The new confidentiality for the 21st century in a managed care environment.
Managed care is also the focus of increasing public attention. A recent search on the Internet yielded more than 60, 000 entries on this topic. Although many report abuses under managed care related to denial or curtailment of benefits, others focus on threats to privacy and confidentiality.
In the age of computers, the Internet, e-mail, and the electronic record, it is necessary for social workers and other human services, health, and mental health professionals to rethink and revise principles of confidentiality, especially in the context of managed care. The revisions may involve creating more stringent standards for protecting the confidentiality of the most sensitive data, which have the potential for serious damage to clients; and having more liberal policies for data that have the least potential for damage.
Although not widely acknowledged by public services agencies or clients themselves, health care and other client information belongs to the client. Only the client controls the privilege to confidential information, not the provider or agency. (Vandecreek, Knapp, & Herzog, 1988). Clients' access to their records is established by federal law as well as included in the NASW Code of Ethics (1996). Yet clients often are uninformed about their rights to retain confidentiality over information about themselves. Fears about maintaining privacy may lead a client to pay for treatment out of pocket rather than through a managed care plan. It should be noted, however, that this option is not available for poor clients who do not have any additional financial resources.
Is confidentiality possible in a world of advanced technology and managed care? A recent conference presentation entitled, "The Death of Confidentiality," addressed the end of the confidentiality as we have known it (Congress, 1997a). Social work teachers once advised students not to talk about clients in elevators or go to lunch leaving case records opened on their desks. Now they must instruct students to have clients sign three-page forms about the limits of confidentiality with managed care companies and to protect electronic client records through passwords. This article focuses on the new confidentiality for the 21st century, especially in regard to managed care and technology.
The following case vignette highlights some of the problems and dilemmas of social work confidentiality in the electronic age.
Debbie, a social worker in an outpatient mental health agency is updating an intake summary on a computer terminal. The agency computers are networked to a file server in the agency's administrative office. All the computers are maintained by the Network Administrator, who is also in charge of billing for client services.
While Debbie is working on this document, she inadvertently "signs" the note and exits the program. For Debbie to return to the document to complete her work, she must ask the Network Administrator to "unsign" the document.
While Debbie is at lunch, she misses a telephone call from another social worker from a different agency. The social worker reaches Debbie's voice mail, on which he leaves a detailed message about a client that has been expelled from a day treatment program. The social worker also informs Debbie that the client's expulsion papers will be faxed over immediately. (The authors thank Linda Stern for contributing this case vignette.)
Confidentiality has long been considered a basic tenet of social work practice. In a classic work on social work practice, Biestek (1957) listed confidentiality as an essential principle in a helping relationship, which he defines as "the preservation of secret information concerning the client which is disclosed in the professional relationship" (p. 121). Confidentiality has been seen as crucial in developing a trusting relationship with the client (Abramson, 1990) and a necessary fiduciary responsibility to clients (Kutchins, 1991).
For many years, however, it has been noted that social workers could promise to clients only relative - not absolute - confidentiality (Wilson, 1978). There are times that a social worker needs to violate confidentiality because of the need to protect the client or another. The NASW Code of Ethics now specifies the circumstances under which a social worker can violate confidentiality (that is, when it is necessary to protect oneself or others and laws and regulation require it). The duty to warn and protect third parties was established by the much publicized Tarasoff v. Regents of the University of California case (Kopels & Kagle, 1993). The University of California was sued for the failure of one of its employees, a therapist, to warn an intended victim, Tatiana Taraoff, about the homicidal threats made by her estranged boyfriend. The Tarasoff case established an important precedent for professionals to breach confidentiality when there is the risk of life-threatening harm to another person (Congress, 1999).
Although state statutes may differ in terms of the duty to warn, Reamer (1998) cited four conditions necessary to permit disclosure of confidential information:
1. There should be evidence that the client presents a threat of violence to another.
2. The violent act must be foreseeable.
3. The violent act is impending.
4. The social worker must be able to identify a potential victim.
Most social work literature has focused on individual work with clients, not groups or families (Dolgoff & Skolnik, 1992). In 1996 for the first time the NASW Code of Ethics included a provision about confidentiality with regard to group or family work. Some courts have ruled that group therapy implies confidentiality and thus communications should be kept private (Reamer, 1994), but social workers should become familiar with their own state laws about confidentiality, especially with regard to group and family therapy (Vandecreek et al., 1988).
