American Psychiatric Association
1000 Wilson Blvd
Arlington, VA 22209
Testimony of the
American Psychiatric Association
National Health Information Network
National Committee on Vital and Health Statistics Subcommittee on Privacy & Confidentiality
March 30, 2005
It is in honor for the American Psychiatric Association to present written testimony to the Privacy and Confidentiality Sub-committee of the National Committee on Vital and Health Statistics. The APA is our country’s oldest medical specialty society representing more than 36,000 psychiatric physicians nationwide and many in foreign countries.
APA members are on the front lines of treating mental illness across the country. They serve as clinicians, academicians, researchers, and administrators. This extraordinarily diverse group may work within large systems of care including multi-specialty groups, emergency departments, in patient settings or, may practice in solo private offices with little exposure to insurance billing, electronic medical records, or other issues of “health care operations”. This wide diversity of treatment settings leads to variation in how the NHII is perceived and presents challenges for the association to come up with clear policies in this critical area of professional conduct.
We have members who feel that psychiatric records should remain paper based. We have members who feel that psychiatric records should be an integral part of the general medical record like any other specialty of medicine. And, we have members who feel that there is a middle ground.
The APA believes that the NHIN has the potential to decrease treatment errors, improve communications between health professionals and assist psychiatrists with evidence enhanced guidelines. However, as we have testified so often, protections for privacy and security must be built into it from the ground up.
Regrettably, it is too often overlooked that confidentiality is an essential element of high quality health care. Some patients refrain from seeking medical care or drop out of treatment in order to avoid any risk of disclosure of their records. And some patients simply will not provide the full information necessary for successful treatment. Patient privacy is particularly critical in ensuring high quality psychiatric care.
Both the Surgeon General’s Report on Mental Health (1999) and the U.S. Supreme Court’s Jaffee v. Redmond decision conclude that privacy is an essential requisite for effective mental health care. The Surgeon General’s Report concluded, “people’s willingness to seek help is contingent on their confidence that personal revelations of mental distress will not be disclosed without their consent.” In Jaffee, the Court held that “Effective psychotherapy depends upon an atmosphere of confidence and trust…. For this reason the mere possibility of disclosure may impede the development of the confidential relationship necessary for successful treatment.” The APA and its members hold these statements as core values. We must not abandon the very principles of privacy in a NHIN that have enabled patients and physicians to forge a relationship of trust.
The APA pushed hard for written informed consent for the release of identifiable health information but lost that battle during the early part of 2001. I would think it fair to say that the replacement of informed consent with the current Notice has not worked. It is mindlessly signed millions of times each day by uninformed citizens, and has been a failure that should be addressed.
The APA has pushed for HHS to follow the recommendations of the Surgeon General’s Report on Mental Health (1999) and the US Supreme Court’s Jaffee v. Redmond decision. Both concluded that people’s willingness to seek help is contingent that their information will be held in confidence. As psychiatrists, it is hard to assure a patient about confidentiality when the headlines are full of data bank breaches by hackers and insiders.
The APA feels that a less than adequate job has been done so far in informing the public about how their personal identifiable information is protected and used. Few patients read the long notice they are asked to sign and even fewer understand the legal terminology within it.
The APA feels that sensitive identifiable information should be controlled by the patient and not released without specific consent except in extraordinary situations. We are not alone among our medical specialty colleagues in this desire. Unfortunately, specialty societies with these strong beliefs are probably in a minority in the house of medicine.
Security measures need to protect the patient’s sensitive information through a lock box that will prevent exposure to a sensitive file. An unauthorized user of the system should not be aware there is any sensitive information in the patient’s file.
Voluntary for Patients and Physicians
Physician and patient decisions to take part in the NHIN should be voluntary. Many patients come to a psychiatrist with the clear directive that none of the information should go back to the referring primary care physician. For numerous reasons, including stigma, office personnel etc., they do not want easy access to their information. Should they have this right? Child psychiatrists frequently are asked by their patients not to send information to their pediatrician because the child often feels that that the referring physician will tell parents everything. True or not, should the adolescent be able to direct the psychiatrist to not communicate fully with the referring pediatrician?
HIPAA a floor of protections
While the HIPAA Privacy and Security Rules provide an important floor of protection for patients, they are not sufficient in dealing with the NHIN where more protections are needed. The right of consent is perhaps most important for those persons seeking and receiving mental health services. Mental health records can contain for the purpose of treatment particularly sensitive and potentially stigmatizing personal information if inappropriately disclosed. Considering the sensitivity of mental health records, patients should have the right to consent to their use and disclosure to insurers and other third parties.
