Is OASIS an invasion of privacy?
Is OASIS an invasion of privacy?
Maybe, government says, but you still have to collect the data
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), bowing to pressure from Congress, suspended the requirement to transmit data on those patients. It also delayed the April 26 start date for transmission of data for Medicare patients, although the data must still be collected.
According to James Pyles, an attorney with the Washington, DC, law firm 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.
Whose business is it?
HCFA is trying to find a way to make the information for non-Medicare patients anonymous through an encryption program. Some estimates say that effort will take about a year. 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 A. Jett, MSN, RN, C, manager of client services, Home Health Plus, in 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.
Some may not seek services
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 Homecare Quality Management, 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."
Find a soapbox and climb on it
With the situation so in flux, what should you be doing? First and foremost, advises Pyles, contact your congressmen and senators, and urge your staff and patients to do the same.
"There is still some time to keep this from going into effect," he says. "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."
Some agencies are also considering filing some sort of legal action, says Pyles, and the American Civil Liberties Union has expressed interest in the issue.
Agencies need to consider their options if non-Medicare patients refuse to answer OASIS questions. In such cases, you are supposed to refuse care, which could bring up issues of abandonment, says Pyles.
"If one condition of participation says you have to do this, and another says you can’t abandon the patient, what condition do you apply?"
Agencies should become activists
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."
Pyles is adamant that agencies should become activists on this issue.
"HCFA is going to base reimbursement on OASIS. If that happens, you will have home health care available only to the healthiest, least sick patients and only a few agencies providing this service," he explains.
"Home health agencies will get out of Medicare or reduce their percentage to the point where it doesn’t make a difference. This is a service that is being eliminated through financial strangulation. Call your congressmen."
Jett agrees that agencies, their staff, and patients need to become activists to change OASIS.
"The implications in terms of client privacy, client rights, and safety are significant," says Jett. "I have been in contact with my professional associations [Missouri Nurses’ Association and the American Nurses Association] regarding this issue, and I encourage everyone to not limit their efforts to home care trade groups. Groups such as ANA have a tremendous presence and clout on Capitol Hill and are valuable allies in the fight."
Sources
• Glen A. Jett, MSN, RN,C, Manager of Client Services, Home Health Plus, 4435 Main St., Suite 100, Kansas City, MO 64111-1825. Telephone: (816) 753-1219.
• James Pyles, Attorney, Powers, Pyles, Sutter & Verville, 1875 Eye St. N.W., Washington, DC 20006. Telephone: (202) 466-6550.
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