The struggle to preserve privacy and the sanctity of the therapist-patient relationship must be understood in the context of a larger battle. That battle, without exaggeration, is quite literally for the soul of our health-care system. The fight is about who will control health care — corporate interests or the citizens of this country.
The danger to psychoanalysis began quietly and in seemingly unrelated ways. In 1943, legislation was passed that gave employers tax incentives for offering health insurance plans to their employees. The unintended consequence was to deprive individuals of control over their health insurance and to create a system that would encourage employers to offer the cheapest health plans possible. Some years later, as R.A. Munoz and Harold Eist point out in their book The People vs. Managed Care, “In one of his last acts as U.S. President, Richard Nixon signed the HMOs Act of 1973 that made managed care possible. Some have argued that this was Nixon's revenge against the American people.” (The book was published online this year and can be read at rmunozmd.com.)
The following year, the passage of the federal Employee Retirement Income Security Act (ERISA) of 1974 created legislation that has been interpreted as preventing patients from being able to sue their managed care companies. The Supreme Court ruled very recently that only Congress can create relief from the effects of ERISA. The net result of these disparate pieces of legislation was to encourage the rise of a health-care system in which control of health-care delivery passed from the patient and doctor to the company whose profit margin depends on limiting care.
Photo by Mervin S. Stewart
Two other contributing factors are important to note. In 1974, a task force under Robert Spitzer, a psychoanalyst from Columbia University, was formed by the American Psychiatric
Association to evolve specific diagnostic criteria for purposes of research. In 1980, a later iteration of these criteria, DSM III, created a specific shift from a biopsychosocial humanistic model back to a descriptive, neo-Krae-pelinian one. At the same time, computer technology and data-gathering capacity were increasing exponentially. With both adopted enthusiastically by managed care, it was possible to evolve a mechanistic system of care that seemed hardly to involve people at all, either as patients or caregivers.
Managed care did not become hugely popular until the early 1990s, when rising healthcare costs made Congress eager for a solution that would control costs and yet not appear to be an endorsement for health-care rationing. By 1992, managed care was seen on Capitol Hill as the “magic bullet” that would save health care. Although it was perfectly obvious to most congressmen that the only true way to save health-care dollars was to give less care, it was just as obvious that it would be managed care companies, and not Congress, who would take the heat for such policies. This, then, was the deal: In return for creating covert health-care rationing, favorable legislation was passed that ensured huge profits for managed care companies.
Even then, psychoanalysts and psychodynamic psychotherapists could take solace in the seeming invulnerability of independent practice to what had become the egregious intrusions of managed care. In 1993, this pleasant bubble burst. With the advent of Clinton's Health Security Act — all 1,366 pages of it — it became clear that the President's intent was the same as that of managed care, namely to bring all health-care providers under the control of a tightly organized network. Private practice would be illegal under this act, punishable as a felony.
As fantastic as this now seems, it came very close to happening. The Coalition for Patient Rights (CPR) and the American Psychoanalytic Association played a leading role in the ensuing fight. This was our first experience in political activism, our first appearance on Capitol Hill, and we did well. Our strategy was twofold: to string out the passage of legislation until we could acquaint the public, through the media, with the true nature of it; and to include protective amendments in any bill that seemed likely to pass. With the personal and financial help of of many members of our Association, we were able to achieve both goals. By the time the Clinton plan and a myriad of similar bills failed, we had achieved protective legislation in every one.
With the failure of these attempts to gain control over the health-care system directly, the battleground shifted. The new front was privacy. Whoever could gain control over health-care information could control health care itself.
After the defeat of wholesale health-care reform, Congress saw the introduction of a plethora of bills aimed at control of health-care information. Usually a particular piece of legislation would have a title suggesting that its purpose was to protect privacy while the content of the bill made it clear that the effect would be the complete opposite, double-think apparently being standard procedure in Washington. A case in point was the Bennett bill, which would have created a mechanism to set up a federal centralized databank without patient consent, overriding all state law. It was called the Medical Confidentiality Act of 1995.
