Gut tmacher Policy Review Fall 2013 | Volume 16 | Number 4 GPR
A New Frontier in the Era of Health Reform: Protecting Confidentiality for Individuals Insured as Dependents
By Rachel Benson Gold
illing and claims processing procedures the way to simple, workable solutions that satisfy widely used in private health insurance the needs of insurers, protect policyholders from routinely, albeit inadvertently, make it im- unexpected financial exposure and, most impor- Bpossible for anyone insured as a depen- tantly, facilitate access to confidential sexual and dent on someone else’s policy to obtain sensitive reproductive health care for all covered individu- services confidentially. One of the most frequent als, including dependents. ways in which disclosure occurs is through expla- nation of benefits (EOB) forms sent by insurers Long-Standing Problem, New Openings to policyholders after anyone covered under their Although a long-standing feature of health insur- policy obtains care. An EOB typically identifies ance in the United States, the practice of send- the individual who received care, the health care ing EOBs to policyholders has enormous and provider and the type of care obtained. It also extremely concerning consequences.2 Privacy includes information on the amount charged for concerns can be important for individuals of both the care, the amount reimbursed by the insurer genders; however, women are more likely than and any remaining financial obligation on the men to be insured as dependents. According to part of the policyholder or patient. The long- the Kaiser Family Foundation, 27% of women of standing practice of sending EOBs essentially reproductive age are insured as a dependent, makes it impossible for dependents—often compared with 20% of men of the same age.3 minors and young adults—to obtain the confi- Moreover, concerns can arise for individuals dential access to sexual and reproductive health in a wide range of marital circumstances, such care they need. as when married individuals seek care under a spouse’s policy, when a couple is separated or Millions of Americans are expected to obtain estranged, or when children of divorced or sepa- health insurance coverage as a result of the rated couples obtain services. Issues may arise Affordable Care Act (ACA), including large num- when coverage is held by a domestic partner. bers of young adults who can now remain cov- And, of course, confidentiality issues frequently ered as dependents under a parent’s policy until come into play when minors or young adults age 26.1 This means that addressing the long- seek care. standing challenge of how to protect dependents’ confidentiality about sensitive health services is Confidentiality may be a factor when individuals becoming increasingly important. are seeking a wide range of care. For example, those seeking substance abuse or mental health Historically, states have had the lead role in regu- services may not want their parents or spouses lating health insurance, including whether and to know that they need such care. This may be to whom insurers must send EOBs. Accordingly, especially true for people who have experienced some creative ideas already are starting to bub- violence perpetrated by a parent or partner. ble up from states. These approaches may lead Individuals who have experienced such violence
2 may forego needed care for fear that their abuser Because they feel unable to use their coverage, may be alerted. teens and other dependents seeking contracep- tive services often turn to publicly funded family Privacy concerns among individuals seeking planning centers to obtain affordable, confi- sexual and reproductive health care may be par- dential care. Nearly one in five insured women ticularly acute—and the potential for harm, con- obtaining care at a family planning center who siderable. For example, someone who foregoes indicated that they were not planning on using or even delays testing and treatment for STIs and their insurance coverage to pay for their care said HIV puts not only himself or herself at risk, but that they were doing so because of confidential- his or her partners as well. Or a pregnant woman ity concerns.5 Not surprisingly, teens—who are who is worried about telling her husband that almost always insured as dependents—were the she is pregnant may delay entry into prenatal age-group most likely to say confidentiality was care, potentially leading to adverse maternal and the reason for not using their coverage: Almost child health outcomes. Indeed, fear of disclosure one-third of insured teens who were not using is likely an important factor explaining why many their coverage cited confidentiality concerns (see women decline to use their insurance coverage chart). Relying on publicly supported family plan- to pay for an abortion. ning centers to offer care with no reimbursement from insurers puts additional burdens on already- Privacy is certainly important when it comes stretched programs such as Title X, as well as on to contraceptive services. In fact, national data the safety-net providers themselves. Moreover, show that many insured teens and young adults it leaves insurers in the enviable position of col- aged 20–24 appear unwilling to use their insur- lecting premiums to cover services for which they ance coverage to pay for their contraceptive care. are not asked to pay. According to a Guttmacher Institute analysis of National Survey of Family Growth data, among Confidentiality concerns about insurance pro- privately insured females who obtained contra- cessing procedures are not new.6 The enactment ceptive services, 82% of teens and 79% of young of the ACA, however, has upped the ante in two adults used their coverage to pay for their care, significant ways. First, by allowing young adults compared with 93% of women 30 or older.4 to remain on their parents’ policies until age 26,
PRIVACY PROBLEMS Teens are far more likely than older women to cite confidentiality as the reason they are not planning to use their insurance coverage to pay for the care they receive at reproductive health–focused health centers.
Under 31% 20
20–29 15%
30 and 4% over
Source: reference 5.
