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APA has taken its serious concerns about the new Medicare private contracting law to the source. In testimony delivered to the Senate Finance Committee on February 26, APA strongly urged committee members to amend the new statute to protect the confidentiality of patient records and remove the "ludicrous" provision that bars physicians from Medicare participation for two years if they enter into a private contract with any Medicare patient.
Calling it "the worst of all possible worlds," APA wants Congress to amend the law so that psychiatrists and other physicians can elect to sign private contracts with patients at any time if those individuals choose to do so in lieu of filing a claim with Medicare.
To comply with the current law, which was enacted as part of the Balanced Budget Act of 1997, physicians will have to ask all of their Medicare patients to agree to private contracting-an extremely unlikely prospect-if they go along with the request of even one patient to enter into such an agreement (I>Psychiatric News, November 7, 1997). Once a physician or health care professional signs a private payment contract, he or she must forward an affidavit to the Health Care Financing Administration in Washington, D.C., acknowledging the start of the two-year ban on Medicare participation.
This requirement to leave Medicare entirely for two years is "draconian" and "undercuts a basic foundation of the therapeutic relationship between psychiatrist and patient, namely continuity of care," APA argued in its Senate testimony. "A psychiatrist would be forced to decide whether to give precedence to the request of a single Medicare patient to guarantee absolute preservation of confidentiality via private contract, or to other Medicare patients who wish to have claims filed on their behalf."
In the former scenario many patients may terminate treatment with that psychiatrist to seek help from a Medicare-participating clinician, seriously threatening gains that have derived from the strength of the therapist-patient relationship. In the latter, the psychiatrist would have to ignore the express confidentiality-related wishes of a patient.
The danger also exists that patients could be repeatedly uprooted should the mandatory two-year opt-out gain popularity among psychiatrists and a succession of therapists informs a patient that if they want Medicare to continue paying for their care, they will have to locate another psychiatrist and begin treatment anew.
APA also pointed out that under yet another of the compromises implemented to bridge the chasm between advocates and opponents of private contracting, even opting out of Medicare does not guarantee a patient that his or her medical records will remain confidential. The law's wording permits the Secretary of the Department of Health and Human Services, who retains authority over the agency that administers Medicare, to gather data on "the fiscal impact" private contracting has on total federal expenditures for the Medicare program as well as on out-of-pocket expenditures by beneficiaries who choose to go the private contracting route. The Secretary can also use the data to evaluate the impact, if any, that private contracting has on the quality of care older Americans receive.
"It is impossible to envision how the Secretary would be able to fulfill these reporting requirements," APA emphasized to the committee, "without major breaches of patient medical record confidentiality."
For psychiatric care to succeed, however, it is critical that patients who request complete confidentiality for their treatment records are assured that their wish will be honored. Unfortunately, "the current morass surrounding the [private contracting] issue fails to address these concerns," APA testified. The need to restore unbreachable confidentiality protections was underscored in the U.S. Supreme Court's decision in Jaffee v. Redmond in which the justices ruled, "Effective psychotherapy depends upon an atmosphere of confidence and trust, and therefore the mere possibility of disclosure of confidential communications may impede development of the relationship necessary for successful treatment. . . ."
APA views the private contracting option as especially crucial now that the federal government is in the midst of a campaign to convince Medicare beneficiaries to enroll in HMO's and other managed care plans. In these treatment settings there is even more opportunity than in fee-for-service plans for third parties to gain access to treatment information that patients want held strictly confidential. This same government initiative also affects the continuity-of-care issue, since a patient may wake up one day to find that his or her longtime and trusted clinician is no longer on the Medicare HMO's provider panel. Private contracting supplies a valuable route for that patient to continue care without having to start over and build a relationship with a new psychiatrist.
Opponents of private contracting in Medicare have focused their arguments on issues far removed from confidentiality needs, however. Some are worried that should private contracting catch on, the U.S. will end up with a two-tiered health care system for its senior citizens defined by the financial ability of these individuals to pay for care that will be more expensive once they leave the Medicare program. The chair of APA's Joint Commission on Government Relations, Miami psychiatrist Ronald Shellow, M.D., maintains, however, that it is, in fact, the two-year mandatory ban that will foster a two-tiered system. Only physicians with wealthy patients will be able to afford the luxury of opting to decline all Medicare reimbursement for that period, he told Psychiatric News. For the vast majority of clinicians who treat Medicare beneficiaries, the alternative of opting out for two years is not financially feasible, and thus private contracting will have to remain unavailable to all their patients.
Others are concerned that Medicare beneficiaries could be subjected to pressure to sign a private contract for their care from physicians with whom they have had a long-term relationship and whose advice they trust implicitly. They maintain that this is not a far-fetched scenario among elderly patients, who are much less likely to switch physicians than are younger people. APA informed the committee, chaired by Senator William Roth (R-Del.), that the Association is not willing to "take so paternalistic and patronizing a view that seniors are incapable of being sound health care consumers. To the contrary, we find Medicare beneficiaries to be acutely aware of health care pricing. Thus we believe there is little evidence to support the contention that widespread price gouging will occur in the wake of a viable private contracting law."
APA concluded its testimony by thanking Senator Jon Kyl (R-Ariz.) and Representative Bill Archer (R-Tex.), chair of the House Ways and Means Committee, for introducing and championing "viable and rational" Medicare private contracting legislation in their respective houses of Congress.