State Limits Insurer Access To Psychiatry Records

When Oxford Health Plans began auditing psychiatrists’ patient records last fall, psychiatrists and others raised concerns that patients had not authorized release of their records (see Original article: page 1).

Some psychiatrists asked Oxford for a copy of the signed release from each of their patients involved in the audit and were told that patients authorized release of their medical records when they signed their enrollment form.

“In some cases, Oxford sent the psychiatrists only a sample copy of the enrollment form without the patient’s signature,” said Seth Stein, executive director and general counsel of the New York State Psychiatric Association, in an interview with Psychiatric News.

When at least one psychiatrist refused to comply with Oxford’s request without a signed patient consent form, Oxford filed a complaint with the Office of Professional Medical Conduct (OPMC) of the state’s Department of Health, according to Stein.

Oxford’s chief medical officer, Alan Muney, M.D., told Psychiatric News that one of the issues Oxford is concerned about is quality of care. “Providers who fail to provide us copies of patient medical records could be penalized for misconduct under New York state’s education law,” he said.

The OPMC sided with Oxford and insisted that the psychiatrist turn over the requested medical records to Oxford. The OPMC threatened the psychiatrist with possible disciplinary action under the state’s Education Law § 6530(40), according to the NYPSA’s September 4 E-Bulletin.

In the meantime, Stein wrote a strongly worded letter to the OPMC, urging the office “to confirm in writing that Oxford had no standing under the law and that patient consent is required for release of records,” according to the bulletin.

Although NYSPA never received a direct response from the OPMC, Stein later obtained a copy of a March 24 letter from the state Department of Health to all managed care organizations regarding patient authorization.

A copy obtained by Psychiatric News states, “New York State Education Law § 6530(23) prohibits physicians from disclosing information gained in their professional capacity without prior consent of the patient, except as authorized or required by law.” An exception is data collection by the Department of Health for quality assurance purposes, according to the letter.

The Department of Health also referred to Title 8 of New York Code Rules and Regulations, which prohibits licensed professionals from revealing personal identifying information (data or facts) without a patient’s prior consent, except as authorized by law.

In addition, the Health Insurance Portability and Accountability Act (HIPAA) does not preempt the state law and regulation, because they are more stringent. HIPAA doesn’t require patient consent for disclosures made by a health provider to an external entity such as a managed care company “for the purposes of payment, treatment, or health care operations,” according to the letter.

“Within the past several weeks, Oxford has mailed concerned psychiatrists copies of some patients’ signed enrollment forms. These are the very forms that Oxford initially refused to provide and do include a general consent to release of records to Oxford,” states the E-Bulletin.

Protecting patient confidentiality is another concern psychiatrists have had when Oxford has asked them for copies of their psychotherapy notes.

“Privacy is of the utmost concern to Oxford, especially when there’s sensitive information, including mental health [information]. In our mental health audit, we gave mental health providers the option of blocking out sensitive information.”

However, when a psychiatrist did block out therapy notes at a patient’s request, Oxford responded there was insufficient documentation and disallowed full payment, said Stein.

NYSPA strongly urges members asked by Oxford to release patient records to request a patient authorization, according to Stein.

Staff at NYSPA will answer questions about the Oxford audit at (516) 542-0077. The September 4 and May 2 E-Bulletin contains information about the Oxford audit on the NYSPA Web site at www.nyspsych.org/ under “E-Bulletin” at left. ▪