Medicare, managed care, HIPAA, and the implementation of the Affordable Care Act (ACA) infringe upon the clinician-patient relationship and endanger private contracting, the cornerstone of private practice. Single-payer proponents advocate that private contracting and fee-for-service arrangements contribute to “cherry picking” of patients and would create a two-tier health care system. They argue health care services should be folded under one roof to contain costs and standardize treatment. This dim view of private contracting was enshrined in the Clinton health care plan and Kennedy-Kassebaum bill, precursors of the ACA; both plans contained language that infringes upon private contracting. Infringements upon the clinician-patient relationship and the unraveling of confidentiality by third parties have resulted in a heightened interest in private practice among psychoanalysts, many of whom enjoy the freedoms and benefits of private practice but also have supported the ACA.
Infringements upon the clinician-patient relationship and the unraveling of confidentiality by third parties have resulted in a heightened interest in private practice among psychoanalysts, many of whom enjoy the freedoms and benefits of private practice but also have supported the ACA.
The 2011 Psychoanalytic Professional Activities Benchmarking Study showed that the majority of psychoanalysts enjoy private practice. Interestingly and despite pressure upon private contracting, analysts estimated that among adult analytic cases, 71 percent were paid entirely by private pay, 32 percent by partly private pay, 16 percent by indemnity insurance, 9 percent by managed care, and 4 percent by Medicare/Medicaid/Champus. Among child analytic cases, 35 percent were paid through private pay, 47 percent by partly private pay, 19 percent by indemnity insurance, and only 2 percent by managed care. In terms of job satisfaction, an astonishing 98 percent of psychoanalysts said that they were either “very satisfied” or “satisfied” in their life's work.
A majority of analysts are accustomed to establishing their own fees, formulating and implementing their own treatments, and safeguarding confidentiality without outside interference. The private practice model has no doubt contributed to members' job satisfaction. In the previous issue of TAP (46/4), Marvin Margolis discussed boundary violations that occur when a patient's boundary is violated by an unethical analyst. But just as a patient's boundary can be violated, so too can the “clinician-patient boundary” by a third party.
A significant moment in the unraveling of the clinician-patient relationship occurred when physicians were automatically “enrolled” into Medicare. Although Medicare was touted as being voluntary, Medicare requires that physicians actively opt-out if they no longer want to be a Medicare provider. This arrangement redefines consent, because the physician never opted-in in the first place. Opting-out of Medicare means that a physician can no longer be reimbursed for Medicare patients treated in a hospital or clinic. For this reason, most physicians do not opt-out of Medicare.
If a Medicare patient requests a private contract with a physician outside of the Medicare system, a physician may request an Advanced Beneficiary Notice to notify Medicare of this arrangement. The physician however must not charge the patient more than what Medicare pays or balance bill, and agrees to refrain from billing Medicare for any patient for a period of two years after this notification.
Although there may be more work opportunities as a Medicare provider, another drawback is that if the provider has a private practice, the practice becomes subject to audits. In an audit, Medicare reviews records of Medicare patients, but also reviews non-Medicare (private contracting or otherwise insured) patients to ensure that the quality of care is comparable. Charts of non-Medicare patients can be reviewed even if a private contracting patient has not consented to such disclosure. Beyond audits and Medicare fraud, Medicare providers must disclose confidential information of individual patients in order to be reimbursed.
Graham L. Spruiell, M.D., is co-chair of the Committee on Government Relations and Insurance and a member of the Program in Psychiatry and the Law, Beth Israel Deaconess Medical Center, Boston.
As much as Medicare limits the rights of physicians, the Medicare-eligible patient gives up even greater freedoms. It is an undue burden on a Medicare patient to be forced to participate in a complicated bureaucratic process to enter into a private contract with a physician. Simply being 65 years old permits Medicare to infringe upon an elder's right to contract privately for health care and to be assured of confidentiality.
Managed care, like Medicare, has also impacted the private contracting boundary. While it is not necessary to go through a complicated Medicare opt-out process, managed care sets reimbursement rates. Patients sign a waiver relinquishing confidentiality in order to receive coverage. Additionally, managed care infringes upon the clinician-patient relationship by making de facto treatment decisions that are designed to cut costs by denying access to treatment. In denying access, managed care plans remain solvent. The contrast between managed care and private contracting could not be sharper; in private contracting, treatment decisions and the fee are left entirely to the private negotiation of the clinician and patient.
The Professional Activities Study analysts estimated a 76 percent majority of psychoanalysts did not participate in a managed care organization, while 24 percent did participate. An even larger percentage (82 percent) were not willing to serve on a health insurance panel, which suggests widespread antipathy towards the managed care model. This antipathy is understandable, because psychoanalysts have long understood that managed care is incompatible with confidentiality and the boundaries necessary for optimal psychoanalytic practice.
