Lawyers say OASIS is an invasion of patients’ privacy
A Healthcare InfoTech Staff Report
The battleground around OASIS now has another front, as the struggle leans toward issues of privacy invasion for non-Medicare patients. The Health Care Financing Administration (HCFA; Baltimore) is trying to find a way to make the information for non-Medicare patients anonymous through an encryption program. Some estimates say, however, that this effort could take about a year.
According to James Pyles, an attorney with the Washington law firm of Powers, Pyles, Sutter & Verville, there is evidence that the OASIS requirement, as it stands, violates federal law. In March, the American Psychoanalytic Association received word from HCFA that the government had no right to access the mental health records of non-Medicare patients.
"Federal and state law prohibits that. That means that HCFA knows that part of its requirements violate state and federal law," Pyles says.
But even then, says Pyles, there is a question about whether collecting data on non-Medicare patients is a violation of privacy, and whether it is relevant to health care.
Glen Jett, manager of client services at Home Health Plus (Kansas City, MO), agrees. He calls OASIS "an unnecessary and ill-defined intrusion and serves little or no purpose for the majority of our private-pay clients," he says. "OASIS was designed to capture information related to episodic, intermittent, acute care, and has very little relevance to private pay, private duty, maintenance clients."
Jett notes that two long-term, private-pay, private- duty clients at his agency have already objected to OASIS, both for the length of time the questioning took and also for the invasion of privacy they felt it allowed. In both cases, he told staff to note the objections in writing and continue with the agency’s comprehensive assessment.
Pyles, in a submission to the Senate Finance Committee, told of a non-Medicare HMO patient who will only contract with Medicare-certified home health agencies. She expressed concern that if she refused to answer OASIS questions she might be refused care by the only agency her HMO had approved her to use.
But even for Medicare patients, says Pyles, there is a question as to whether all such patients need to give all of the OASIS information. "If a patient only needs a single dressing change, why does the government need to know if that patient has been depressed recently?" he asks.
In his Senate submission, Pyles wrote: "Home health agencies under Medicare have only been required to record information related to the specific service provided, and even then to only record that information in the patient’s clinical record and plan of care . . . There is no statutory authority or requirement for home health agencies to perform comprehensive assessments of the patient's health status."
There is concern in the home health industry, Pyles tells Healthcare InfoTech, that if patients come to know they will be asked these prying questions, and that this information will be reported to the government, they will either not seek services or won’t make the disclosure.
"That means agencies can't make an accurate diagnosis of the patient and eliminates the effectiveness of mental health care."
With the situation so in flux, what should home health agencies be doing? First and foremost, advises Pyles, contact their congressmen and senators, and urge their staff and patients to do the same.
"There is still some time to keep this from going into effect," he says, indicating that the policy can still be headed off. "The Senate Finance Committee and House Ways and Means Committee are very concerned about this and are looking for HCFA to come up with an alternative."
And Pyles said that the American Civil Liberties Union has expressed interest in the issue.
The good news, Pyles says, is that HCFA has told Pyles’ law firm that it would be lenient with agencies that do not comply with the requirement initially. "If your patients object to this, or won’t provide the information, and you still think you can provide safe and effective care, do it," he suggests. "And explain that you were trying to honor the patient’s right to privacy and comply with conditions of participation."
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