At this time, while we savor an important moment of victory for the American people and the rights of privacy in the issuing of the 1996 Health Insurance Portability and Accountability Act (HIPAA) privacy regulations, it seems worthwhile to review the American's strategy for political action as it has evolved since May 1994, when the Executive Council of the American adopted our current set of political priorities. These included seeking absolute “statutory and contractual guarantees” of the rights of patients and therapists to contract privately for psychotherapy and psychoanalysis and “protection of patient rights to confidentiality [and] to privacy of personal information.” The adoption of these guidelines set in motion a complex and evolving process, to which many people have contributed in many different ways. I hope that my account does justice to all who have participated and to the many individuals and committees who have played important roles in the process.
Our basic assumptions have been (1) that privacy of the clinician-patient relationship is a fundamental prerequisite for good health care in general and (2) that therapist-patient privacy is an absolute precondition for the effective conduct of analytic therapies.
This last principle was asserted by the U.S. Supreme Court in its landmark 1996 decision in Jaffee v. Redmond, echoed in the recently released Surgeon General's Report on Mental Health and reaffirmed in the preamble to the rule of the Department of Health and Human Services (HHS) on medical privacy. In contrast to the other professional “guild” organizations like the American Psychiatric Association and the American Psychological Association, whose membership is divided among administrators and practitioners of many different orientations, we feel that as psychoanalysts we are uniquely positioned to speak to issues of privacy in the analytic therapist-patient relationship. It is therefore essential that whenever and wherever these issues arise, we take an active role in the political process and national debate.
At the federal level, potential threats to therapist-patient privacy have come from three separate quarters: federal legislation, executive regulations, and federal court decisions. Increasingly we have found ourselves involved in each of these areas. With the help of Jim Pyles and Powers Pyles Sutter & Verville, our lobbying firm in Washington, the Committee on Government Relations and Insurance (CGRI) and the Joint Committee on Confidentiality (ICC) monitor Congress, regulatory bodies such as the HHS, and the state and federal court systems.
“It seems clear from recent events that we must continue to monitor federal developments in legislation, executive regulations, and court decisions and be prepared to intervene when necessary. Our members must be informed and prepared to respond to calls for action, help, and financial support.”
But simply monitoring developments is not enough. We must be prepared to intervene to protect and extend the rights of our patients to adequate patient-therapist privacy. Interventions can include lobbying; personal networking and relationship-building with key Congressional leaders and aides, regulators and lobbyists; organizing grassroots letter-writing campaigns; filing amicus briefs in legal cases; and instituting legal actions.
In conjunction with these efforts, our Public Information Committee helps monitor the media coverage of relevant issues. It uses press releases and a developing network of media contacts to help influence and encourage stories that are relevant to our efforts.
We have come a very long way in a very short time. Although these activities can be costly and labor-intensive, they are necessary and are proving successful. For example, in regard to the recent HHS privacy regulations, we not only played a successful role in influencing the outcome of the privacy rule but also have begun to take an increasingly recognized position as spokespersons for psychotherapy privacy.
We must take careful account of those parts of the HIPAA rules that govern the newly created separate section of the medical record for “psychotherapy notes.” The JCC and CGRI have already begun plans to address HHS in a letter aimed at persuading HHS that enforcement of the privacy regulations regarding psychotherapy notes should be consistent with the spirit of the Jaffee-Redmond decision.
It seems clear from recent events that we must continue to monitor federal developments in legislation, executive regulations, and court decisions and be prepared to intervene when necessary. Our members must be informed and prepared to respond to calls for action, help, and financial support.
Through the Subcommittee on Local Health Care Initiatives, a subcommittee of CGRI, we have begun to create a network of local health care representatives in each component society of the American. Their job is to keep the members of their societies informed about relevant national health care-related events; coordinate local letter-writing and lobbying efforts when needed; and feed information regarding local and statewide health care issues back to the Committee on Local Health Care Initiatives, which in turn can relay that information to CGRI.
The activities of the local health care representatives are supported by the political action group, which consists of those members of the American who participated in the political action forum at the APsaA meetings in Washington, D.C. To date, the local representatives have dealt with challenges presented by proposed new state laws governing the licensing of psychoanalysis sponsored by the National Association for the Advancement of Psychoanalysis, adverse state legislation involving the practice of psychotherapy sponsored by the False Memory Syndrome Foundation, and various bills regarding health care privacy. This too is an ongoing battle that requires continued vigilance and preparation for action. One valuable lesson drawn from our experience at the state level is that we can help each other and learn from our colleagues' experiences to deal more effectively with these challenges when they arise.
One last component of our political action strategy that should be mentioned is a less familiar activity that I hope more and more members will be participating in: fundraising for political action.
Howard B. Levine, M.D., is chair of the Joint Committee on Confidentiality and co-chair of the Subcommittee on Local Health Care Initiatives.
A commitment to judicial activism, as reflected in our amicus briefs in the Jaffee case and the Bierenbaum murder trial and the threat to sue HHS for delaying implementation of the privacy regulations, can be expensive. So can the cost of supporting members' travel to Washington to lobby and attend hearings and meetings with Congress and public officials. These expenses can arise unpredictably. As an organization with little or no surplus in our budget, we are not yet in a position to create a contingency plan for such activities. As a result, we have to rely on the willingness of individual members to pay for their own trips to Washington or turn to you for special contributions to fund these activities. You have given generously, and we hope that you will continue to do so in the future.
As an organization, the American has been caught up in the rapidly changing circumstances of health care delivery in this country. At first uncertain and unaware of what was needed, we have responded thoughtfully, professionally, and to good effect, serving our patients and our profession. We are transforming ourselves and expanding our functions and analytic identities on the way to becoming, in the words of our ex-president Bob Pyles, “activist analysts.” It is an evolving process, but one that is essential to the preservation of the conditions needed to allow for the practice of psychoanalysis and analytic psychotherapy. I hope that this report helps clarify where we are today as we continue to head off into an uncertain future.