State licensing boards are beginning to require participation and competency in the electronic health record (EHR) as a licensure requirement. Additionally there are financial incentives to bill electronically. The moment a clinician transmits clinical data over the EHR, bills electronically, or is associated with an entity who does the same, that clinician will also be considered a covered entity under HIPAA and will have all the legal obligations of covered entities.
The Professional Activities Study showed that 42 percent of psychoanalysts were HIPAA compliant and 37 percent were not covered by HIPPA, while 20 percent were unsure. Many psychoanalysts, who do business with covered entities such as hospitals and clinics, may not realize that they have already met the threshold to be considered covered entities.
The Affordable Care Act is a work in progress that should not be judged prematurely. But some might say that it takes the worst of Medicare, (bureaucracy, regulations, audits, loss of confidentiality, and possible prosecution) and marries those qualities with managed care systems that are designed for efficiency and cost reduction. This sad union recalls John F. Kennedy's description of the city of Washington, D.C., “a city of Southern efficiency and Northern charm.”
The EHR is a central component of the ACA. Clinicians (providers) are assigned a national provider identifier (NPI), a unique number for every provider. Originally having an NPI was to be voluntary, but it is now a requirement for credentialing in hospitals. Insurers and state boards also require the NPI. Patients (consumers) will have a similar unique number in order to receive their benefits through the ACA; so both clinicians and patients will have a unique identifier that can be correlated. These identifiers are linked in the EHR, which is used to analyze health care delivery in terms of outcome and costs.
While increasing the number of patients covered by the ACA by 30 to 34 million, Medicare costs need to be reduced by $750 billion in order to keep the ACA cost neutral. Originally the administration claimed that the EHR itself would yield savings, which no longer appears plausible. Additionally, estimates for the total cost of the ACA continue to rise. Over the next 10 years the CBO recently estimated that the cost of the ACA would be $1.3 trillion. A more likely scenario is that reimbursement rates and access to treatment will decrease.
Whether or not our members support the ACA, there is little doubt that the Affordable Care Act breaches the boundaries of the clinician-patient relationship. If patients use their ACA benefits, personal health information will not be confidential and will be disclosed according to HIPAA rules for a variety of purposes without their consent. If a patient chooses to forgo ACA benefits and pays for treatment out of pocket, and a clinician agrees to work with the patient under those circumstances, then such a treatment is currently permitted under ACA. There is nothing specifically in the ACA that prohibits a psychoanalyst and a patient from working outside of the ACA system; however, this could change if Medicare “you're in or you're out” policy is applied to the ACA, or if we begin moving towards a single-payer system.
Besides infringing upon the clinician-patient relationship, Medicare regulations, managed care, HIPAA, and implementation of the ACA have a common thread: They were all initially promoted to clinicians and patients as being voluntary, i.e., requiring their consent; but in reality they are all involuntary and devolve consent.
Ideally, Medicare and the ACA would shift their policies back in the direction of a patient-centered health care system, away from a bureaucracy-centered health care system. As Ben Carson, director of pediatric neurosurgery at Johns Hopkins Hospital, recommended in a recent National Prayer Breakfast hosted by President Obama, the money currently spent on the health care bureaucracy could be better used to fund an individual medical savings account for every citizen.
With such a shift in the health care paradigm, divisive controversies over establishing fees, oversight of treatment, and confidentiality would dissipate. Unfortunately, there is little evidence that such an approach has support. It is therefore not surprising that private contracting is increasingly being seen as the only available way to preserve ethical principles of confidentiality and oversight over treatment.
Unless fundamental change is the aim, the remedy for a boundary violation is redrawing the boundary. We are limited as individual psychoanalysts in how we can defend our patients and ourselves against boundary violations by third parties, but as an Association it is possible to have an impact. This is especially important when it comes to being a covered entity under HIPAA, because a significant percentage of our members are covered entities.
CGRI's counsel, James Pyles, has clarified an important boundary of private practice by successfully lobbying for the inclusion of the following language in the HIPAA Omnibus Rule, “Final Rule,” that was issued on January 17, 2013, and is in effect as of March 26: “the right of the individual to restrict disclosures of protected health information to a health plan with respect to health care for which the individual has paid out of pocket in full.”
This simple, declarative phrase is a victory for private practice. It affirms that psychoanalysts and other clinicians, who are covered entities, have the right to provide confidentiality to patients who pay privately. Further, it recognizes that some patients realize that the only way to ensure full confidentiality is to pay privately. As a result of the inclusion of this phrase, covered entities will now be able to treat private pay patients outside of the health care system without violating their obligations to HIPAA, and without undermining their patients' confidentiality. Falling short of a full remedy, having this language included in the Final Rule will serve as an important step towards ensuring that private practice survives the coming transformation of health care.