CGRI in December 1996. I have enjoyed the privilege of working with our current president, Marvin Margolis. Robert Pyles assumes our presidency this spring, and our entire committee looks forward to his leadership. I have been working shoulder-to-shoulder with Pyles during the past few months. We will work in close collaboration to preserve the safety of the psychoanalytic environment and to preserve the right of patients to receive psychoanalytic treatment without compromise of the psychoanalytic frame.