Guttmacher Policy Review | Volume 16, Number 4 | Fall 2013 3 the ACA has already brought new coverage to Although this provision offers critical protection, more than three million young adults.7 By defini- it alone is not sufficient to protect individuals in tion, all of these newly insured young adults are all cases where confidentiality may be needed. covered as dependents and, therefore, subject to For example, it only applies when services are these confidentiality barriers. Beyond that, the obtained from a provider that has a contract with ACA’s broader coverage expansions will grow the the individual’s health plan; services obtained ranks of Americans who have insurance cover- from out-of-network providers may be subject age. Many of these newly insured individuals to cost-sharing. In addition, insurers still have will be covered as dependents through a parent, some, albeit more limited, opportunities to re- spouse or domestic partner and, thus, potentially quire cost-sharing for some formulations of some unable to obtain services confidentially. contraceptive methods (related article, page 8). Finally, cost-sharing may be required when Although the ACA’s expansion of contraceptive follow-up care—such as treatment for an STI—is and other reproductive health coverage means obtained. In those instances, not only may cost- that the confidentiality problem is about to affect sharing be required, but the amount paid out-of- more people than ever before, the law’s prohibi- pocket would be credited toward any deductible tion against cost-sharing for certain preventive required under the policy. care services seems to offer a major opening to address the problem, at least in some critical Innovation in the States respects. One function of EOBs is to alert poli- Because EOBs are an important tool in pre- cyholders when they may have some financial venting fraud and abuse in health insurance liability for costs relating to care obtained by coverage, about half the states either require dependents. But the ACA’s preventive services or presume that these documents will be sent requirement provides for coverage of a package whenever care is obtained.9 Although virtually all of key sexual and reproductive health services— states require notices when claims are denied, including contraception, STI and HIV testing, and these requirements differ in the extent to which prenatal care—with no out-of-pocket costs (see they specify to whom these denials must be table).8 As a result, the policyholder will have sent—with some, for example, specifying that no financial exposure in many circumstances, the insured be notified and with others indicat- thereby making moot an important underlying ing that either the enrollee or the claimant be rationale for the practice of sending EOBs. informed instead.
COVERAGE WITHOUT COST-SHARING
WOMEN’S SEXUAL AND ADDITIONAL MEN’S SEXUAL HEALTH REPRODUCTIVE HEALTH WOMEN’S HEALTH CARE
• Contraceptive counseling, services and • Well-women visits • HIV and STI counseling methods (as prescribed for women) • Domestic and interpersonal violence • STI testing (HIV, chlamydia, gonorrhea, • Numerous perinatal health services screening and counseling syphilis) • HIV and STI counseling • Breast cancer prevention (mammography, • Hepatitis A and B vaccination genetic screening and counseling, • STI testing (HIV, chlamydia, gonorrhea, and chemoprevention counseling) syphilis) • Cervical cancer screening (Pap testing and HPV testing) • HPV vaccination • Hepatitis A and B vaccination
Notes: This table lists sexual and reproductive health–related preventive care services that must be covered by most private health plans without patient cost-sharing. The requirement to cover some of these services is limited by patient characteristics and risk factors, in accordance with expert recommenda- tions. Source: reference 8.
4 Fall 2013 | Volume 16, Number 4 | Guttmacher Policy Review Spurred by both the challenges and opportunities under the law. For their part, the state’s health created by the ACA, advocates in several states plans have indicated that they want to work with have been working to devise innovative solu- the coalition to make implementation as smooth tions. In California, a state in which the ACA had as possible. already brought dependent coverage to more than 400,000 young adults by August 2013,10 Even more recently, the Colorado Division of advocates initiated consultations with a broad Insurance issued rules requiring health plans to range of stakeholders—including health care protect health information for adults (whether providers, health plans and policymakers—more children, spouses or domestic partners) who are than a year ago. According to organizers, the covered as dependents. The rule requires plans plans made it clear from the beginning that they to develop a way to communicate directly with were sympathetic to issues around confidential- the dependent so that information would not be ity. After working with the organizers on amend- sent to the policyholder without the dependent’s ments to ensure workability and the ability of consent. health plans to comply with existing federal law, the critically important Association of California Advocates in Massachusetts are also working Life and Health Insurance Companies declared to address the issue, looking to a regulatory itself as neutral on the legislation.11 Gov. Jerry approach that would provide automatic protec- Brown (D) signed a measure, known as the tions in some cases by, for example, narrowing Confidential Health Information Act, into law in the scope of services for which EOBs are sent; early October. it would also provide enrollees with options in other cases, such as requesting that EOBs not The California approach builds on long-standing be sent, or that they be sent to the individual federal protections in the Health Insurance who obtained the care rather than to the policy- Portability and Accountability Act (HIPAA) and the holder. The Massachusetts advocates are looking subsequent regulations, known as the Privacy to leverage an opportunity created when the Rule, which allow individuals to submit confiden- legislature recently directed the state Division tial communications requests when disclosure of Insurance to develop a standard “summary could endanger the person obtaining care. The of payments” form that will essentially replace new California law requires plans to honor those EOBs in the state. A group that includes the requests from individuals obtaining sensitive ser- Massachusetts Women’s