We also learned about another interesting Washington custom: the practice of overloading a committee hearing with witnesses favorable to the legislation the majority party wants to get passed. Thus we were the only witnesses who testified in opposition to the Bennett bill. Fortunately, Sen. Robert Bennett (R-Utah), in his exasperation at our comments, compared us to the “Oklahoma City bombers,” a crack that landed us and him on the front page of the New York Times and effectively torpedoed his bill.
The senator resurfaced several years later with another incarnation of his bill, which we referred to as “Son of Bennett,” or SOB. Reviewing this bill with his staff, we remarked that it didn't seem to have much to do with privacy. The reply was that it was not about privacy, it was about confidentiality. Puzzled, we asked what was the difference. “Confidentiality,” we were told, was now defined as what happens to the information once the insurance company has it. Another lesson from Washington: If you don't like something, simply define it away.
Rather quickly, an informal “privacy coalition” developed, which included the APsaA, CPR, the American Psychiatric Association, and a number of other groups. Working together and in concert with many others, we defeated a series of destructive anti-privacy bills. Among these were several that would have established a centralized national databank that would have created birth-to-death health records on every American, without consent. These bills called for mandatory reporting of all “health care encounters,” including private practice. No refuge was to be allowed through self-pay. As with the earlier attack on independent practice, the goal was to bring everyone under the control of a centralized network. One of these bills created the notorious “unique patient identifier,” which assigns a specific number to each citizen for the purpose of data collection. In interviews with the press, we began referring to this as the “national tattoo.” This particular issue is on hold for now, but it will return.
Because of the failure of the anti-privacy forces to achieve legislation in the usual manner, a last-minute addition to the Kennedy-Kassebaum bill, the Administrative Simplification Amendment, created an end run around Congress. It allowed privacy procedures to be established by the Secretary of Health and Human Services (HHS) in the event that Congress was unable to act by February of 2000. Basing her position on legal arguments by Lawrence Gostin, a lawyer at Georgetown University, and on a report from a committee heavily weighted (fourteen of fifteen) by anti-privacy members, HHS Secretary Donna E. Shalala produced a draft report predictably weak on protecting privacy.
Hying in the face of medical-legal tradition in this country, the Shalala HHS draft document does away with informed consent. We have countered with two major documents, one a carefully researched argument for the legal basis of the constitutional right to privacy, and the second a forty-one-page assessment and set of recommendations for the HHS regulations. While our insistence on preserving informed consent was initially considered radical, it has now become mainstream and front-page. The good news for us is that psychotherapy notes alone among health-care records are afforded special protection. The principles of Jaffee v. Redmond are specifically recognized, thanks in no small part to the participation of John Fanning of HHS at our Washington meeting in May 1999. We have continued to work closely with Fanning and are awaiting the final version of the regulations.
We have had a number of victories, but certainly none more important than the 1996 Supreme Court decision in Jaffee v. Redmond. The American, along with the other members of the Psychoanalytic Consortium, submitted an important amicus brief in this case. The case is of inestimable value to us, not only for the stand the Court took in validating the concept of “privilege” in the protection of patient-therapist records and communications but also for the specific rejection of the so-called “balancing test,” in which the interests of society to have information are “balanced” against the patient's right to privacy. The Court held that the interests of society are best protected by maintaining individual privacy.
The Court reviewed the “history of human experience” on this issue and found that based on “reason and experience,” effective psychotherapy cannot take place without privacy. Thus the Court gave its judicial imprimatur to the position we have long espoused — that quality of psychotherapeutic care rests squarely upon the foundation of privacy. In addition, the
reasoning on which the Court based its decision provides a solid foundation for broadening privacy protections. Indeed, this has already taken place in subsequent court decisions. At our May meeting in Chicago, we were especially pleased to recognize and honor with a Presidential Award Karen Beyer, the psychotherapist in Jaffa v. Redmond. Beyer gave a moving account of her crucial and courgeous stand in the case [see page 1].
