The final health care privacy regulations released in December 2000 by the Department of Health and Human Services (HHS) were quite extensive. They covered nearly 400 pages in the Federal Register and reflected more than 52,000 comments. These regulations were mandated by Congress; during the last days of the Clinton Administration, they were on track to becoming legally binding by April 2003. With the change of administration in Washington, however, the regulations are now at risk of being completely rewritten or indefinitely delayed.
Like all such documents, the regulations represent a compromise between the aims and positions of various political, social, and economic groups. While they do not go as far as the American and other members of the privacy protection community would like, they do contain some potentially positive provisions that we have fought hard for and have taken a leadership role in bringing forward. Of this we can be proud. Despite our small size and limited budget, we have had a significant impact. Most notably, we have helped convince HHS that patient-therapist communications require a special level of privacy protection similar to that provided in federal courts by the Supreme Court's landmark 1996 decision in Jaffee v. Redmond.
Photo by Mark David Elder
Among the positives that we fought for and that are included in the HHS regulations are the following:
The regulations do not preempt stronger state regulations. They represent a floor, not a ceiling, for patients' privacy rights.
The principles of informed consent, for which we so strongly advocated, have not been fully eliminated. (In one of the more problematic aspects of the regulations, however, they have been retained in a weakened and potentially seriously compromised form.)
The regulations distinguish between “the general medical record” and “psychotherapy notes.” The latter are given an extra measure of privacy protection analogous to and modeled upon that afforded patient-therapist communications in Jaffee v. Redmond.
Perhaps the most fitting tribute paid to our efforts and those of others in the pro-privacy community is that we are now facing a full-scale lobbying attempt by the anti-privacy, pro-business forces to indefinitely delay or completely overturn the regulations.
The creation of the distinction between the “general medical record” and “psychotherapy notes” — a separate, more strongly protected portion of the medical record — was a major accomplishment and a direct result of our educational and lobbying efforts. If allowed to stand, it may prove to be the most crucial and far-reaching consequence of these regulations. The establishment of the category “psychotherapy notes” and the confidential communications that they represent as a distinct entity, separate from the general health care record, marks a significant step forward in our attempts to construct a legal “firewall” of privacy and privilege between patient-therapist communications and the various entities that wish to have access to these communications.
Before we can sit back and rest on our laurels, however, we must overcome at least two major hurdles. The first is to convince or compel HHS to allow the regulations to go forward and become the law of the land as Congress has required. This is fast becoming an uphill battle and may require an appeal to the federal courts for a judicial remedy on the grounds that HHS's failure to comply with Congress's law is illegal and damaging to the public welfare. It is our contention that privacy is fundamental to decent-quality health care and privacy delayed is privacy denied. If we are successful and the regulations do become law, the degree to which they truly protect the privacy of therapist-patient and analyst-patient conversations will depend on how the definition of “psychotherapy notes” contained in the regulations is interpreted and how the regulations are implemented. The latter comes under the jurisdiction of the Office for Civil Rights (OCR), the HHS agency charged with enforcing these regulations.
The American's Joint Committee on Confidentiality (JCC) has already begun to fashion a careful and detailed description of our position on the meaning of “psychotherapy notes” for the OCR. Along with Powers, Pyles, Sutter & Verville, the JCC and the Committee on Government Relations and Insurance are prepared to lobby actively for its implementation.
By the time this article goes to press, the situation regarding the regulations may have changed again. You may have received informational updates or requests for specific action in support of our efforts. Consider this one more chapter in the intensifying, ongoing struggle to protect the privacy of patient-therapist communications. We believe that privacy is a cornerstone of high-quality analytic therapy, and the American is determined to continue to fight for its inclusion in our health care system.
[Watch for Deborah Peel's follow-up article in the next issue of TAP covering the response of the health industry and the Bush Administration to the new privacy regulations.]
Howard B. Levine, M.D., chairs the Subcommittee on Local Health Care Initiatives of the APsaA Committee on Government Relations and Insurance.