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actual onset during the period of employment. Another factor is the need for certain detailed data for the insurance company's actuarial department in determining risk factors in setting future premiums, and for predicting how much money would be set aside for reserve for claim payments.
Basic information required. It is the opinion of the Task Force that insurance carriers could reasonably expect the provider (the treating psychiatrist, in this case) to supply the following information: 1. Recognition that a psychiatric condition does exist. (In place of diagnosis, the new proposed code system would be used.)
2. Approximate date that patient recognized symptoms and need for treatment, when asked "date of onset". (Note that Task Force is recommending that patients supply this, requiring review by the treating psychiatrist.)
3. Nature of treatment in general terms.
4. Billing which shows frequency, cost of treatment, and whether office, home, or hospital treatment, to support fees charged.
It was agreed by the insurance industry representatives that when they need additional information, the medical director of the insurance company would write specifically to the physician involved asking specific questions and giving the reasons for needing this additional information. The physician would not be in receipt of a form letter mailed by a clerk who has no knowledge of the problem. In addition, it was agreed that the reply to the letter would go directly to the medical director under his safeguarding of confidentiality.
Limiting information given to the employer. The common practice, particularly in employer-linked insurance coverage, of forwarding sensitive information to employers was faced. This has been one of the most embarrassing and sometimes destructive abuses of confidentiality that our Task Force faced. Misuse of this personal and, at times, compromising material could have deep impact on an individual's career, social, or personal life. Awareness of such a danger, has, in many instances, deterred individuals from seeking psychiatric help, even though this was a provision of the plan. This issue was extensively discussed in our May, 1971, workshop with the LIMDA, and, on a number of occasions with the HIC representatives. We met with the Medical Relations Committee of HIC in July, 1973, and this concern was reiterated. In our discussion with representatives of the Health Insurance Council, they agreed to seek methods of quarterly experience reports to employers that would omit any identifying data concerning the employee or employees involved in creating the expenses on the program. The industry indicates they are required to make such reports to employers to justify premium charges. They
were not able to justify having to supply the names of the employees involved. We had adamantly maintained a position that given all the arguments from the insurance industry, employers have no need for and should receive no data that can be identified with a specific known employee. The problem of employer administered programs was discussed. They are a major source of patient information reaching the employer. As a result of our discussions, the AMA and the insurance industry have published agreements to discourage and hopefully to eliminate such programs eventually.
Life insurance examinations limited to non-therapist physicians. The point was stressed with the insurance representatives that, if at all possible, examination and reporting for life insurance eligibility be done by a physician other than the treating psychiatrist. The insurance representatives could understand that such a request for information could jeopardize psychotherapeutic relationship.
Concern with storage of sensitive information within the industry itself. There has been considerable concern and question about insurance data banks, where allegedly confidential information is shared with other companies or organizations without patients' knowledge or consent. Although insurance industry representatives deny that this is a problem, documented cases have been received of instances of information being leaked accidentally or otherwise to patients and their relatives, of questionnaires requesting irrelevant information, and of use of the Retail Credit Bureau to investigate claims. Although HIC has given assurance that the RCB holds such information inviolate, complaints have been received that such investigations have included questioning neighbors about the nature of illness, thereby disclosing that the patient has been in treatment and even hospitalized. Some complaints also indicate that health care data acquired for claim payment has been shared with other insurance companies for other purposes.
Local Programs. Particular attention needs to be paid to the local administration of specialized insurance operations, such as CHAMPUS, an insurance program for the dependents of service personnel. The Task Force has been concerned with limitations which need to be instituted regarding the information made available to central and clerical personnel and in one instance successfully intervened when a Blue Shield organization attempted to force compliance with a request to photocopy psychiatric records on CHAMPUS claims.
"Consent to Release Information" Statement.
Present forms are not informed consent. The Task Force has had great concern with the blanket release of sensitive information,
which has been the result of previous release policy. The patient often is not aware of, and therefore has not given informed consent to, the possible consequences of signing many of the present release forms. This is true also of the current AMA-approved changed form that differs in language, but not legal application, from the previously approved version. ("I hereby authorize the release of any medical information necessary to process this claim".)
The Task Force again stated its objection to the consent statement on the basis that it is not informed consent for the following
1. The patient does not know what is going to be released.
2. There is no limitation as to whom the information may be distributed once it is released.
3. There is no limitation as to what is considered necessary, nor who determines that.
4. It does not limit sources of information that then may be used for obtaining this vague concept of necessary information.
Limitation on information release. The Task Force recommends that the APA adopt a position approving forms only if the consent to release information is limited to a specific recipient, a specific purpose, and a specific time (in place of the current blanket release). There actually is nothing to prevent the patient from adding restrictions to a consent form if the basic information needed by the insurance carrier is kept in mind as mentioned above.