Few psychiatrists use HIPAA as a standard for privacy and confidentiality. They still, with few acceptions, get full informed consent for sharing health information with any other entity. This is admittedly easier for psychiatrists in small offices than it is for primary care doctors because of less patient volume in their practice. The APA feels that the written consent provision should be restored, with narrow exceptions for situations in which it is impractical or where it could have unintended consequences, as examples, when a patient’s information is needed to fill a prescription or schedule a referral, or to review previous treatment records so there will be no delay in treatment. This could be accomplished in a variety of ways. The patient’s consent, appropriately noted in the patient’s medical record, could be obtained orally or by fax. Physicians and other health care professionals can document in the record oral consent where that occurs.
Preventing Medical Errors
In today’s society psychiatric patients may see several health professionals in different locations. This results in a disjointed patient record, which can lead to medical errors, treatment delays and less than optimal treatment outcomes. Additionally, the Institute of Medicine reported in 2000 between 44,000-98,000 Americans die from medical errors annually. An electronic medical record could prevent some of these errors by having the patient’s record accessible to all health professionals through a NHIN. However, the APA does not agree that record accessibility automatically trumps record privacy and security protection. Ultimately, the American people will not entrust their medical information to electronic records unless they believe their information will remain confidential and secure in this computer age.
Exchange of Information
The NHIN must not be a centralized storage of electronic medical records, but rather a decentralized system. Health professionals at the local level must keep medical records. This will allow networks to talk to each other when authorized physicians and hospitals need the information. A patient’s information must be exchanged over a secure system.
“Minimum Necessary” Exchange of Information
The American Psychiatric Association does not support the use of a National ID to exchange the identifiable data. As the privacy rule provides, only the “minimum necessary” information should be exchanged. The “minimum necessary” release of information is of critical importance to the privacy of a patient. The “minimum necessary” requirement balances electronic access by ensuring that, for these purposes, the minimum amount of patient information will be disclosed in each instance.
National Health Information Network Membership Requirements
The NHIN must be built on a set of widely accepted rules that users of the system must follow to be a certified member. These rules need to be strictly enforced to prevent violations to the privacy and security of the patient’s record. The physician-patient relationship is built on trust and the NHIN must also be built in a way that will not undermine that trust.
There should be tough enforcement regulations in place to support privacy and security guidelines. Patients should have recourse if their medical privacy and security are violated in this country or offshore. The American Psychiatric Association wants to ensure there is no downstream release of information to marketers. Strong enforcement regulations will send a powerful message to patients and providers that privacy and security will be protected.
Much of health care is still provided by physicians in small practices. An estimated 60 percent of practices are in offices with 10 physicians or fewer and 35 percent in offices with three physicians or fewer. Small practices of psychiatrists are even more prevalent. Among the biggest barriers to health information technology adoption among small doctor groups are the high costs—more than $30,000 per doctor—as well as staff time to transition to electronic health records, according to the American College of Physicians (ACP). The cost of hardware, software and time lost in terms of patients not seen while physicians learn and impute information into the computer system are factored into this figure. Many psychiatrists feel this is a federal unfunded mandate with little chance for recouping this significant investment through efficiency in their offices.
The federal government and other payers must provide funding for the infrastructure’s adoption. Federal funding such as demonstration projects, grants, low-cost loans, and tax credits are critical for education and implementation of an electronic medical record. States, as a major purchaser of mental health, must place an emphasis on the NHIN and make commitments to help create and finance the infrastructure.
Private entities that also benefit from a NHIN should help with funding physicians’ health information technology including hardware, software, and services that are necessary to participate in a NHIN. However, a GAO report in August 2004 pointed out that today’s fraud and abuse laws such as the Anti-kickback provisions in Medicare and the so-called “Stark I” and “Stark II” rules present barriers by impeding the establishment of arrangements between providers such as the provision of health information technology. Exceptions or safe harbors from those statutes must be carefully crafted so referrals or other business is not generated to the private entity.
In conclusion, the APA believes that the National Health Information Network must be a system whose cornerstone protects the privacy and security of the patient’s medical information. It is essential that sensitive medical information, including sensitive patient psychiatric records, remain confidential and secure. The Hippocratic Oath states “First, Do No Harm”. It is imperative that a National Health Information Network abides by this concept. This can best be accomplished by focusing on these principles we suggest in a NHIN.
Thank you again for the opportunity for the APA to submit written testimony to you today.