Rick Perlman Interview
Reprinted from the Participant Observer, a publication of the Clinical Psychology program of Long Island University Clinical Psychology Program (December 2009).
On the Front Lines of Public Policy Advocacy
An Interview with Dr. Fredric Perlman, Ph.D., F.I.P.A.
What is your role in health care legislation?
I understand from the preliminary communications we’ve had that you are interested in my role as an advocate for professional interests in the legislature and other social contexts. Let me begin by identifying myself a little more fully. I have been the chairman of the Public Policy Committee of the Confederation of Independent Psychoanalytic Societies (CIPS) for the last seven years, and for four of those years I was also president of that association. As a leader of that organization, I was very concerned about certain public policy issues, especially the licensing of mental health professional in general, and psychoanalysts in particular. I tried to move our organization - as well as the rest of our profession –toward a more active stance with regard to addressing the challenges that confront us as a profession. I got involved in this back in 2002 when the NY State legislature passed what I thought was a very poor licensing law for psychoanalysts. I should probably clarify that when I speak of “our profession” I primarily mean the professional community of psychoanalysts that I represent, though of course, all the public policy issues that concern psychoanalysts also affect all the mental health professions. While I am still involved in this and other policy issues here in New York and the US, I am also now the chair of the IPA Committee on Psychoanalysis and Government, and I am hoping to learn more about the challenges we face in other countries.
One of the real problems we have, at least in my opinion, is the low level of interest that professionals have in the public policy issues and advocacy in general. This is very true among psychoanalysts, and I think it is also true, to one degree or another, among other mental health professions. Clinical practitioners tend to think of their areas of professional responsibility in a narrow sense – that is, clinical practice. But all professions have a larger set of tasks to accomplish in order to maintain their standing as professions. Of course, we all recognize that professions have to maintain and accredit programs of training, do research to enhance professional functioning, set high standards for training and credentialing, and so on. But what is less recognized is that professions also have to engage in the collective marketing of their services, in ongoing negotiations with the larger society to protect their jurisdictions and privileges, to educate the public about professional services, and to work in a variety of contexts to promote a social-legal context of practice that is conducive to professional functioning. Every profession must take these tasks very seriously and neglects them to their peril. It was the neglect of these vital responsibilities that made it possible for the NY Legislature to pass the licensing bill to which I have alluded. Until the last few years, we have had no state organization whatsoever to protect our interests.
I have been involved in two major areas of public policy. I concentrated in these areas, not because they were the only important areas, but because they were areas that I thought needed the most attention. The first area, as I noted a moment ago, had to do with licensing. Back in 2002, NY State passed legislation creating four new professions: creative arts therapy, mental health counseling, marriage and family therapy, and psychoanalysis. Naturally, I was particularly concerned about the licensing of psychoanalysts, and was disturbed by the licensing criteria established in the body of that bill.
To understand my concern, you have to know that this bill was promoted by groups whose membership includes many practitioners with no graduate school training in any of the mental health professions and whose only mental health training occurred in free-standing psychoanalytic institutes. Their idea was to get a bill that would provide their members with a professional license. Now, as you may know, there are no universal standards for psychoanalytic training and quite a variety of standards in place at the smaller, less established, less mainstream institutes that were training these practitioners.
As it turned out, not surprisingly the educational standards for psychoanalytic training included in the licensing bill were far below those that have traditionally characterized psychoanalytic training. As I am sure you know, psychoanalysis is a very intensive form of treatment and it is customary to see patients at a frequency of three or more sessions per week, especially in training. But the licensing law established no frequency requirements at all, allowing practitioners who have been trained to see patients once a week get licensed as “psychoanalysts.” So this was a very big challenge for us. We saw it as a threat to the meaning of the term “psychoanalyst” by which we identify ourselves – an entirely different group of practitioners, I spearheaded the organization of a large coalition of North American psychoanalytic groups to lobby the New York State Department of Education to promulgate rigorous implementing regulations that would compensate for the laxity of the standards in the statute. When the regulations were finally established, and seemed to be even weaker than the standards in the statute, we formed a state confederation of analytic groups to sue the State Education Department. Our suit was never heard because the courts found that we lacked standing, that we had no grounds to sue because we weren’t adversely affected. We are still trying to address this issue. One thing we learned is that professionals need to be organized in advance, not in reaction, to threats, and we succeeded in fostering the formation of a state confederation in California and a more informal group in Massachusetts, states where similar licensing laws have been proposed.
