Privacy Bills in the House, a First Look: Tracy Kraft-Tharp Wants Government Access to Mental Health Records Without Patient Consent

by Eileen | 8:25 am, January 21, 2013 | Comments Off

WHAT: HB 13-1015, Disclosing Mental Health Claims to the All-Payer Database

WHO: Rep. Tracy Kraft-Tharp (D-29), Sens. Irene Aguilar (D-32) and John Kefalas (D-14)

WHY: Because politicians are all cheerleaders gunning for Prom Queen – they measure their self-worth by what they know about other people.

No, seriously. Why?  Colorado has a lovely little thing known as the all-payer database, to which insurers, even the private ones, are legally mandated to disclose data about the medical history and claims of participants.  You may blame the participants of the 2010 session for that one.  In theory, the data are transmitted using encryption and the publicly available results are deidentifed aggregates.  In practice, encryption works beautifully only when it’s used properly and truly deidentifying data is insanely difficult.  Cutting edge statistics, fast computers, and the availability of massive datasets make it frighteningly easy to connect a person to her data. When that data is highly sensitive information about mental health care, you’ve got trouble.

Until now, small plans have been exempted from providing information about the mental health diagnoses and treatment of plan participants.  Of course, no good public servant will tolerate a double standard whereby some enjoy more civil rights than others.  Which is why freshman Tracy Kraft-Tharp thinks everyone should endure the same lack of basic medical privacy.

She wants a law allowing plans to hand over to the state any information a participant discloses about past mental health treatment in his application for coverage along with any data about diagnosis, treatment, and claims related to mental health.  And, naturally, if she gets her way, this will be done without your consent.

Does she have an even remotely decent reason for this?  Not unless giving the state “comprehensive” data is a good reason to diminish privacy.  I guess Rep. Kraft-Tharp is a completist; she’s just got to have all the info about everybody.  It’s an end in itself.  Rather like taking a child to the toystore and then dealing with that child’s insistence that life isn’t worth living until she has all 4,976 different outfits available for whatever anatomically improbable dolly she’s carting around these days.  Only that would be a less expensive and less dehumanizing proposition than actually being legally compelled to pay to give up your own privacy.

Can we say something nice about this dingbat or should we just apply for the civil commitment now?  OK, by way of mitigation, she was a counselor at a juvenile detention center before she was a legislator.  Great, she has experience dealing with unruly brats.  But, to turn serious, people who have spent a career dealing with thugs and profoundly sick people lose perspective.  They want to treat us all like we’re sick.  That explains why Tracy Kraft-Tharp has tunnel vision.  And legislators are supposed to consider the big picture.  Hell, adults are supposed to be able to step outside their own narrow experience and take other people into account.  So, no, we’re not going to say anything nice about her.  This is a monstrous bill and she doesn’t deserve her office if she doesn’t know better than to put this garbage before us.

Any chance of passing it?  God, let’s hope not.  HB 1015 is awaiting a first vote in Health, Insurance, and Environment, controlled 6-4 by Democrats.  Even without the party-line thing, it’s not like either side is a big fan of privacy.  Politicians don’t like citizens privacy because information the state has about citizens is power over those citizens.  There’s nothing partisan about that.  If Democrats are stealing your diary, Republicans are applying tickle-torture to get the location of the key.

There are already two sponsors on the Senate, one of whom is a physician.  Whether Sen. Aguilar, M.D. will throw around her medical authority to pass a bill that’s much more about privacy than healthcare quality remains to be seen.  Any outcry will likely get shushed with the usual resorts to the need for ‘comprehensive’ data, though no one ever does the favor of telling the voters precisely why having that kind of data needs to be in state hands at all.  It’s one of those answers that says nothing but is treated like the final word.  If that doesn’t shut people up, there’s the manipulative non sequitor of pointing out that recent spree killers were either in therapy or in grave need of it – as if that’s got one thing to do with the actual principle of privacy in medical data.  Follow that up with lip service about being ever mindful of privacy and civil liberties, and we’re all down for the count.

The bill pours on just such patronizing blather, backgrounding us as follows:

…the all-payer health claims database[facilitates] the reporting of health care and health quality data to enable transparency
and public reporting of safety, quality, cost, and efficiency information at all levels of health care while also ensuring the privacy and security of personal health information as required by the federal “Health Insurance  Portability and Accountability Act of 1996″ and state law…”

Right off the bat, HIPPA is not and never was a patient privacy bill.  It’s a list of the way insurers and care providers can play loose with your data.  HIPPA protects your privacy as a patient tangentially and incidentally, at best.  It’s also a toothless old hag; HHS and the Justice Department don’t do more than rattle sabers over HIPPA violations.  As for state law, this bill is trying to void a state law that DOES protect medical privacy.

Or, as a woman rapidly becoming one of my least favorite legislators put it, “…It is therefore imperative that the state remove this unintended
barrier to claims data reporting…”  Ah, yes, because the existing statute that specfically places the right to disclose highly personal information with the person to whom the information pertains was “unintended.”  It’s a worrying game Tracy Kraft-Tharp is playing here.  She’s painting a law written for a reason as being a silly mistake, leading a casual reader to think there are no issues to consider in overturning it.  And she knows exactly what she’s doing.

Rep. Kraft-Tharp is attempting a sleazy end run around the existing privilege, as she isn’t asking therapists to turn over data on their patients.  Instead, she wants it from the insurers.  There may be a conflict with existing federal regulations.  The Privacy Rule, enforced by Health and Human Services since 2003, holds that any insurance policy where the applicant has to agree to disclose psychotherapy notes in order to get the policy, is illegal.  HB 1015 may weasel around that by taking everything but the actual session notes, by carving out an exception, trying to pretend that there is a meaningful difference between your insurer demanding snooping privileges and the state just taking liberties, or by a resort to chintzy sophistry, arguing that availability of treatment isn’t ‘being conditioned on’ giving up privacy.

But it is.  It’s the predictable outcome of the action HB 1015 wants to take.  Knowing they can’t expect privacy, people won’t seek mental help or will pay for it privately.  That’s money insurers aren’t paying to settle claims and, indeed, insurers and their lobbyists have long been seeking the right to demand data about mental health status from policyholders.  In 2001, when the Privacy Rule went through and received George Bush’s sign-off, they were screaming bloody murder.

Under this proposal, the state wins.  They get data that’s useful to them and further the precedent that citizens should expect no privacy from their government.  Large insurers win.  Smaller competitors currently have one advantage in that they can tell privacy conscious applicants any mental health information won’t be handed over to the state.  Citizens lose.

Let’s see where it goes.  Until then, PPC’s recommends that you avoid taking therapy with anyone who may be compelled to turn over all your secrets.  Instead, self-medicate with a martini.

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