The Confidentiality Law of the District of Columbia (Mental Health Information Act of 1978) has been an important piece of legislation not only for the District of Columbia but also for the nation as a whole. The D.C. law was based, at least in part, on a model law published by the American Psychiatric Association. Jerry Beigler, past chairman of the APsaA Confidentiality Committee and founding chair of the American Psychiatric Association's Confidentiality Committee, played a major role in the development of that model law. In addition, the Surgeon General's Mental Health Report in 1999 took note of the Supreme Court Jaffee-Redmond decision, establishing a psychotherapist-patient privilege in federal courts, and proposed that the New Jersey Confidentiality Statute (a virtual clone of the D.C. law) serve as a model confidentiality statute for the United States. The American Psychiatric Association's Minimum Necessary Guidelines developed in part because of the work of Paul Mosher, Beigler, and others, is a companion piece that explicates the psychotherapy notes section of HIPAA. It also leans heavily on the D.C. law. The D.C. law itself was drafted by a committee of the Washington Psychiatric Society (WPS), chaired by psychoanalyst Harold Eist, who was assisted by WPS attorney Armin Kuder.
About four years ago, we became concerned because the D.C. law was being ignored by insurance companies who were demanding large amounts of information in order to pay claims, including in some cases complete records of the treatment (clearly in violation of the D.C. law), and also by mental health professionals who either did not know about the law and/or who assumed that it would not be of help to their patients. We then registered a complaint with the D.C. Insurance Commissioner's Office.
After declaring some of the more egregious violations of the law unacceptable, the D.C. insurance commissioner, Lawrence Mirel, created a working group, chaired by Kathy Willis, D.C. Health Policy Advisor, and composed of clinicians representing local mental health professional organizations and insurance company medical directors. This working group was charged with the task of seeking a mutually acceptable understanding of what the D.C. law means. Although the D.C. law is simply written and its main points can be summarized on a single page, the process proved to be a long and difficult one, lasting approximately four years.
However, we have achieved a consensus on what kinds of information insurers may request and clinicians may disclose, with patient authorization, to third party payers for routine claims review, in those cases where third party payers request information about the treatment that is being conducted, beyond routine billing information. This consensus was achieved by a coalition of mental health groups, both local in the D.C. metropolitan area and national, in which the American Psychoanalytic Association played a crucial role.
The commissioner will now issue proposed regulations and invite the larger mental health, insurance, and legal communities, as well as the Washington, D.C. community at large, to comment within a 30-day period. Following this period of review, it is the commissioner's intention that the results described below will be the official policy of the D.C. Insurance Commission. It will apply to any case treated in the District of Columbia and/or covered by a health insurance policy that was issued in the District of Columbia, where a third party payer seeks information beyond the billing information.
The D.C. law permits only the following five categories of information to be disclosed to third party payers for routine claims review, providing the patient has authorized this disclosure:
Administrative data.
Patient's status re: voluntary or involuntary
Diagnosis, according to a professionally accepted diagnostic system, such as the ICD 9 or DSM IV (with 5 axes).
Prognosis, limited to estimated duration of treatment.
Reason for admission or continuing treatment.
It is with this last category that we had the problem. The vague wording in the D.C. law itself created a loophole through which insurance companies could demand increasingly large amounts of information. As a way to close that loophole, the group ultimately agreed that the information that could be disclosed under this category be limited to the following:
A brief statement of the presenting problem and the goals of the treatment, plus details about any medication that is being prescribed.
The commissioner understood that not every insurance company requires an individual treatment plan before paying claims and that not every treatment can be conducted while supplying even the relatively limited information described above. The idea was to set some limits in those cases where the insurance company requires an individual treatment plan and the therapist and patient believe that they can work effectively within that context.
We hope that, once the consensus that we have achieved on this part of the D.C. law pertaining to routine claims review becomes official D.C. policy, we will be able to work on the portion of the law that pertains to the use of a confidential, independent mental health reviewer to consider cases where the insurance company believes that a more in-depth assessment of the case is needed. If we are able to reach accord on this matter, then it
Barry J. Landau, M.D., and Elizabeth Hersh, M.D., are co-chairs of the Washington Psychiatric Society Legislative Subcommittee for Insurance and Regulatory Matters, as well as co-chairs of the local D.C. Confidentiality Coalition of mental health organizations.
may be possible to use the independent review for those cases where disclosure even of the limited information that the D.C. law permits for routine claims review would be more disclosure than the confidentiality requirements of a particular mental health treatment could allow.
We want to emphasize the crucial role the American Psychoanalytic Association played in this process. The on-going support and advice by the APsaA Joint Committee on Confidentiality, chaired by Howard Levine, was of vital importance in helping us to sustain our effort over four years. So, too, were contributions by the Committee on Government Relations and the Task Force for Access to Care. In particular, our collaboration with Paul Mosher was crucial in helping us to develop and clarify our thinking in regard to the meaning and wide ranging usefulness of the D.C. law. As noted above, Jerry Beigler also provided crucial expertise and knowledge of this area. Jon Meyer, president of APsaA, helped us with further development of strategy and by meeting with us and the D.C. insurance commissioner at a crucial stage of the process. The Association's legislative consultant, attorney James Pyles, greatly helped us develop our strategy of working with the D.C. insurance commissioner. In addition, APsaA members, Danille Drake (who functioned as unofficial secretary of our local working group), Earle Baughman, and Ernest Wallwork participated in the many meetings at the D.C. Insurance Commissioner's Office.
At the present time, the consensus agreement has been sent by the D.C. Insurance Commissioner's Office to the D.C. attorney general for legal review. The plan is that, once the agreement is confirmed as legally appropriate by the D.C. attorney general, the D.C. insurance commissioner will issue the proposed regulations inviting public comment during the 30-day period, referred to above. Once that is accomplished, the agreement would become official policy of the D.C. insurance commission.