A second major area that I have been involved in has been in the area of protection of patient privacy rights. This is an area of great concern. We all tend to take it for granted that what our medical records are private and secure, and that any decision to disclose medical information is up to us. Unfortunately, this is no longer the case in the United States. There are many groups aware of this problem. I have been engaged with this issue as Public Policy Chair of CIPS, and also as a member of the Committee on Government Relations and Insurance (CGRI) of the American Psychoanalytic Association (APaA), a group which has been at it for many years and is very sophisticated and effective in its lobbying efforts with regard to this issue. Both groups are part of a large alliance of organizations called the Coalition for Patient Privacy Rights, headed up by an analyst in Texas named Deborah Peel. APsaA is also part of the Mental Health Liaison Group, a large and important lobbying coalition formed of mental health professions and related groups.
There are a number of threats to patient privacy rights. I will cite just two of them, but your readers can read much more about all this on the Patients Privacy website (www.patientprivacyrights.com) or the CIPS website (www.cipsusa.org). One important area is the HIPAA act, enacted under President Clinton, which once provided a measure of privacy for patient medical information. But these privacy protections were actually turned on their head in 2002, when the Department of Health and Human Services, under George Bush, promulgated regulations that shifted the right of consent for the release of medical information from the patient to the Secretary of Health and Human Services. According to the new regulations, patient information can be disclosed by “covered entities” for the purposes of ”payment, treatment or health care operations.” That’s a lot of ground for disclosing sensitive medical information. What it means is that medical information about you or me can be disclosed, without our consent, not only among doctors, but within the insurance industry, the health care industry, and all of the larger financial institutions that own these industries. Which means, basically, that there is almost no wall of privacy between an individual’s health record and the wider public. Pretty scary, and it gets worse.
A second threat to patient privacy rights stems from legislative initiatives in Washington DC to establish a national “interoperable” system of electronic medical health records, or EMR’s (electronic medical records). All these bills, which as a group are usually referred to as “heath information technology” bills, would create a kind of health information internet that would allow authorized people - and there are always many such people in these bills - to access anyone’s medical records. The usual rationale for this openness of medical records is patient care. What happens if a California doctor is treating a visitor from New York who gets sick. If the treating doctor couldn’t get hold of the patient’s primary care physician, he would have to work in the dark because he would have no knowledge of the patient’s medical history. Under this new ‘interoperable” system, the California doctor could just log onto the system and get the patient’s medical records before initiating treatment. Well, this sounds pretty good when you look at it this way. But the uses and potential abuses of such a system are potentially pretty catastrophic if the system lacks adequate provisions to ensure the privacy of sensitive medical – and this includes psychological – information.
There have been quite a number of legislative initiatives to establish such a system, typically justified as a cost-saving and outcome-improving kind of system. The idea here is that if health records are digitized (in other words, computerized), a great deal of paperwork will be eliminated and health care costs will be dramatically reduced. This might or might not be true. Many of us who are involved in addressing the whole issue of EMR’s doubt that EMR’s will save money or improve outcomes. And there is ample data, produced by the Congressional Budget Office and some other studies, that suggest that the cost of establishing a nationwide system of EMR’s would be very great, requiring a hundred billion dollars or more, making it unlikely that money would be saved. Some experts in this area argue that EMR’s will actually increase costs and increase the likelihood of medical errors. Whatever the truth value to these claims - and intelligent people can disagree about these matters - the one thing about which we all agree is EMR’s put privacy at risk, and that provisions to ensure privacy rights need to be included in any health information technology legislation. Even if it were possible to craft provisions that absolutely safeguard the individual’s right to disclose or refuse disclosure of sensitive medical information, the potential for hackers to steal medical records is enormous. There have been many thousands of such thefts already, such as the huge theft of about 40,000 medical records from the VA Hospital system a few years ago. Of course, thieves can break into a doctor’s office to steal a patient’s chart, and this can be pretty devastating. Remember Daniel Ellsberg, whose medical record was stolen. But at least a paper record might be retrieved. One thing about electronic medical records is that hundreds of thousands of records can be downloaded in a few seconds, and they can be sent around the country or posted on the internet in a matter of minutes. They can never be retrieved and re-secured.
