Urgent Action Required

Date: March 9,2001
To: State Psychological Association Executive Directors, Federal Advocacy Coordinators, Practice Division Federal Advocacy Coordinators and APAGS Coordinators
From: Marilyn Richmond, Assistant Executive Director for Government Relations, American Psychological Association Practice Organization
Re: Medical Records Privacy Final Rule

For more information: E-mail

Action:

Please write comments to Department of Health and Human Services (HHS) Secretary Tommy G. Thompson, urging him to make effective the final regulation that provides for standards for the privacy of patient records. The rule should have become law in late February, but on February 28, 2001, Secretary Thompson reopened the final privacy rule for further public comment. Secretary Thompson has indicated that he is reopening the rule due to substantial concerns raised regarding its "complexity and workability." Mainly, the health insurance and business advocates have been raising these concerns. They would like to prevent the rule from taking effect.

Psychologists need to let Secretary Thompson and HHS know that we support the rule and want to see it take effect as an important step to protecting patient records. Please note that this is an extremely tight comment deadline and that you must act quickly. HHS must receive your comments by 5 p.m. on March 30, 2001.

The rule contains many strong patient records' protections. Important to psychologists and their patients, for example, the rule requires patient authorization for release of psychotherapy notes, and psychotherapy notes are afforded heightened protection throughout. A health plan or provider may not condition treatment, payment, enrollment, or eligibility for benefits on patient authorization of psychotherapy notes. In addition, patients are afforded the right to adequate notice about how their records are to be used, the right to see their records, and a right to know to whom their records have been disclosed. State laws, such as stronger laws that address the privacy of mental health records, are specifically not preempted by this new rule, and states are free to enact stronger laws.

While the new rule is good for psychologists and patients, it is not ideal. As you know, we had written substantial comments when the rule was proposed in November 1999. We had asked that state laws not be preempted, that the psychotherapy notes authorization requirement be preserved, and that patient consent be required for release of records for health plan administrative purposes. These requests were acknowledged and included in the final rule. Other requests, such as expanding the "psychotherapy notes" exception to include all sensitive mental health information, reducing the administrative reasons that managed health plans should pro forma have access to patient records, and preventing patients access to their records for reasons of potential psychological harm, were not included. In addition, the rule is indeed lengthy and complex, and psychologists will need to meet its requirements regarding records' protections, just as all other health providers will need to do so.

Nevertheless, the rule will improve the privacy of patient records and should be made law. The Practice Organization has been working on gaining strong federal protections for patient records for nearly a decade. For years Congress struggled to enact a patients records privacy law but only produced inadequate bills that potentially would have weakened privacy protections afforded by many states. We worked to make sure that Congress never passed these bills. In 1996 Congress finally delegated to HHS the mission of effecting a federal records privacy law, and this rule is the result of that delegation.

Enclosed you will find APA's comment letter for the final rule. In our comment we urge Secretary Thompson and HHS to put the rule in effect. We also ask that sensitive testing data be included in the psychotherapy notes definition, commend the rule's preservation of stronger state laws and the rule's patient consent requirement, and remind the Secretary of changes that we sought and that were not accepted in the final rule. We urge you to use our comment, even take parts of it verbatim, for purposes of your own comment. Of course, you do not need to write extensively. Simply request that the rule be put into effect.

You will also find enclosed a brief summary of the final rule and information on how to send your comment to HHS. The summary lets psychologists know about the new rule generally, the protections it affords, and the future responsibilities of psychologists to meet its requirements. We will have much more to share with our members regarding the rule before its compliance date of April 14, 2003.

Considering the tight comment deadline, call us for assistance or questions. Doug Walter in our office is available to help you and answer any questions that you may have at (202) 336-5889.