It was further recommended that the APA adopt a position encouraging its members to refuse to channel any sensitive information through employers, and that reports to medical directors of insurance companies be noted, "Any divulgence to other parties or for any other purpose will constitute a breach of confidentiality and of medical ethics".
National Health Insurance. Task Force investigation showed that none of the National Health Insurance plans had machinery for limiting the accumulation of medical data, nor for its protection from misuse. The APA issued a position paper for correcting this oversight in December, 1971. (This is attached as Appendix C.) Our Task Force carried this to certain Senators and Representatives. This resulted in a strong section on confidentiality in the law establishing the Office of Drug Abuse. This, in turn, had effect on Senator Ervin and the Subcommittee on Constitutional Rights in their work on medical data banks and abuse of privacy. Also, a section on confidentiality was included in HR 1 (the bill which created the PSRO's in the Social Security program) as a result of these efforts. Plans were suggested for broader study of this problem. The Task Force estab
lished machinery to deal with these problems through legislative offices, as well as local levels when indicated.
These were two principles that the Task Force felt should be stressed. First, data required to assure an individual of medical care should be separated from the more complete and personal data needed for statistical purposes, administration or research. And, secondly, the data recorded should be protected from dissemination or misuse. Confidentiality of research data will depend on the mechanism and persons controlling the information machinery.
Legal Aspects of Confidentiality as it Involves the Courts.
Federal Codes of Evidence - Rule 504. Although many states have clear protection for physician- and/or psychotherapist-patient communications as part of their evidence codes thus creating privileged communication, the future of the protection in the federal courts is less certain. Recently, the Federal Codes of Evidence have been under the process of revision, a step that requires Congressional approval of the final code. Initially, all medical privilege was excluded. Then, psychotherapist privilege was reinstated.
The Task Force on Confidentiality initiated conferences with legal authorities to study the problems involved, which led to developing grounds for improving the protection. The information developed and the contacts made were used via some District Branches and their Congressional representatives to change the definition of psychotherapist to include all physicians treating "mental and emotional disorders". While this was desirable in itself, it became even more important in January, 1973, when the American Medical Association petitioned Congress to eliminate psychotherapist-patient privilege from the proposed code. Again, through the machinery established by the Task Force-working through state medical societies, their delegates to the AMA, and various legal authorities - the AMA reversed itself, and so notified the relevant Congressional committees. The Louisiana District Branch was particularly important in these endeavors. The proposed code is being evaluated by Congress, and will be rewritten.
This threat to elimination of this protection has been diminished, but is not absent and the need to strengthen the protection as noted originally still exists. (See Appendix G.) Congress later did eliminate Rule 504, but some senators advocate that it be restored.
Confidentiality as it involves the military drug-abuse program.
In response to a formal request by Senator Harold Hughes for a statement from the APA concerning the effect of the confidentiality or lack of confidentiality in treatment and rehabilitation program for
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drug users, our Task Force has prepared a draft of a position statement for the American Psychiatric Association, presented in Appendix C. The statement was prepared after extensive discussions with persons involved in various aspects of such programs. The statement has three major thrusts:
1. A nonpunitive program must be truly nonpunitive, and volunteering for the program should grant protection for a confidential evaluation and on-going participation.
2. Medical records should be held inviolate in the medical treatment sector.
3. The patient's confidentiality should not be breached to civilian sources through the use of identifying codes, or through the comingling of personnel and medical records upon separation from the service.
The preparation of the draft of the Task Force report, and contacts which were established with appropriate offices, had positive effects on the preparation of the regulations which were proposed by one of the three military departments. The Department of Defense has now decided to alter the use of SPN numbers to code behavior disorders among other items of reasons for discharge from service. These will no longer appear on any of the discharge papers available to the ex-military person or to employers. Reasons for discharge will be kept more securely in classified files.
We would recommend the acceptance and publication of the current draft of the position paper, and continued ongoing contact with the Department of Defense in regard to these issues.
Computer Bank Information and the Need for Increased Protection of Confidentiality.
It has become apparent from numerous sources that there are in existence data banks which contain sensitive medical information for purposes ranging from insurance to national security. This trend would seem to require immediate, positive steps to provide mechanisms of protecting confidential medical data.
The Task Force has always urged upon the American Psychiatric Association that it consider the problem an ongoing one, and adopt an active approach to coping with it.
In the fall of 1973 the Task Force in a report to the APA Council on Professions and Associations spelled out the need for a conference to consider "gathering, storing, and retrieval in information systems that would safeguard constitutional rights as well as the medical need for confidentiality and the privacy of the individual". We noted at the time that "the problem is getting out of hand, and that