So you can see that the protection of privacy rights is a complicated legal matter as well as a complicated technical matter, and legislators are not all very interested in these concerns, especially when they have an opportunity to vote for exciting new legislation that promises to save everyone money (as if that were really true). So this has been a very difficult uphill battle.
As I speak about these things, I remember being at the mark-up of one of these bills a few years ago, at the House Ways and Means Committee, where Ed Markey, a terrific Congressman from Massachussets, had introduced an amendment to the bill which included the privacy provisions that APsaA, represented by its attorney-lobbyist, Jim Pyles, had prepared. Every Democrat voted for the amendment and every Republican voted against it. The last Republican to vote admitted that he favored the amendment, but had to bow to “party discipline.” Why did the Republicans all vote against an amendment to protect privacy rights? Some cited the need to get the bill through without complications – as if privacy rights were just a minor complication.
One of the most important lessons I have learned through my involvement in all this is that the advocacy arms of professional associations need to be organized at both the national and state levels. It is obvious that we want to be represented in Washington where legislation is crafted, and we analysts have been a significant presence on Capitol Hill since the presidency of Bob Pyles, whose brother would later become the APsaA attorney and lobbyist. APsaA’s influence on Capitol Hill is very impressive. As I said, it was APsaA’s recommended privacy provisions that were included in the Markey amendment. But national efforts ultimately require local organization because every legislator has a local constituency to whom he or she is responsive.
Here is an example of how vital it is to have good local organization. One of these Health IT bills, the Senate “Wired for Quality Health Care Act,” was very close to passage a few years ago and it contained absolutely no meaningful provisions to protect patient privacy. Senator Schumer of New York was undecided, or according to some accounts, leaning toward a “yea” vote. Fortunately, we were organized in New York because we had already pulled ourselves together to deal with the licensing legislation here. So we were able to organize a telephone campaign to press Schumer to oppose the “Wired” bill if it lacked privacy provisions. We called and called. In the end, Schumer voted against the “Wired” act, and his staff told us that he had been moved to this decision by our phone calls. A major achievement, and only a local group could have done it. Incidentally, one of things I have learned through these and other such experiences is that, since 9/11, it is better to call or send emails than to send snail mail – because snail mail can contain toxins or explosives. If you want to get through, call or email.
Anyway, our efforts with regard to EMR’s are ongoing, and we have had some significant successes. Earlier this year the Congress passed, as part of the Obama stimulus package, a bill called the “Health Information Technology for Economic and Clinical Health Act – quite a mouthful, which is why the bill is referred to as the “HITECH” Act. This act is very similar to those that preceded it with one big difference. This time, we succeeded in ensuring the inclusion of at least some important privacy provisions in this act. APsaA , the Coalition for Patient Privacy Rights, and other groups worked very closely with Congress, particularly Congressman Ed Markey of Massachusetts, Henry Waxman of California, and Olympia Snowe of Maine. The key people I know who were most involved in this were Bob Pyles, who chairs the APsaA CGRI Committee, his brother Jim Pyles, who is APsaA Washington representative, and Deborah Peel, founder and visionary leader of the Patient Privacy Rights foundation, whom I mentioned earlier.
Do you think the absence of privacy protections are a major barrier for psychoanalysts in the future?
Absolutely. The dismantling or weakening of privacy protections puts our practice and our profession at very great risk, because the patient can’t have trust that what he says to you that is confidential and will not appear in a medical record that anyone else will ever see. Who will speak freely under such conditions? There are an enormous number of people with cancer and other serious conditions who forego treatment because they don’t want their employers or insurance companies to know that they are sick. Many combat veterans with PTSD avoid treatment because they believe that exposure of their medical conditions would be damaging to them. These are all people who do not trust the privacy of their medical records and – sadly – they have a point. I have had patients who have been denied life insurance because their life insurance companies had access to their medical records, even when their medical insurance is with another carrier. I think this kind of thing goes on all the time today – so you can imagine how accessible medical records could be if they are all part of a health information internet.