Social workers' ethical responsibilities and legal obligations are often similar (Davidson & Davidson, 1996), and confidentiality has been cited as a primary legal obligation for social workers (Cournoyer, 1996). The federal Privacy Act of 1974 (P.L. 93-579) sets an important legal foundation for confidentiality by delineating principles for agencies regarding the handling of records and safeguarding of confidentiality (Wilson, 1978).
Although the NASW Code of Ethics and social work practice have moved toward recognizing relative confidentiality, the Supreme Court in an important decision in 1996 reinforced the principle of absolute confidentiality by supporting privileged communication for social workers (Greenhouse, 1996). Although the Supreme Court recognized confidentiality in the social worker-client relationship, state laws may differ in regard to which part of court testimony and under what circumstances confidentiality is protected. More recently in 1996 the Supreme Court affirmed confidential privilege between licensed clinical social worker and patient ("Justices Recognize Confidential Privilege between Therapist and Patient," 1996).
Clients have a legal right to confidentiality based on the individual's right to privacy and several case decisions have supported this right (Griswold v. Connecticut, 1965; Roe v. Wade, 1973; Whalen v. Roe, 1977). The only exceptions have been when another person is at risk; then the duty to warn takes precedence over a client's right to confidentiality as in Tarasoff (1976). Although state laws may differ in terms of the duty to warn precedent, a decision in California (Menendez v. Superior Court, 1992) supports the client's right to confidentiality, if the disclosure was made by the client with the belief that it would be kept confidential. This serves to mitigate the effect of the Tarasoff decision.
Although there has been no case law that specifically addresses confidentiality and managed care (Corcoran & Winslade, 1994), the Menendez decision could be interpreted to include a client served in a managed care system. Although there is a disclosure to a third party (the managed care company), the client still has an expectation that confidentiality will be preserved (Corcoran & Vandiver, 1996). It is important that social workers be aware of changing case laws regarding confidentiality, as the breach of confidentiality often has been a source of lawsuit against social workers (Besharov & Besharov, 1987).
State laws support or supplant confidentiality for certain populations. All 50 states have laws that mandate the reporting of child abuse and neglect (Lowenberg & Dolgoff, 1992). Social workers are required to breach confidentiality to protect the well-being of the child. Some states support the duty to warn established by the Tarasoff decision by requiring the violation of confidentiality in cases of life-threatening behavior toward others (Reamer, 1994). Until the 1996 mandated reporting of HIV/AIDS newborns, New York had a very stringent law protecting the confidentiality of people with HIV/AIDS.
NASW Code of Ethics
Since the first NASW Code of Ethics in 1960, social workers have been advised to protect confidentiality. The NASW Insurance Trust, which handles cases of alleged ethical violations, however, reported that from 1969 to 1990 breach of confidentiality was the third most frequent type of alleged violations. The NASW Insurance Trust reported 55 cases of breach of confidentiality that led to decisions against social workers, but the incidence of unreported or unadjudicated cases of confidentiality breaches may be much higher (Reamer, 1994).
The most recent NASW Code of Ethics, which took effect January 1, 1997, states that "a social worker should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons" (p. 10), which are defined as "when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client . . . or when laws or regulations require disclosure" (NASW, 1996, p. 10). For the first time the Code of Ethics indicates that "social workers should take precautions to ensure and maintain the confidentiality of information transmitted . . . through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology" (NASW, 1996, p. 12).
The new Code of Ethics does not specifically address managed care. However, a recent survey of social workers concerning the new Code indicated that most social workers erroneously thought that ethical challenges and managed care were included (Congress, 1997b). The only reference to managed care and confidentiality in the new Code is "social workers should not disclose confidential information to third party payers unless clients have authorized such disclosure" (NASW, 1996, p. 12). The 1993 NASW Delegate Assembly, however, issued a policy statement on managed care that refers to "clearly maintained safeguards for confidentiality, including issues of computer technology" (NASW, 1994, p. 172).
