Patient Privacy and the Stimulus Package

Round one of the Stimulus Package passed the U.S. House of Representatives this week. The American Psychoanalytic Association has been lobbying for privacy protections in the bill, since on of its major components is a section that would promote development of a comprehensive health information technology system. APsaA has long been concerned about the potential for violation of confidentiality in electronic medical records and has been fighting for a number of years now to ensure the systems promoted by the government provide the maximum possible protections for patient privacy. Our legislative representative Jim Pyles offered the following analysis of the House bill and where it stands on the issue of protecting confidentiality, the right to consent, and other privacy issues.

Yesterday the House passed the "American Recovery and Reinvestment Act of 2009" (H.R. 1) which contains a Title IV entitled the Health Information Technology for Economic and Clinical Health Act (HITECH Act) that provides for policies and standards as well as incentives and penalties intended to promote a national electronic health information technology system. The HITECH Act has also been approved by two key Senate Committees and is part of the stimulus bill still pending in the Senate (S.1).

The HITECH Act passed by the House has the strongest privacy protections of any bill that has moved in either the House or the Senate to date, however, it does not contain several provisions championed by APsaA and the mental health practitioner community generally. It does not contain recognition of the patient's right to health information privacy, an express right of consent for the routine disclosure of health information or a definition of the term "privacy".

There are important privacy provisions that APsaA and others were able to get included. Perhaps the most important is that the House bill includes a provision stating that nothing in the bill shall constitute a waiver of "any privilege otherwise applicable to an individual with respect to protected health information of such individual." Section 4405(g). This acknowledges in statute the privilege recognized by the Supreme Court in Jaffee v. Redmond . The psychotherapist-patient privilege recognized in that decision, was only based on an interpretation of the Federal Rules of Evidence and could have been eliminated at any time by statute. If this provision remains in the final HITECH Act, the psychotherapist-patient privilege recognized at the federal level only in case law, will likely be preserved. The privilege essentially gives the patient a right of consent because the privilege can only be waived, other than in extraordinary situations, by the patient. Of course, the privilege is broader than the definition of "psychotherapy notes" in the HIPAA Privacy Rule.

Second, the bill includes the interpretation of "minimum necessary" that we were able to get included in the preamble to the HIPAA Privacy Rule. The bill states that the determination of what constitutes the "minimum necessary" information for any purpose is to be determined by the covered entity or business associate disclosing the information. Section 4405(b)(2). This means that a psychotherapist can determine whether a request for patient information by a third party is the "minimum necessary" for the purpose of the request.

Other significant protections and improvements for which APsaA advocated include the following:

1. An early provision in the House and Senate bills that would have prevented consumers and patients from having "undue influence" on health information technology policies and standards was deleted. APsaA took the position that patients are the most important "stakeholders".



2. Health information technology standards must be published in the Federal Register and made available for public comment before being adopted.



3. Enforcement measures for privacy violations were strengthened holding business associates liable for privacy violations and requiring the Secretary to investigate any "possible violation due to willful neglect".



4. Covered entities are required to grant requests by patients for restrictions on disclosures of identifiable health information for payment and health care operations purposes if they pay out of pocket. (Unfortunately, disclosures without consent can still be made for treatment even if the individual pays out of pocket.)



5. Technologies are to be developed that would protect the privacy of health information by allowing for "segmentation" of specific and sensitive information due to privacy concerns.



6. Technologies are to be developed that would allow individually identifiable health information to be rendered unusable or unreadable by unauthorized individuals when transmitted in a nationwide network or outside of the physical perimeter of a health care provider, health plan or clearinghouse. APsaA worked closely with Congress Markey (D-MA) on this provision.



7. Covered entities must notify patients of breaches of electronic health information, and report such breaches to the Secretary of Health and Human Services who will publish a list of significant breaches (involving more than 500 individuals) on the agency's website.

We are continuing to work with Senator Snowe (R-ME) to get a broad exception to the definition of "breach" narrowed.

In short, we have achieved many significant victories, and your patients' privacy rights should be much better protected because of APsaA's efforts, but there is still work to be done on the Senate bill and in working with the Obama Administration on implementing regulations.

Jim Pyles

The Emerging Evidence Base for Psychodynamic Psychotherapy--named a top psychiatry story of 2008

Seven stories were chosen as the Top Psychiatry Stories of 2008 by Journal Watch Psychiatry, a publication of the Massachusetts Medical Society, which describes itself as "an editorially independent literature-surveillance newsletter summarizing articles from major medical journals".

The January 2009 issue (Vol 15 No. 1) introduces a new feature, Top Stories of the preceding year. The editors write,

In making our choices, we have tried to strike a balance between relevance to the clinician, recognition of landmark studies, and media publicity and public awareness. Each Top Story draws on several related summaries, and most include new citations to enlarge their scopes.

Of the seven "winners", "The Emerging Evidence Base for Psychodynamic Psychotherapies" received the most column inches. Several meta-analyses were noted (and critiqued), including the study now famously reported in JAMA 300.

Findings regarding the value of transference interpretations, the value of transference focused treatment of patients with borderline personality disorder, psychoanalytic psychotherapy in the treatment of panic disorder were cited. Even countertransference was cited as a researchable phenomenon.

The authors of the top story piece delineate areas for further research, but they conclude with these thoughts:

In a year that has seen the passage of a u.S. mental health parity law--and in a treatment environment where psychiatrists are doing less psychotherapy, due in good measure to falling reimbursement for this modality--psychodynamic psychotherapies for specific conditions may have earned their place at the evidence-based table (third party payers, take note).

Journal Watch Psychiatry is a tremendous resource for busy practitioners. It's reviewers are not only sound thinkers but excellent writers. While psychoanalysts can be proud that new research in our field has made it to the Top Stories list, I do recommend this publication for a solid and reliable review of psychiatric research.

Readers can find references to the entire literature relating to psychoanalysis and empirical research by visiting the website of the American Psychoanalytic Association

The Long Haul--Meeting the needs of those who serve

I've just returned from APsaA's winter meeting, which was so full of riches that it could feed this blog for months to come.  One of many important themes at our meeting related to the needs of those who suffer psychological injury from war, and their families who suffer secondary and often severe trauma as well.  

Marie Rudden (chair of APsaA's Psychoanalysis and the Community Committee) and I were interviewed by a reporter from Medpage Today on psychoanalysis and treating soldiers with PTSD.  A video of the 9 minute interview can be found at the Medpage Today site.  We were able to get news of the important psychoanalytic  volunteer projects SOFAR and The Soldiers Project into the interview, as well as mention of APsaA's advocacy for privacy of treatment, a central issue in the military.  

Please take  look at the interview, and also visit the APsaA website and click on the Soldiers and Veterans initiative link.