HIPAA’s portability lost in privacy overkill

By Jim Leckrone, Contributing Writer
May 1, 2004 - Last updated: May 31, 2011

Eight years after insurance portability was guaranteed by federal law it remains uncertain — even unlikely — that the Health Insurance Portability and Accountability Act (HIPAA) achieved its primary goal.

Not only is the effectiveness of the act unknown, but no one seems very interested in finding out.

In 1996, Congress approved HIPAA virtually unanimously. The measure was designed to improve the availability of health insurance to working families and their children. It was signed into law by President Bill Clinton on Aug. 16.

A media release that day from the Department of Health and Human Services (HHS), stated the act “included important new protections for an estimated 25 million Americans, (approximately 1 in 10) who move from one job to another, who are self-employed, or who have preexisting medical conditions.”

Almost every provider and client has certainly noticed one of the side effects of this “medicine” from the federal government. It has caused dramatic revisions in patient record keeping because of privacy provisions.

An inquiry about portability effectiveness to Health and Human Services brought the following response from Donald E. McLeod in the Public Information Office of the Centers for Medicare & Medicaid Services.

“Our folks have looked around and concluded HHS has not done any studies related to the questions you asked about, nor are we aware of any other organization that has.”

In 2002, Consumers Union blasted HIPAA in an article in Consumer Reports titled “Falling Through the Cracks.” The article states HIPAA did not “come close to solving the problems people face and essentially left a dismal marketplace unchanged. The law did not ensure, for example, that everyone needing health insurance could get a policy regardless of health status. HIPAA set minimum standards for providing coverage of last resort, but it let each state devise its own rules. The result has been a hodgepodge of regulations that differ from state to state and provide varying levels of assistance for consumers.”

Much of the problem in practice has been that Congress realized it could not impose open-ended costs on private insurers without allowing for premium adjustments. That means that someone moving from a job with an employer who offered greater insurance protections to one with lesser coverage may face unaffordable co-payments and deductibles to maintain comparable coverage.

The limits are emphasized by an explanation provided by the Centers for Medicare & Medicaid, which administers Medicare and coordinates state coverage under Medicaid, on what HIPAA does not do. The centers’ website points out that:

1. HIPAA does NOT require employers to offer or pay for health coverage for employees or family coverage for their spouses and dependents;

2. HIPAA does NOT guarantee health coverage for all workers;

3. HIPAA does NOT control the amount an insurer may charge for coverage;

4. HIPAA does NOT require group health plans to offer specific benefits;

5. HIPAA does NOT permit people to keep the same health coverage they had in their old job when they move to a new job;

6. HIPAA does NOT eliminate all use of pre-existing condition exclusions; and

7. HIPAA does NOT replace the state as the primary regulator of health insurance.

Spokesmen in the health insurance industry say they are also unsure of how many people have actually utilized the portability provisions of HIPAA.

America’s Health Insurance Plans (AHIP) is the voice of America’s health insurers. It is the national trade association representing nearly 1,300 member companies providing health insurance coverage to more than 200 million Americans.

Public Affairs Director Mohit Ghose says his organization has compiled no data on how many people utilized the portability part of HIPAA. When asked if it may have increased costs for such insurance to all consumers, Ghose replied that there may have been increased costs to the industry because of HIPAA, but it would be difficult to tie those to the portability aspect.

Ghose says both portability and privacy concerns were evolving within the industry before HIPAA, so it would be nearly impossible to separate costs due to HIPAA from what would have happened in a free market.

He adds that HIPAA benefits included creation of a federal floor in such areas as nondiscrimination and the coverage of preexisting conditions and that the passage of HIPAA may also have caused some states to tweak their regulations to stay in line with the new federal law. But, Ghose noted, some of this would also have happened without HIPAA.

Jim Leckrone is a free-lance writer and former radio news journalist from Columbus, Ohio.

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