Confidentiality and Managed Care
General Professional Issues
Professionals have raised many concerns about challenges to confidentiality, in a managed care environment. In The New Informants: The Betrayal of Confidentiality in Psychotherapy and Psychoanalysis, Bollas and Sundelson (1995) suggested that "the single deadliest blow to confidentiality by all mental health professionals, whether analyst or therapist, activist or quietist is their collusion with managed care" (p. 130). Others also have questioned whether confidentiality is possible in a managed care environment (Corcoran & Winslade, 1994; Lazortiz, 1994; Newman, & Bricklin, 1991; Simon, 1994). Recently a New York City Chapter NASW conference was entitled, "Social Work Ethics and Managed Care: Odd Bedfellows." Social workers are usually advised to inform their clients from the very beginning that there will be no confidentiality, because when a managed care company is involved, as many as 17 people may know about the client's treatment (Munson, 1996).
Managed care companies eavesdrop on treatment when they need to know why a person is seeking treatment, the type of treatment provided, as well as the content of treatment. It is standard practice in contractual agreements between managed care organizations and providers to have a "boiler plate" clause requiring that the managed care organization have access to all records and details of treatment. The burden of obtaining the required patient consent is usually placed entirely on the provider of care. The knowledge that this information is readily available may prevent some people from pursuing treatment at all and thus contribute to human suffering and decreased productivity (Corcoran & Winslade, 1994).
Concerns about managed care companies has led many states to adopt a "Client Bill of Rights," and currently the federal government is considering a national Bill of Rights for those covered under managed care plans (Academy for Healthcare Management, 1999; Pear, 1998) In the proposed bill there is a requirement that managed care companies establish procedures to safeguard the privacy of client information. An earlier plan to issue every. American a health care ID number had been dropped as too invasive of client privacy.
Social Work Literature
A review of social work literature indicates that social workers have frequently written on confidentiality issues in general (150 articles), but less often on confidentiality and managed care (Davidson & Davidson, 1995, 1996; Munson, 1996). In an article on managed care and ethics, confidentiality is not included as an issue (Reamer, 1997). There has been little social work research on the impact of managed care with the notable exception of the recently launched large-scale Critical Incident Survey (NASW, New York City Chapter, 1999), which has begun to collect data on health and mental health care under Medicaid, Medicare, and commercial managed care plans.
Clients may believe that only one person (the social worker) or at worse two (the social worker and an evaluator in the managed care company) has access to their treatment information. There are continued concerns about legal liability. One clinician routinely has clients sign a three-page, single-spaced document about the limits of confidentiality, and a recent book includes over a dozen sample confidentiality forms to use with clients (Houston-Vega & Nuehring, 1997).
Confidentiality and Technology
In addition to the requirements of managed care companies for shared information, their reliance on technology for immediate transmission of information threatens confidentiality. Telephone reviews, facsimile transmissions, voice-mail reports, and computerized databases used by managed care companies all seriously compromise the guarantee of confidentiality (Davidson & Davidson, 1996). Even when the client consents to have records forwarded to managed care companies, the client may have little understanding of possible consequences. Although electronic transmission of data may promote greater accuracy, distortion in meaning may be very damaging to the client (Davidson & Davidson, 1995).
Two decades ago the author of the only social work text devoted exclusively to confidentiality, raised concerns that there was "some genuine cause for alarm" because of the growing use of computerized data storage (Wilson, 1978, p. 43).
Other early literature also has reflected negative attitudes and resistance on the part of social workers toward embracing computer technology as an integral component of practice (Barnes, 1984; Doelker & Lynette, 1988; Nurius, Hooyman, & Nicoll, 1988; Perry, 1986; Zuboff, 1983). Prominent among the reasons for resistance and negative attitudes are serious concerns about ethics - security, privacy, and confidentiality (Cwikel & Cnaan, 1991; Finn, 1990; Pardeck, 1987; Reamer, 1986). Yet others have expressed the idea that, with necessary and appropriate security and ethical safeguards, computers have the potential to amplify human qualities and to empower practitioners and clients (Reamer, 1986; Rock, Auerbach, Kaminsky, & Goldstein, 1993).
Despite the prevalence of computers, current literature on confidentiality and technology is limited (Cnaan & Parsloe, 1989; Cwikel & Cnaan, 1991; Krauss & Pillsbury, 1994; Munson, 1996). Although confidentiality is frequently discussed, confidentiality in relation to technology is minimally addressed (Reamer, 1998).