But the news is not all bad. We did succeed in securing many key objectives with regard to the HITECH ACT. The act includes an explicit statement to the effect that nothing in the act can be interpreted as countering existing privileges, including the all important psychotherapist-patient privilege – in other words, confidentiality of patient’s communications to a therapist. HITECH thus confirms by statute the holding of the Supreme Court in the 1996 opinion in the case of Jaffe v. Redmond, which is very important. It could have gone the other way, but it didn’t. HITECH also includes a number of other privacy protections that we lobbied for, including the right of practitioners, like psychotherapists, to decide what constitutes the minimum information that must be included in any disclosure of patient information. The law also includes provisions for “breach notification,” which means that the patient must be notified if there is a breach in the security of his or her medical record. The law also gives individuals the right to get a full report of any disclosures of identifiable health information that are made. HITECH also includes provisions that restrict the sale of health information and prohibit the use of health information for marketing without the patient’s consent. Other provisions in the statute require the Department of Health and Human Services to consider a variety of regulations, such as segmentation of sensitive medical information and encryption of such information when it is transmitted. We will have to wait and see how these play out.
All this is just the beginning of our struggle to preserve privacy rights because HITECH is just the beginning. Remember, HITECH include an allocation of “only” about 20 billion dollars, and the actual cost of creating a national “interoperable” EMR system is going to be much higher, maybe tens of times higher. So there is probably going to be a lot more legislation, and a lot more regulations to implement that legislation, all of which means a continuing effort. Patient privacy rights can’t be taken for granted. It’s like that saying, eternal vigilance is the price of freedom. Well, perpetual advocacy is the price of patient privacy rights. As the EMR system grows, so grows the risk to privacy, so this is something we need all our professional groups and all our colleagues to be aware of.
Do you think the health care reform bill will be advantageous to mental health professionals?
I take it that you are talking about the health reforms that are being worked out in Congress. I really don’t know. I can see how this can come out in a lot of different ways. But who knows what the final bill will look like! I don’t really have much of a sense about what will happen. As Yogi Berra said, prediction is very hard, especially about the future.
I don’t know how mental health professionals feel about the various possibilities being discussed. Probably the most important and contentious issue is the issue of the “public option.” A lot of people are very passionately invested in the public option idea, and I certainly feel very strongly in favor of it if it’s done well and very strongly against it if its done badly (well or badly, in my opinion, of course). I think people disagree, often passionately about the public option as they do about other such proposals – especially when the proposals are ambiguous, in which case they function as a kind of projective test. Everyone can see his fondest hopes or worst nightmares in the same proposal: universal fantastic healthcare or some nightmarish idea of socialized medicine, that sort of thing.
I am saying this for a reason. Whenever a professional community is divided about a piece of legislation or a public policy issue, the organization has to understand the potential costs of advocacy. If a particular issue is too complicated or too controversial, it is unlikely that the membership will be able to come to any kind of consensus about it, at which point political action becomes seriously divisive and potentially damaging to the group. And this is no good, because however we might disagree about one thing or another, we need our organizations in order to protect and promote our basic agreed-upon interests, which are many and obvious. For example, we all favor the parity legislation that passed last year. Who wouldn’t want mental health services to be reimbursed in the same way as medical services? Or to come back to privacy: who among us would be willing to have our privacy rights, and the privacy rights of our patients, dismantled. Anybody want to give up professional privilege? Well, to protect these interests, we need to keep our organizations cohesive and strong. So we have to be careful about investing in issues that are divisive.
Here is a common situation: Sometimes our various professional organizations want to take a stand on social issues that some members think of as a matter of morality or of social justice. Should we invest in these matters? My experience is that these issues, often presented as black and white issues about which all intelligent people would “obviously” agree, are usually more controversial than they seem, and are often not directly related to our professional interests in the way that privacy or privilege is. So, in general, I am not in favor of risking cohesion on these issues, however morally compelling they may seem. There are other groups, civic groups or lobbying groups or political action groups that we can all join to pursue these purposes. What professional organizations have to do is sift through the issues that affect their respective professions and focus on those issues that matter most to the profession, and of those, to get behind the issues about which the group can arrive at something like a consensus.
