|
By Jennifer Brewer
In April 2003, amendments were put into effect to alter the Health
Insurance Portability and Accountability Act (HIPAA) Privacy Rule
enacted in 2001. According to the plaintiffs in a lawsuit against
the Department of Health and Human Services (HHS), these amendments
violate longstanding medical codes of ethics and were enacted illegally.
"The HIPAA Privacy Rule deals with the fundamental right to privacy,"
says Bob Pyles, M.D., chairperson of the government relations committee
for the American Psychoanalytic Society (APS) and its past president.
"And that's a constitutional right."
The central issue for Pyles and others, including Deborah Peel,
M.D., president of The Appeal for Patient Privacy (a 501c3 nonprofit
dedicated to supporting the lawsuit), is that the amendments allow
for entire medical records to be shared without specific patient
consent. Further, they believe that the way HIPAA is worded makes
it difficult to understand the depth of privacy violation that will
be possible.
"HIPAA compliance has become a huge industry for advising lawyers,"
says Pyles. "Nobody can figure out what it means and you can get
different readings." Peel adds, "Therapists don't want to have to
become legal experts in order to practice."
Pyles points out that the original HIPAA rules were written with
privacy in mind, as a safeguard against wholesale sharing of information
through electronic means, and that the APS worked with the Clinton
administration to help form the rules and special exceptions specifically
for mental health records. But the amendments reverse much of HIPAA's
original content, say Pyles and Peel.
Peel also believes the amendments were enacted unlawfully. "By
federal law there has to be a comment period. They received 11,000
comments from the public and 80% of them said not to eliminate the
consent requirement. HHS clearly ignored the public's preference
to retain consent. And, because HHS did not notify the public that
the proposed amendments would eliminate consent, many pro-consent
organizations did not even submit comments."
Pyles and Peel say there are effective means to protect patient
privacy, whether or not therapists are covered entities under HIPAA.
They believe, however, that the aim of HHS is to compel all health
professionals to become covered entities, so that it will become
more difficult to protect privacy if legal action isn't taken. "HHS
already has moves underway to close the 'country doctor' loophole,
and will use tremendous pressure to bring state laws into compliance
with HIPAA," says Pyles. Because HIPAA was originally written to
protect electronic information transfer, a therapist can avoid being
a covered entity by avoiding electronic claims. According to Pyles,
however, an entity with 10 or more employees is covered by HIPAA
even if they do not submit any data or claims electronically.
It is essential for therapists to be familiar with individual state
laws, which Pyles and Peel point out, are stronger than the HIPAA
and HIPAA amendment regulations. HIPAA asserts the primacy of state
laws, so that therapists may cite these laws as basis for not complying
with information requests.
While a third party may request the full medical record of a patient
and receive it without the patient's specific consent, therapists
are not required to submit their psychotherapy notes if the notes
are kept separately from the primary medical record that includes
basic information such as diagnosis and treatment plan.
As Peel puts it, as long as you are dealing with a third party
payer, "you have to tell them what they are paying for." But she
believes that released information should be limited to basics of
diagnosis and treatment and not include notes that stem from a patient's
most private revelations. She considers the potential for release
of these notes as a serious threat to trust, the foundation of the
patient-therapist relationship.
Peel says that even when a therapist is following legal practices,
third parties can exert significant financial pressure for more
information and she believes that the HIPAA amendments will make
it more likely that they will succeed in getting private information
released. "But if someone is a licensed physician or psychotherapist,
a health plan shouldn't be able to decide on the standard of care,"
she adds.
The lawsuit, Citizens for Health et al vs Tommy G. Thompson, Secretary,
U.S. Department of Health and Human Services, was filed in federal
court in Philadelphia on April 10, 2003. The plaintiffs' first brief
was filed on September 4, and amicus briefs are expected by early
October. A decision is expected by early 2004.
Whichever way the decision goes, Pyles expects there will be an
appeal process and he would like to see the case end up in the Supreme
Court. "I see it as a precedent setting case. It deals with the
fundamental right to privacy. That's a constitutional right and
I would like to see this case at the highest level possible," he
says.
Possibly because primarily psychiatrists originated the lawsuit,
Pyles reports that there are fewer therapists from other disciplines
involved. He believes strongly, however, that the HIPAA amendments
affect all mental health professionals and is actively seeking further
involvement from such professionals as clinical psychologists and
social workers.
Further information, including the text of the lawsuit, updates
and ways that practitioners can support its efforts, may be found
at www.patientprivacy.info.
Practitioners interested in discussing the HIPAA amendments or the
lawsuit may also contact Pyles directly at 781-235-6211 or rpylesmd@comcast.net.
|
