Washington Watch
Lawmakers step in to protect confidentiality
By Adam Sonfield
Senior Public Policy Associate, Guttmacher Institute, Washington, DC
One problem that policymakers are confronting as they implement the Affordable Care Act (ACA) is that even if people gain health insurance coverage, they might not always be willing to use it.
In many cases, persons might be concerned that if they use their insurance, someone else in their families, such as a parent or a spouse, will learn about it. This can happen through routine billing and claims processing procedures, most notably the explanation of benefits (EOB) forms that private insurers send to policyholders when care is obtained by someone covered under a policy.1 These EOBs typically identify who received care, from whom, and of what type, as well as the amount charged, the portion reimbursed by the insurer, and any amount still unpaid. The forms are designed to prevent fraud and to ensure that policyholders are aware of their financial responsibilities, but they also inadvertently interfere with confidentiality for insured dependents.2
Confidential care might be needed by adolescents and young adults, as well as spouses and domestic partners who are separated or estranged, in abusive relationships, or otherwise in need of privacy. Confidentiality is needed for a wide range of healthcare services, from mental health care and substance abuse treatment to reproductive healthcare, including contraception, abortion, sexually transmitted infection (STI) testing and treatment, and pregnancy-related care. Indeed, people often seek out subsidized care at publicly supported family planning centers in lieu of using their insurance: Among insured clients who did not plan to use their insurance to pay for their care, 18%, including 31% of teens, cited confidentiality concerns as the reason.3
The extent of these confidentiality problems for dependents is growing under the ACA. The law requires private plans to allow young adults to stay on their parents’ plans as dependents through age 26, and millions of Americans have gained coverage through this provision.4 Moreover, the law’s broader expansions to private coverage in 2014, through the new marketplaces and federal subsidies, should result in millions more gaining coverage as dependents.
Policymakers have been exploring multiple solutions for these confidentiality problems, according to Rachel Benson Gold, acting vice president for public policy in the Washington, DC, office of the New York City-based Guttmacher Institute.5
One option under consideration is to allow people insured as dependents to request that EOBs and similar information not be sent to the policyholder. Depending on how the system is designed, a dependent might make that request for specific services or all services and might provide an alternative address so that she, instead of the policyholder, receives necessary information.
California enacted a law in October 2013 along these lines that requires insurers to grant dependents’ requests for confidentiality when they obtain sensitive services, without requiring them to provide documentation of the potential harm they might experience. This law builds on protections under the federal Health Insurance Portability and Accountability Act (HIPAA), which requires confidentiality protections when disclosure could endanger the individual receiving care. Other states have enacted similar requirements in prior years, but the laws have been poorly publicized and rarely used. One lesson that advocates in California have learned is that healthcare providers and patients need to be educated about this option and how to exercise it. In November 2013, the Colorado Division of Insurance issued rules requiring health plans to protect the health information of adults (whether children, spouses, or domestic partners) who are covered as dependents. The rules require plans to develop a way to communicate directly with the dependent so that information would not be sent to the policyholder without the dependent’s consent.
A second option for policymakers is to eliminate EOBs automatically whenever there is no financial liability for the policyholder — for example, when no cost-sharing is required. The ACA has increased the number of such situations. Specifically, it requires most private health plans to cover a wide range of preventive care services without any copayments, deductibles, or other out-of-pocket costs for the patient. That list includes contraceptive methods and services, testing for HIV and other STIs, cervical cancer testing and vaccination, and prenatal care.
Policymakers and healthcare advocates in Massachusetts are exploring options to eliminate EOBs in these circumstances. They are taking advantage of an opportunity created when the state legislature directed insurance regulators to develop a standard "summary of payments" form to replace EOBs in the state. This change would not solve all confidentiality problems for dependents, however. The federal cost-sharing protections do not apply to all sensitive services (for example, STI treatment) nor in all circumstances (for example, when care is received from an out-of-network provider). In those cases, an EOB still could be eliminated if the cost-sharing is paid in full at the time of the service, but not if that cost-sharing counts toward a policy’s deductible, because policyholders must be able to keep track of their progress toward the deductible.
Other states can be expected to explore these and additional options in the coming years. State-level efforts, moreover, might pave the way for Congress or the U.S. Department of Health and Human Services to adopt a nationwide solution. Numerous national organization have demanded this move, including the American Academy of Pediatrics, the American Congress of Obstetricians and Gynecologists, the Center for Adolescent Health & the Law, the Society for Adolescent Health and Medicine, and my organization, the Guttmacher Institute.
- Gold RB. Unintended consequences: how insurance processes inadvertently abrogate patient confidentiality. Guttmacher Policy Review 2009; 12(4):12-16.
- English A, Gold RB, Nash E, et al. Confidentiality for Individuals Insured as Dependents: A Review of State Laws and Policies. New York: Guttmacher Institute; 2012. Accessed at http://bit.ly/Vde9q9.
- Frost JJ, Gold RB, Bucek A, Specialized family planning clinics in the United States: Why women choose them and their role in meeting women’s health care needs. Women’s Health Issues 2012; 22(6):e519-e525.
- Sommers BD. Number of young adults gaining insurance due to the Affordable Care Act now tops 3 million. ASPE Issue Brief 2012; accessed at http://1.usa.gov/1gZscwY.
- Gold RB. A new frontier in the era of health reform: protecting confidentiality for individuals insured as dependents. Guttmacher Policy Review 2013;16(4)2-7. n
