- Del Meyer, MD - https://delmeyer.net -

Medical Record Confidentiality vs Gridlock

by Del Meyer

Medical record confidentiality is a serious concern of many patients. This is reflected in a lead, front page, headlined article titled: “Medical data private? No,” which I recently came across while passing through Hawaii. A companion article on page 10 indicated that a judge ruled in favor of the Hawaii Medical Service Association’s request for 15 records from a physician. To obtain the single record the HMSA really wanted, they requested 15. The other 14 served as a smoke screen. They were willing to invade the privacy of 14, uninvolved patients to protect the confidentiality of one member. The purported reason was to check possible billing fraud. Privacy issues directly affect medical care, according to Dr Joseph Heyman, former president of the Massachusetts Medical Society. “It’s a terrible, terrible problem and something needs to be done about it,” Heyman said.

The implication is that we need another law to protect patients’ privacy. California added nearly 1000 new laws in 1997, about the same as in each of the previous years and in the now subsequent years. LeRoy Green, who completed 35 years in the California State Legislature, admits that he personally introduced more than a thousand legislative proposals during these years with hundreds having become law. He states that the other 119 members do the same. In his final column, “The Greene Scene” titled “Gridlock,” he points out that, except for a few laws which he termed beneficial, (e.g. seat belts, helmets on cyclists) virtually all limit our choices and increase bureaucracies and penalties. These are strong words from a party stalwart who is not normally concerned with enlarged bureaucracies. And laws get longer, from the few words in the ten commandments, to a few sentences in the constitution, to volumes today. At some point, he predicts, the entire system will grind to a halt because we never learned how to subtract. For every thousand words we add, he feels we may subtract a sentence or two. Sooner or later, we will have covered everything conceivable with legal requirements. When that day comes, we may have frozen ourselves into total immobility or gridlock.

If another law is proposed that in some way protects our medical privacy, we can rest assured that our HMOs, Managed Care Organizations (MCO), or other insurance carriers will also have plenty of laws to protect their rights. If it comes to a urinating contest, we may all become soiled – none of us would pay another’s bills unless we knew for what we were paying. And the insurance company will have to, as a matter of business practice, verify that the services they are paying were indeed rendered.

So is there an alternative without restricting laws which may be a lose/lose proposition? There is. But it may be painful.

Insurers have relied on some sort of review process to verify claims. Usually a hospital system of quality management or chart review would satisfy. But with increased utilizations by patients whose medical care is free from additional costs after the employer pays the premium, healthcare costs have gone off the charts. Hence, managed care came into being to reduce costs demanded by businesses paying the premium, with the obvious decrease in quality, despite claims to the contrary. Thus HMOs and MCOs have started to review the charts themselves to verify that appropriate codes were used. These HMOs and MCOs have made numerous visits to my office to review 10 to 25 charts and never could find one error. Hence, they have reduced their frequency of visits. MediCal made two visits to my office over the past eight years, reviewing 300 codes on one occasion and 360 codes on another. They were unable to find one error. Certainly this is an invasion of privacy as these reviewers copy items as they please. They seemed to have copied entire visits that relate to any code. But it does give them the confidential information on any of these patients, which then goes into their briefcase with all the risks involved. Who knows if many patients’ confidential and personal/drug/venereal past may haunt them at sometime because a reviewer just happened to make another copy on the way to the state or HMO office?

Since the patient only pays a $5, $10 or $25 copay, there is no interest, concern or knowledge of the total charge the hospital, pharmacy, laboratory or physician renders to the carrier. However, if the patient paid a 10%, 20% or 30% copay, the patient would have an interest in the total bill, since that would affect the amount paid out of his or her own pocket.

Last December I read a letter from the family of a hospital patient requesting the patient be kept in over the four-day holiday weekend, about five or six extra days. The daughter had too much to do preparing for guests and Christmas dinner. Since Medicare pays the entire bill, there was no incentive to accept the discharge of the patient, since the $2,000 per day hospital charge would not be paid by the patient or the family? But isn’t an extra $12,000 for the additional six days an unnecessary charge to the taxpayers? I can assure you, if Medicare only paid 90% of the hospital bill and the patient had to pay 10% without MediGap insurance, the family would not have objected to their mother being released to a convalescent hospital on December 23 rather than on December 29. The simple additional 10% copay would then assure Medicare, or any other insurance company, that there is someone out there more effective than a reviewer to make sure the lowest possible bill is rendered.

May I also suggest that a 20% copay on outpatient surgical center charges would have the same effect to assure the cheapest possible treatment rendered. And for the sake of completeness, a 30% copay on all other outpatient physician visits, laboratory and pharmacy charges would make every beneficiary vitally interested in controlling healthcare costs.

How do we do this without more restricting laws? It could easily be accomplished by a simple change in the tax code. If all health insurance that followed this 10/20/30% copay were made tax deductible to either the employer or the individual (if MediGap were purchased, one would lose this tax deduction), managed care and HMOs would not have been required to reduce costs. And then we would not have to worry about the need to review our medical privacy matters.

But we don’t really have to worry about something so simple and beneficial ever happening. Otherwise, lawyers, our legislatures, and congress wouldn’t have all that fun in pushing us into total immobility–into MEDICAL GRIDLOCK.