Privacy Rule Shows Need For Documentation Standards

The Department of Health and Human Services (HHS) has issued a report describing many of the negative consequences of the failure of managed care organizations (MCOs) to reach an agreement with psychiatrists about what information the MCOs can require from them about patients.

The report, “Privacy Issues in Mental Health and Substance Abuse Treatment: Information Sharing Between Providers and Managed Care Organizations,” came about as a result of a meeting with senior HHS officials in which then-APA president Richard Harding, M.D., and president-elect Paul Appelbaum, M.D., presented member concerns about interpretation of the “minimum necessary information” language of the Health Insurance Portability and Accountability Act (HIPAA).

Harding told Psychiatric News, “Very soon after that meeting, APA’s Board of Trustees approved the document ‘Minimum Necessary Guidelines for Third-Party Payers.’ We quickly sent them to HHS to demonstrate that APA had taken an active role in addressing the issues related to the preservation of privacy of our patients under HIPAA. We made it clear that the guidelines represented the best thinking of our profession, but we expected them to be used as a starting point for a negotiated agreement with MCOs about information collection.”

HHS subsequently let a contract to Mathematica Policy Research Inc. to provide information that would “assist the managed care and treatment communities in respecting the privacy of patients while addressing the care management needs of MCOs.”

The study’s authors, Suzanne Felt-Lisk and Jennifer Humensky, noted, “APA’s release of its ‘Minimum Necessary Guidelines for Third-Party Payers’ in December 2001 shows that the issue remains a significant concern for providers.”

Their comment is borne out by recent charges by Oxford Health Plans that a number of its participating psychiatrists and mental health professionals in at least three states had not provided sufficient documentation to substantiate the codes they billed for and was thus demanding that they repay varying sums of money to the company (see page 1).

The study by Felt-Lisk and Humensky consisted of telephone interviews with “consumer advocates, health care providers, and provider associations,” and managed care experts from October 2001 through May 2002 and a review of relevant literature.

The authors examined 11 forms used to collect health information by a variety of MCOs. Elements common to most of the forms include a coded diagnosis, including the Global Assessment of Functioning score; treatment information, including frequency and duration, types of services, and expected outcomes; current medications and compliance; and coordination with primary care doctors and supportive services.

The authors found, however, wide variance in information collected concerning patient history, symptoms or presenting problems, and level of risk of harm to self or others.

The authors conducted an in-depth analysis of three approaches to the collection of personal health information: APA’s “Minimum Necessary Guidelines for Third-Party Payers,” the Maryland Uniform Treatment Plan Form, and the Magellan Treatment Request Form (Magellan TRF).

APA’s guidelines require collection of the least amount of information. In the side-by-side analysis in the report, for example, APA guidelines require only that the physician state whether the patient is receiving medication.

The Magellan TRF requires a list of current medications. The Maryland form, which was developed as a result of action by the legislature, requires a list of psychiatric medications prescribed for two years and information about the patient’s compliance and side effects.

The APA guidelines require no information about previous treatment. The Magellan TRF requires information about the number of times the patient has been seen, classified by CPT code. The Maryland form requires psychiatric treatment and medication experience for two years and a medical history.

According to the authors, several problems result from the absence of a national standard for what constitutes “minimum necessary” information that physicians should provide MCOs.

Patients receive “very different privacy protections” depending on their health plan. Health plans that “work toward similar care management goals request vastly different amounts of personal health information,” a situation that is “inconsistent with the HIPAA emphasis on ensuring consumer awareness of and control over the flow of personal health information.”

Legal challenges to MCOs, the report said, “could arise if no action is taken to better standardize or limit personal health information collection for managed care.” Physicians face an administrative burden of “responding to many different types of health plan requests.”

Harding said, “Trying to resolve the issues by legislation could be risky. The most sensible approach seems to be to work toward a negotiated agreement, using APA’s guidelines as a starting point.”

Jerome Rogoff, M.D., chair of APA’s Corresponding Committee on Confidentiality, agreed with Harding that it is important to remind HHS officials and others that “even if APA’s guidelines never gain legal authority, they represent our profession’s best thinking about privacy protection.”

He believes that aspects of the report have the effect of marginalizing APA and its guidelines. Rogoff quoted a section that reads, “This group—a subset of the providers who hold the ‘administrative data only’ view. . .—would not be expected to participate constructively in an effort to generate a set of minimum necessary information by consensus.”

The Magellan TRF requires less information than the Maryland form, but the report appears biased toward the Maryland form and its method of development, according to Rogoff. The result is that APA’s guidelines appear to be more impractical and extreme than they are.

Actually, he said, the APA guidelines are “not far” from those mandated by legislation in New Jersey and the District of Columbia.

The report pays scant attention to the central issue that the primary purpose of MCOs is to make money for their stockholders, Rogoff argued. “Data collected are used to deny care and increase the MCO’s bottom line.”

He continued, “The Corresponding Committee on Confidentiality will be monitoring and reviewing the fate of this report and the issues it represents. We want to make certain that our views are represented if there are discussions about a national standard or any other effort to develop guidelines.”

“Privacy Issues in Mental Health and Substance Abuse Treatment” is posted on the Web at http://aspe.hhs.gov/datacncl/reports/MHPrivacy/index.htm. ▪