Privacy Issues in Mental Health and Substance Abuse Treatment: Information Sharing Between Providers and Managed Care Organizations: Final Report. 4. Understanding the Three Approaches in Context

01/17/2003

While it is clear that the three approaches described above vary in how much information is shared, the context in which they are used or intended to be used must also be considered in order to understand the implications for consumers’ privacy.  The Maryland Outpatient Treatment Plan Form is designed to provide all information that an MCO or other insurer needs to make a decision about approving or denying treatment.  Although a denial can be appealed, this would require much more extensive information, probably the full medical record.  One provider who was involved in the development of the Maryland form stated that, because only 0.5% of outpatient treatment requests are denied, appeals would be relatively rare.

Table IV.2 
Privacy Laws of New Jersey and the District of Columbia: 
Disclosure to Third-party Payers
District of Columbia New Jersey
“Information limited to:

Administrative information

name, age, sex, address, identifying numbers, dates and character of sessions (individual or group) and fees

Diagnostic information

therapeutic characterization of the type found in the Diagnostic and Statistical Manual of Mental Disorder, or any comparable professionally recognized diagnostic manual

The status of the client (voluntary or involuntary)

The reason for admission or continuing treatment

A prognosis limited to the estimated time during which treatment might continue

If the 3rd-party payor questions the client’s entitlement to or the amount of payment benefits, they may, pursuant to a valid authorization, request an independent review of the client’s record of mental health information by a mental health professional or professionals. Mental health information disclosed for the purpose of review shall not be disclosed to the 3rd-party payor.

Section 6-2017. District of Columbia Mental Health Information Act

“Information limited to:

Administrative information

Diagnostic information

The status of the patient (voluntary or involuntary, inpatient or outpatient

The reason for continuing psychological services, limited to an assessment of the patient’s current level of functioning and level of distress (both described by the terms mild, moderate, severe, or extreme.

If the third-party payor has reasonable cause to believe that the psychological treatment in question may be neither usual, customary nor reasonable, the third-party payor may request, and compensate reasonably for, an independent review of the psychological treatment by an independent professional review committee.

The State Board of Psychological Examiners shall, within 10 days of the notification, inform the treating psychologist of two or more members of the independent professional review committee who shall be known as “:reviewers” and who shall conduct the review.

New Jersey Permanent Statutes: Title 45: Professions and Occupations Title 45:14-32. Disclosure to Third Party Payor

On the other hand, the Magellan Treatment Request Form, which requests less information, is designed to provide all the information an MCO needs to approve most cases.  All the study MCOs that use forms or interactive voice response systems follow up on some cases for more information, typically through calls from the case manager to the provider, before approving or denying payment for treatment.  In Maryland, although payers are supposed to request only the information in the form, one provider told us that plans sometimes look for more but back down when reminded that this is not allowed.  Providers can, however, submit additional information during the appeals process.

Under the APA guidelines, if an MCO or other insurer cannot make a decision based on the information allowed by the guidelines, then the case should be referred for review to a qualified psychiatrist who is independent of the insurer, whose cost will be borne by the insurer, and who would be given access to the clinical information necessary for assessing the need for treatment.  This approach is similar to the provisions of the DC and New Jersey privacy laws (see Chapter I).  We could not identify any information that would suggest either the benefits or costs of this approach based on the DC and New Jersey experiences. 

The benefits of the DC and New Jersey laws—and by extension the APA guidelines—are unclear in part because the extent to which MCOs and providers know about and follow the laws is not clear.  For instance, one Maryland provider noted that managed care firms based outside the state are particularly unfamiliar with the Maryland restrictions on information that can be shared.  As a result, it is up to providers to inform the MCO when it makes a noncompliant request.  One might suspect that the same could be the case in DC and New Jersey, but the laws there are substantially older than the Maryland requirement to use the Uniform Treatment Plan Form.  One respondent suggested providers may routinely give MCOs what they ask for even if the request is noncompliant.  Another provider believes that MCOs do back down if confronted with an objection based on the law.

The cost of the independent review process envisioned in the APA guidelines is also unclear.  The corresponding provision in the New Jersey law was used for five years in the late 1980s and early 1990s, prior to managed care.  However, those we interviewed did not know of readily available information on the cost of reviews during that time, and since then, the review process has largely not been used.  In DC, the costs of reviews are borne by the MCOs; systematically tracking down whether any DC MCOs used the provision and how much it cost was beyond the scope of this study.

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