So, to get back to health care reform, I don’t think we have consensus within our organizations about issues like the public option. We do know we want parity for mental health treatment. We do know that we want to preserve privacy rights. As you know, the Mental Health Liaison Group, which includes many of our professional groups, including APsaA, supported the reform bill that the House passed because it contained provisions that were favorable for the practice of psychotherapy and psychoanalysis. But we don’t know what the Senate bill, or the final bill, is going to look like. The bill would be terrific for us if it establishes universal insurance with a right to some kind of mental health care. That will be very good for the country and very good for mental health professionals. People will be able to get care and mental health professionals will be able to get work. But what will the details be? Will it say you’re entitled to 2 sessions? Will it say you’re entitled to sessions that are going to be paid at a rate of $35 per session? And, of course, if it mandates that every practitioner must be a participant in such a plan, then that will be a very large problem, because we don’t want our hours to be commandeered in that way. If it’s voluntary, well then that’s another matter. But these are the things that we don’t know yet.
How can empirical studies of psychotherapies help the cause of our profession?
I think every profession needs to be able to enhance its expertise in the ways that are appropriate to it. Of the three “learned professions” medicine, law, and theology, only one is rooted in science. But all of the contemporary professions are based on scientific and technical advances, and of course, science is a basic cultural value in our world. So, scientific studies that demonstrate the usefulness of any professional skill are critical to the welfare of that profession. Obviously, that means us. Empirical studies are vitally important to the enhancement and refinement of professional knowledge and clinical expertise. All the various schools of psychotherapy need to be involved in research that will improve their theories and practices.
Now, we also need to do that as a matter of public relations, because the public should be able to have some confidence in our services based on science, which is the cultural gold standard for truth. There is a whole discussion to be had here about the issue of confidence. Basically, professions are formed because they are based on an esoteric knowledge base that is a mystery to the lay public. This is a problem for both the occupation and the public, because the public has no basis on which to trust the skill or knowledge of the practitioner, and the occupation cannot market its skills without inspiring the public’s trust. Professions are formed to address this dilemma by the establishing a more or less standardized knowledge base, accredited training programs, and credentialed practitioners whom the public can trust to provide expert services according to a standard of care. So, to get back to the point, the demostration to the public that our procedures work is critical to the well being of the profession.
So, empirical research is both a moral obligation (we owe it to the public that we do our best) and a social obligation (we need to demonstrate to society at large that we succeed at what we do). So, on both counts, it is critical that we invest heavily in empirical research. A lot of research has been done which does in fact support psychoanalysis and psychodynamic therapy, but which is largely unrecognized. Everyone should be sure to read the new article by Jonathan Shedler, which will, I think, come out in the next issue of American Psychologist. This is a truly exceptional review of psychodynamic therapy, and demonstrates convincingly, that dynamic therapy produces results that other therapist don’t. But I will leave that to the readers of the article to judge. I am very excited by this article. Very impressed.
Why do you think such studies have not been recognized?
Well, I don’t know all the reasons. One thing for sure is that it is possible to look at empirical research with an eye towards learning what you don’t know, and it’s also possible to look at research with an eye towards documenting preexisting beliefs and political positions. So the discussion of empirical findings occurs in a political context where advocates of different points of view and schools of thought are vying for legitimacy, recognition, and money. Not just research money, but the money that comes from having practices, from a good market share. So if you’re an advocate of one school, you have a vested interest in promoting the research that shows your school to be the superior one and in dismissing or ignoring evidence to the contrary. The article by Jonathan Shedler is exceptional, to my knowledge, because it brings together evidence that shows that the results of psychoanalytic therapy are not only comparable to other therapies but really capable of producing very significantly better outcomes (significantly greater effect sizes). I think we all know that psychotherapy works with a large number of patients. This has been found over and over again in the research. Much psychotherapy research finds more or less comparable positive results with all the main forms of treatment. I’m sure you know the whole common factor argument, that all therapies essentially rely on certain common curative factors and that the particularities of any given school account for a very small amount of the variance. Shedler’s article shows that there are very marked differences in the outcome of psychoanalytic treatment as opposed to other treatments, when there’s a long enough time frame and a sensitive enough instrument.
But I want to make a point, getting back to the whole advocacy issue. None of our research will matter much if it isn’t known to the public. Here is where psychoanalysts and psychodynamic therapists have definitely fallen short. As I said at the beginning of this interview, we are just not that cognizant of the work that must be done to maintain a profession’s social viability. Professions need to devote a considerable measure of effort toward public information. We need to have special departments in our professional organizations working toward the education of the public about what we do, the outcomes we achieve, and the science that supports our claims. Our viability rests on this. It’s not just what we do or how well we do it – it’s who knows what we do and how well we do it.
