When the topic of practice guidelines is raised, many clinicians feel like turning away and tuning out. This reaction may reflect years of disappointment after encountering practice guidelines from other organizations that appear to present prescriptive, cookbook approaches to clinical work and are linked to a diagnostic system that ignores salient considerations at the heart of psychoanalytic treatment. Such experiences have led some to lose hope that guidelines could possibly help them face the challenges of doing good work in the current health-care climate.
I hope to show how APsaA's six psychoanalytic practice guidelines are different, and how they can help clinicians construct a safer environment for conducting psychoanalytic treatment. They aim to convey explanations of psychoanalytic procedures as clearly and jargon-free as possible. They do not attempt to link symptoms and diagnoses with procedures and techniques. They were written to address frequently reported problems that psychoanalysts encounter when they establish a psychoanalytic treatment relationship about which outside parties raise issues and request information. These guidelines also aim to give substantial national support when a member's psychoanalytic work is challenged.
Some of these guidelines are lengthy instead of terse, because they are meant to serve well in a variety of circumstances. It is important from a legal perspective to convey throughout that the guidance being offered is neither prescriptive nor restrictive and thus should not be misconstrued as restraining practice (or “trade”) or interfering with any analyst's clinical judgment.
Over two decades, our Committee on Peer Review has assisted members individually and confidentially with their concerns about interactions with third parties in the context of their psychoanalytic cases. Members complained that many patients' psychoanalytic treatments were harmed when outside parties tried to intervene or obtain clinical information for various uses. Sometimes, these were third-party payers. Other times, they were attorneys, courts, or state licensing boards seeking the records for a wide variety of legal and investigative purposes. Sometimes patients, and analysts, too, were eager to seek third-party financial assistance because treatment seemed impossible to arrange without it. When claims were filed, the third-party payer would request clinical information or charted records in order to authorize payment for treatment. Later, these requests re-emerged when the patient applied for disability, life, health care, and other forms of insurance. Sometimes, the request was retroactive and the outside party wanted the complete health-care record copied and sent to them for review. Sometimes, they directed the analyst to create specifically detailed summaries of the clinical treatment to send to the third party for review.
Analysts reported situations where third parties claimed that the patient had signed a consent that made the third party a “stakeholder” in the treatment process. On this basis, the third party sought to become “part of the treatment team” and conduct ongoing review of the treatment. Some patients expressed concern about this involvement and about releasing private information for external purposes. Others were not so concerned initially, and later were startled and surprised to learn about information that had been released and how it might be affecting their lives, for example, if they were denied a job, a job promotion, or insurance.
Often feeling isolated and alone, analysts have struggled to respond to what they experienced as a machine-like bureaucracy that thinks in ways alien to psychoanalysis. They discussed with the patient and tried to explain to the outside party why compliance with some third-party requests would be harmful to the patient's treatment. Analysts often became uneasy and unsure of their circumstances, either because they had created little in the way of a health-care record of the patient's treatment, or because the analyst had created extensive records mainly composed of analytic process notes that the analyst did not want to share with the patient or the outside party.
In some cases, the patient contacted the third party for advice about claims procedures and heard objections to the option that the patient and analyst could establish a private treatment arrangement outside the auspices of third-party authorization. The third party claimed to be willing and able to authorize any “medically necessary” treatment for the patient. In some cases, they warned the patient that any other arrangement should be considered suspicious and of dubious value. There were cases in which patients shared with the analyst that the third party criticized the analyst as being “unusual,” “uncooperative,” “practicing outside the bounds of normal community standards,” or “a dinosaur” that was trying to “exploit” the patient and the third party. In some instances, the third party claimed that psychoanalysis causes “regression” and fosters “dependency,” two elements that the third party regarded as unhealthy approaches that produce more pathology and suffering for the patient. Sometimes, the third party used this objection as the basis for recommending that the patient immediately transfer to another clinician who would conduct treatment as approved by the third party.
Robert R. Cummings, M.D., Ph.D., is chair of the Committee on Peer Review. He is a training and supervising analyst with the Southern California Psychoanalytic Institute and has a private psychoanalytic practice in Laguna Hills, California.