Health Coalition and vices such as contraception, abortion, pregnancy- the Massachusetts Family Planning Association related care, STI services and mental health ser- has petitioned the agency to ensure that any vices or when the request states that disclosure guidance or regulations include confidentiality could lead to harm. The law prohibits plans from protections. In part, they are seeking to build on conditioning acceptance on an explanation for the current practices of Blue Cross Blue Shield the reasons behind the request. of Massachusetts, the largest insurance carrier in the state. The insurer is transitioning to providing With the legislation signed into law, the three all EOBs directly to members rather than poli- groups that cosponsored the effort—the cyholders. In the meantime, it only sends EOBs California Family Health Council (CFHC, the when there is a balance due on the claim beyond Title X grantee for the state of California), the whatever copayment was paid at the time of ser- American Civil Liberties Union of Northern vice. (This is not an entirely new approach: Two California and the National Center for Youth other states, New York and Wisconsin, offer at Law—are embarking on a major consumer and least some protection in cases where there is no provider education drive. The campaign seeks balance due from the policyholder after the pa- to ensure that health care providers are aware tient has paid any applicable copayments.9) of the new protections, so they can alert their patients. The coalition will also be taking steps This approach has particular salience because to educate consumers directly about their rights of the ACA’s bar on cost-sharing for key preven-
Guttmacher Policy Review | Volume 16, Number 4 | Fall 2013 5 tive care. Suppressing EOBs when there is no public knowledge that the protections even exist financial exposure for the policyholder would has meant that very few individuals have availed effectively mean that EOBs would not be sent themselves of their rights. As a result, insurance when an individual obtains any of the services regulators in the state are now discussing po- covered under that provision. For services such tential additional safeguards with advocates and as treatment of STIs not under the purview of the health care providers. And this experience has preventive services requirement or for services spurred the extensive patient and provider edu- obtained from an out-of-network provider, EOBs cation effort planned in California. would still be suppressed as long as the patient had paid any required cost-sharing in full, again The second lesson for supporters of access to leaving the policyholder with no financial liability. sensitive services is to examine carefully the opportunities, and limitations, presented by the Although such an approach would have a wide ACA’s preventive services requirement. The steps reach and provide protection for many accessing being proposed in Massachusetts to suppress key reproductive health services, it would not EOBs when there is no financial exposure for the prevent all confidentiality breaches. When care policyholder demonstrate the potential impor- is outside the purview of the requirement and tance of that provision in protecting confidential- cost-sharing is necessary, an additional hurdle is ity, at least for that limited package of services. posed by plans that require enrollees to satisfy By taking cost-sharing off the table for a critical a deductible before benefits kick in. In that case, package of care, that provision effectively re- the issue would be how to credit the cost of the moves one of the rationales frequently given for care toward the deductible without resulting in EOBs while at the same time allowing safety-net the policyholder’s de facto notification. The coali- providers to more confidently bill for the sensi- tion in the state is working hard to find creative tive services they provide. approaches to providing protection in these ad- ditional circumstances. The fact that the ACA provides for a set of pre- ventive services to be covered without co-pays Paths to Future Progress does not, by itself, clear the path forward, how- Experiences in California, Colorado and ever. The legal protections apply only to a limited Massachusetts have important lessons for advo- set of services received from in-network provid- cates, policymakers and reproductive health pro- ers. Furthermore, cost-sharing imposed when viders in other states seeking to establish policies services are provided outside the purview of to protect the privacy of individuals insured as that protection could raise the additional issue dependents. This would include building broad- of being counted against any deductible that is based coalitions of support and, most impor- required under an individual’s policy. Because tantly, addressing the concerns of health plans up of the heightened salience of being in-network, front. At the same time, cautionary tales are also safety-net providers need to redouble their efforts emerging as more states contemplate proceeding to secure plan contracts; doing so will give their down this path. clients the legal protections from cost-sharing and ensure that the family planning centers are One lesson learned from the experience in the reimbursed for the care they offer. Family plan- state of Washington points to the importance ning providers—and especially those operated of raising awareness and knowledge among by health departments—have a long way to go in health care providers and within the general this regard.12 public in a state where dependents do have op- tions to protect their confidentiality even now. In Finally, although states such as California are Washington, individuals have long been able to important laboratories for innovation, this is a na- ask that EOBs be suppressed in some cases.9 But tional problem requiring a national response. All the combination of each insurer having its own individuals insured as dependents deserve the procedures for making the request and a lack of right to receive sensitive health care—and cover-
6 Fall 2013 | Volume 16, Number 4 | Guttmacher Policy Review age for it—confidentially. Although it is certainly REFERENCES true that insurance regulation has traditionally 1. Congressional Budget Office,Estimates for the Insurance Coverage Provisions of the Affordable Care Act Updated for the Recent Supreme been within the purview of the states, rather than Court Decision, July 2012,
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