Although the Encyclopedia of Social Work does not include confidentiality challenges in the section on managed care (Edinburg & Cottler, 1995), it does focus on computer utilization and the need for controlled access and confidentiality, describing five levels of security (Butterfield, 1995). The first level of security is described as control over who can operate the computer through passwords; the second level, control over the use of individual programs on the computer, including the operating system; the third level, control over access to changing or adding specific data; the fourth involves a means of removing a computer hard disk and locking it in a secure place; and the fifth involves data encryption used by government agencies when a high degree of security is required. Although the importance of maintaining the first three levels in social services agencies is acknowledged, some authors concede that such security may not actually occur (Butterfield, 1995).
In the early days of computers, data was stored primarily on one computer unit or a floppy disc; now computers and printers often are networked both within and between agencies to provide for the maximum transmission of information, while minimizing costs. There is no longer one case record, but in reality the case record sits on every worker's desk. A major question arises as to who has access to read or enter data. Usually decisions are made in terms of workers' titles and responsibilities, but because these functions constantly change there is need for continual monitoring. Network security has been an area of major concern both within and outside of social work. Most social services agencies rely primarily on passwords for access to the reading and entering of data. The Internet cites multiple listings on this topic, and a recent issue of PC Computing ("Firewalls Are Born," 1997) focused on the use of firewalls in maintaining network security.
Proposed Framework for Matching Security and Sensitivity of Data
To ensure that the level of sensitivity of client data matches appropriate levels of security, the social worker after consultation with clients about their confidentiality concerns can make a determination about which level is appropriate for the type of information. It is rather a question of determining how sensitive client data is, and matching the level of sensitivity to the appropriate degree of security. The three levels are
1. high - If data were revealed, it could be very damaging to client.
2. medium - If data were revealed, there could be possible damage to client.
3. low - If data were revealed, there would be little or no damage to client.
A topology of types of problems, behaviors, and client situations would be as follows: (1) highest - life-threatening situations (for example, HIV illness; family violence; child, spouse, or elder abuse; retention or removal of life supports); (2) medium - threatening survival of a marriage, continuation of employment, or entitlements; highly stigmatized condition or diagnosis if revealed (for example, mental illness, or substance abuse); (3) lowest - "minor" mental health diagnosis (for example, adjustment disorders, most medical diagnoses). It should be noted that ethics, rules, and laws pertaining to confidentiality should not be suspended or ignored in any situations.
The following case examples illustrate the client situations and the three levels of security necessary.
Highest. A woman is the victim of severe and persistent battering by her husband, who has threatened her with death repeatedly if she were to leave him or reveal the battering. She finally seeks help through a hospital emergency room and is referred to a shelter for battered women. Through the intervention of the shelter's social worker, she seeks the protection of the police and courts. Her husband is arrested, but is free on bail. He has access to a friend who is a computer hacker. They trace his wife to both the hospital and shelter and break into the computerized records of both institutions. The life of the woman is in jeopardy.
Medium. A couple is treated for marital conflict by a mental health clinic. The husband and wife are seen separately as well. In an individual session, the wife reveals to the social worker that she is having an extramarital affair. The wife is not prepared to tell her husband about it, and she does not wish it to be discussed in the joint sessions. The clinic has an electronic record system. During the managed care company's review of the records, there is an inadvertent transfer of files to the husband's employer's human resource office. Word gets out in his place of employment that his wife is having an affair and that they are in marital therapy. The marriage ends.
Lowest. A social worker in an acute care facility is planning the discharge to a nursing home of a patient who has had a stroke. The social worker records the assessment, plan, and outcome into the hospital computerized medical record. Another staff member without password access to this case, comes upon the record accidentally through a "bug" in the program.
Social workers should expect that breaches of confidentiality will take place in electronic media. Thus, multiple levels of security, or "fire walls," must be in place to guard the most sensitive material about clients. If the consequences are dire for a client's life, the decision might be made to not place such data in electronic format. For example, in the case example regarding a battered woman, the decision might be made not to use electronic medium for the storage or transmittal of any information regarding her situation.
Security may be understood at three levels of vulnerability:
1. Computers connected to networks that allow external access by dial-in modems present the most vulnerable situation.
2. Nonnetworked computers that are accessible by modern and that allow uploading and downloading, are the next level of vulnerability.