When disputes arose in the context of ongoing treatment, as for example when there was a change of insurance carrier, some situations escalated into fraud investigations to determine whether or not the analyst had accepted third-party subsidy for treatment not authorized by the third party. Federal entitlement programs, like Medicare, and other third parties have expanded the definition of fraud to include billing errors, lack of adequate documentation of treatment sessions, and any treatment that is retroactively determined by the third party not to meet their standard of “medical necessity.” Random or specific fraud investigations have sought review of single or even many of the analyst's charts. Third parties have demanded return of reimbursement for treatment they consider fraudulent under these new definitions.
Use of the guidelines can open a dialogue that reduces the probability that the patient will lose confidence in the analysis and suffer an untimely ending to the treatment.
Members have complained that third parties have encouraged licensing boards to investigate analysts for alleged misconduct and practices that are alleged not to meet community standards. Often when our members contacted us, they shared how surprised they were to find themselves embroiled in these distressing circumstances. They reported that such disputes have had chilling effects on their lives and imposed a siege-like state on their patient's treatment that frequently resulted in a premature and clinically unsatisfactory ending of the treatment.
Because our committee's help does not serve as legal advice, many members have had to seek the help of an attorney to resolve these situations. Some analysts have had to return several years worth of reimbursements, amounting to many thousands of dollars, to settle these disputes.
Ideally these guidelines are used prospectively, for example, at the time when psychoanalytic treatment is first being considered, to explain policies about third-party involvement in treatment. In a more limited way, they can also be helpful once a difficult situation develops. If the analyst and patient oppose third-party efforts to impose ongoing review on the analytic treatment, the guidelines can be used to suggest to the third party an alternative review procedure that eliminates any need for the psychoanalyst who is treating the patient clinically to release confidential information to the third party. Use of the guidelines can open a dialogue that reduces the probability that the patient will lose confidence in the analysis and suffer an untimely ending to the treatment. Discussion of concepts presented in the guidelines provides opportunities for the patient to gain clarity about the conditions for third-party authorization of treatment, the likely effects of those conditions on treatment, and the actual amount of subsidy that the third party is likely to provide for psychoanalytic treatment. When a third party criticizes an analyst who does not chart progress notes or charges for missed sessions, the practice guidelines provide some support to verify that the analyst's approach is recognized and approved by our national organization.
Below are brief descriptions of the guidelines and the publications in which they appear:
Informed Consent to Review—benefits and risks that patients may consider in deciding whether or not to give consent for the analyst to create and release documents containing clinical information for third-party review of psychoanalysis and modified psychoanalytic treatment (CPT 90845). (This revised guideline is published as a centerspread in this issue of TAP)
Charting Psychoanalysis—the foundations for the recommendation that psychoanalysts not create and chart session-by-session progress notes for psychoanalysis and modified psychoanalytic treatment (CPT 90845). This guideline clarifies the differences between progress notes, process notes, working notes, and research notes. (Journal of the American Psychoanalytic Association, 1997, 45/2: 656-672.)
External Review of Psychoanalysis—the foundations for the recommendation that psychoanalysis be pre-authorized by a method of review conducted by a psychoanalytic consultant, who reports to the third party only on whether or not psychoanalysis is warranted; also recommendation that pre-authorized psychoanalytic treatment should not be subjected to ongoing review and presents reasons for this recommendation. (The American Psychoanalyst, Vol. 34, No. 2, 2000)
Charting Psychoanalysis, a Clarification—the reasons why charting of progress notes, including the creation of check lists that constitute progress notes, is not recommended for psychoanalysis and modified psychoanalytic treatment. (The American Psychoanalyst, Vol. 34, No. 2, 2000)
Appointment Records—how appointment and financial records, if kept, are considered to be part of a patient's health-care record; also the customary practice of charging a fee for missed appointments, the need to clarify such policies with the patient, and the recommendation that the patient clarify these matters with the third party to reach agreement about who will be responsible to pay this fee. (The American Psychoanalyst, Vol. 34, No. 2, 2000)
Interacting with Third Parties—the technical necessity for establishing a safe,
private, confidential treatment situation to conduct psychoanalysis and modified psychoanalytic treatment (CPT 90845). This comprehensive document presents ten conditions that serve to create such a safe environment to conduct treatment in conjunction with third-party authorization and subsidy. It also includes solutions to a variety of problems and dilemmas that members have encountered over the past two decades while conducting treatment that involved third parties. (Cummings and Gray, in publication, TAP, Vol. 36, No. 4, 2002.