Jaffa v. Redmond has tremendously strengthened our hand when dealing with legislative bodies and regulatory agencies. We have already seen its usefulness in the HHS regulations. In addition, the decision is highlighted in the December 1999 “Mental Health: A Report of the Surgeon General” (Chapter 7, available on the Web at ). We are now able to argue that Congress should be consistent with the Supreme Court and that any legislation dealing with privacy should include the principles that the Court has clearly established. It is especially important that we achieve this same protection legislatively, as this decision is subject to the will of Congress and could be overturned by that body.
Other positive developments include our work with the Health Care Financing Administration (HCFA). In our discussions with Aron Primack, director of the quality assurance component of HCFA, he agreed to accept, in principle, our standard for the keeping of psychoanalytic records as contained in “Charting Psychoanalysis” [Practice Bulletin No. 2, published in TAP 29/2], although he stopped short of giving this to us in writing. What this means in effect is that when the code for psychoanalysis (90845) is used for Medicare claims, our record-keeping standards pertain. Primack also discussed the issue of psychoanalytic recordkeeping at a meeting of carriers from the different national regions. This seems to have led directly to the singling out of psychoanalysis for favorable treatment in the otherwise disturbing draft guidelines of the New York Medicare work group. We consider these developments to be important not only specifically for Medicare issues but also because Medicare often forms a template for other insurers and Congress.
For this reason, we also consider our actions in regard to the OASIS (Outcome Assessment Information Set) program especially important. This program was designed by HCFA to collect information, without consent and in fully identifiable form, for home health-care patients. These questions included matters related to mental health, and compliance was mandatory. Treatment would be withheld if questions were not answered. We were able to involve Robert O'Harrow of the Washington Post, as well as the office of Vice-President Gore, who intervened personally in the matter. At this point, OASIS is on hold, and significant changes have already been made. HCFA has (1) recognized the right of the individual not to answer these questions and still receive care and (2) agreed to collect information on non-Medicare and non-Medicaid patients only in de-identified form.
Strategically, our approach has been to work first and foremost for the specific and special protection of psychoanalysis and psychodynamic therapy. We feel that this can be most easily achieved within the context of different levels of protection for mental health records and for health records in general. I visualize this as three circles, with the outer ring being all health records, the middle one being mental health records, and the inner and most vital one being psychoanalytic and psychodynamic records. We are taking a two-pronged approach, using the judicial path to strengthen the legislative effort, and vice versa.
The mood and tide are beginning to swing our way in the fight to preserve privacy, just as we saw happen in the struggle to protect independent practice. The public is increasingly informed and aroused. According to the Boston Globe in June 2000, “About 300 privacy bills are pending in the House and Senate and privacy is registering in the polls as a top concern among Americans.” Privacy is also beginning to take center stage in the presidential campaign. Perhaps most significantly, privacy is becoming an economic issue: Information companies are rushing to develop internal privacy standards to avoid governmental regulation.
I hope the foregoing illustrates some of the ways in which we have learned to leverage our strength. Working with the media to inform the public — who, in turn, let their legislators know of their concerns — and working with a variety of allies allows an association such as ours to have an impact far greater than our numbers. It is of critical importance that we continue to strengthen our ties to other groups, particularly those like the Psychoanalytic Consortium and independent groups like the Independent Psychoanalytic Societies and the William Alanson White Institute, with whom we have so much in common. With these groups especially, unlike many professional organizations who have a variety of constituencies, we have one goal: the protection of psychoanalysis and psychodynamic therapy.
Bob Pyles, M.D., is the immediate past president of APsaA, a founder of CPR, and current chair of the Committee on Government Relations and Insurance. He will be writing a regular column for TAP on politics and public policy, beginning with this article.