3. Single work-station computers, not networked and not modem accessible, are the least vulnerable (Quarantiello, 1997).
Among the levels of available protection are
1. log-on procedures - A common system is password protection, with possible call-back verification (on a need-to-know, case specific basis); that is, online users should have access only to information that is appropriate for their positions and responsibilities (Butterfield, 1995; Quarantiello, 1997). In the near future, sophisticated biometric techniques will become widely available, such as voice recognition and validation; fingerprint, palm, or signature verification; and retinal scans.
2. firewalls - Systems are placed at the central connection site of a network to restrict access to internal systems. The firewall forms a locked gate through which all network connections pass, allowing them to be accessed and curtailed if necessary ("Firewalls are Born," 1997; Quarantiello, 1997).
3. encryption - Encryption renders data unintelligible by changing text into meaningless letters or numbers. Encryption programs usually involve running a program to encrypt or decode a file. (Butterfield, 1995; Quarantiello, 1997).
For minimally sensitive data log-on procedures may be the appropriate precaution for protecting sensitive data. Multiple levels of security including log-on procedures, firewalls, and encryption may be needed for seriously damaging data. Because confidentiality cannot be guaranteed with any type of computer security, it may be risky to store electronically any information that is potentially life threatening.
The following guidelines may help social workers promote and protect confidentiality for clients in the technological age:
1. Know federal and state laws about confidentiality, as well as the most recent court decisions. Social workers should have an understanding of important federal laws (Privacy Act of 1974) and recent Supreme Court decisions (Jaffee v. Redmond, 1996) that affect confidentiality. It is also important that social workers be knowledgeable about their own state laws and recent state court decisions about confidentiality issues. The local NASW chapter, a law library, or the Internet may be helpful sources of information.
2. Know the Code of Ethics and how it applies to confidentiality. The new Code stresses that the social worker must share with clients the limits of confidentiality posed by third party payers (managed care companies). Social workers also are advised to protect client confidentiality while using technological means to transmit information.
3. Assess level of confidentiality that is needed. Social workers should understand the level of confidentiality required for the information to be provided. Social workers should discuss with clients how sensitive the information is and incorporate their concerns about safety in a decision about the level of confidentiality needed.
4. Explore how confidentiality is protected in one's agency and by the managed care company. Policies about confidentiality are usually included in agency policies and procedures manuals. Social workers have a responsibility to know what these policies are and to work in their agencies to delineate the scope of these policies more clearly. Social workers should have similar expectations for managed care companies with whom they and clients interact.
5. Convey to clients both verbally and in written form limits to confidentiality. Discussing the limits of confidentiality with clients is not new. For a number of years social workers have been advised that absolute confidentiality cannot be guaranteed (Wilson, 1978) and that certain information such as child abuse and life threats to others should not remain secret. The burden of responsibility is on the social worker to provide informed consent so that clients have an understanding of what is to remain confidential, what will be shared, and how information will be shared.
6. Advocate for clients' rights to confidentiality. Social workers must advocate for clients within their agencies, as well as with managed care companies, to maximize confidentiality. Also, advocacy groups, including professional organizations, can maximize advocacy efforts on a macro level.
7. Partner with clients, managed care companies, and agencies in promoting client confidentiality. Social workers must work collaboratively with agencies and managed care companies to develop technological systems that promote and protect client confidentiality. Many managed care companies now employ social workers and other professionals. Agency-based and private practice practitioners can build coalitions with professionals within managed care organizations to monitor and protect necessary confidentiality in a technological environment.
8. Educate professionals, providers, and students about confidentiality with advanced technology in a managed care environment. Social work educators have a responsibility to teach about the new confidentiality to current providers as well as those entering the field. Although managed care and technology are rapidly changing the delivery of health and mental health services, social work educators have only begun to include content on these areas in social work curriculum (Strom-Gottfried, 1997). Students and practitioners need to understand the value of confidentiality, the significant differences in types of information, and the technological means for safeguarding confidentiality, especially in the new managed care environment.
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Barry Rock, DSW, is associate professor, and Elaine Congress, DSW, is professor and director, Doctoral Program, Graduate School of Social Service, Fordham University, 113 West 60th Street, New York, NY 10023; e-mail: docroc@pipeline. com.
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|Author:||Rock, Barry; Congress, Elaine|
|Date:||May 1, 1999|
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