The Committee on Peer Review offers a clinic at each national meeting, where members have discussed models for a health care record for psychoanalytic treatment that would be consistent with APsaA practice guidelines on charting (numbers 2, 4, and 5 above) and allow for clear differentiation between the official record and any private notes the analyst may keep separately.
Such a model might include five items: (1) the financial record, (2) documentation of a clinical assessment (or evaluation), the treatment planning process, and the treatment plan on which the patient and analyst agreed, (3) notes to document the occurrence of forms of treatment or recommendations by the analyst that the analyst believes are outside the usual scope of psychoanalysis (e.g. prescription of medication, psychological testing, referral to a neurologist, etc.) (4) any third-party correspondence and a note documenting the patient's consent for this correspondence, and (5) a discharge note.
The six APsaA guidelines also point to a few general considerations that might guide individual clinicians as they develop their model for creating psychoanalytic health-care records. The guidelines recognize that confidentiality for individually identifiable health-care records belongs to the patient, not to the analyst. Since the patient has the right to review anything in the chart, it is reasonable to conclude that everything in an official health-care record should be written with the understanding that the patient will read it during treatment or in the future.
The “Charting Psychoanalysis” guideline (number 2 above) establishes the basis for the recommendation that psychoanalysts refrain from documenting psychoanalytic treatment session-by-session. It explains why the creation of session-by-session progress notes can be detrimental to the treatment process and is unnecessary. In the Clinic, we try to help colleagues identify information that is appropriate to chart and that which is inappropriate. For example, in charting the clinical evaluation and treatment planning process, psychodynamic formulations and clinical speculations are inappropriate because they are hypotheses rather than facts.
When the challenge has stemmed from third-party goals to maximize profits by denying care wherever possible, or from ideologies that view a freedom-seeking treatment like psychoanalysis in a negative light, the six practice guidelines have been used effectively by many courageous members in legal proceedings.
In today's practice environment, any written record is discoverable. By law, many outside parties have gained rights and abilities to access individually identifiable health-care records, in some cases without the patient's informed consent. They include private insurance companies and government entitlement programs like Medicare and Medicaid. Even with legal protections like the psychotherapist-patient privilege (Jaffee-Redmond case), statutory protection of “psychotherapy notes,” and various state provisions supporting confidentiality for mental health-care treatment, all existing health-care records are discoverable if ordered by a court of law, including the clinician's private notes on the case. The APsaA guidelines can help clinicians protect the separateness of their private notes from the official case chart. State statutes of limitation can guide clinicians who choose to eliminate out-of-date charts from their files.
Engaging in good psychoanalytic work often requires courage to face seemingly impossible challenges. The most formidable challenges commonly emerge from the psychoanalytic exploration of inner life. Also, history shows us that a mighty challenge sometimes emerges from outside the consulting room. For example, during World War II and for many years afterward, Eastern Europe's psychoanalysts faced successive governments that outlawed endeavors like psychoanalysis that aimed to help individuals think more freely and clearly for themselves. Many psychoanalysts chose emigration as their only viable choice.
Now in this country, our committee's efforts to research and develop these six practice guidelines have vividly informed us of the experience of many analysts and analysands who engage in psychoanalytic work in a culture whose socio-economic leadership has shown suspicion and sometimes active hostility rather than support for psychoanalytic work in recent years. We have come to understand some of the economic and ideological motivations for this active non-support. That understanding has influenced the development of these guidelines.
When challenge arises from misunderstanding of psychoanalysis, unfounded fears that psychoanalysis will harm patients, or legitimate concerns to guard against fraudulent, wasteful, and exorbitant expenditure of limited resources, these guidelines offer ways that psychoanalysts and analysands can cooperate with third parties to allay these concerns.
When the challenge has stemmed from third-party goals to maximize profits by denying care wherever possible, or from ideologies that view a freedom-seeking treatment like psychoanalysis in a negative light, the six practice guidelines have been used effectively by many courageous members in legal proceedings. Their efforts as well as APsaA's organized program to address and inform government actions are helping to substantiate the quality aims, and effectiveness of psychoanalytic work, maintain freedom to offer private, confidential treatment to patients, and highlight the motivations of the opposition for all to see.