In 2008, so-called Diagnosis Treatment Combinations (Diagnose Behandel Combinaties, DBCs) were introduced in the
‘‘Based on what was stated earlier, the question whether or not [the NZa], in its new decision on appeal, has in the right way implemented the earlier verdict of the CBb, has to be answered in the negative.’’ (para. 5.33)
The guiding consideration in the earlier verdict of the CBb reads as follows:‘‘Providing diagnosis data about individual patients to health insurance companies violates the medical privacy of these very patients. Appellants have extensively elucidated which objections - from the perspective of the patient, the treatment and that of the professional confidentiality - are linked to the passing on of this sort of information to third parties that are not involved with the treatment. In the view of the CBb these objections are substantial: it concerns diagnoses that affect the core area of private life of the individuals involved, which makes information about this very privacy-sensitive. In addition, when it comes to the treatment of mental disorders confidentiality and secrecy are of great importance, as appellants have maintained.’’ (para. 18.104.22.168)
In the new verdict the CBb obliges the NZa to design an opt-out privacy regulation for the provision of diagnosis data for the treatment of mental disorders within the Mental Health Sector:
‘‘The outcome of the modification to the expense claim-system will in any case need to be that the obligation to indicate the diagnosis-classification code, as well as the obligation to indicate other data on the expense claim with which a diagnosis can be deduced, will be discontinued as such.’’ (para. 5.42)
In this context the CBb concludes on the one hand that the NZa (and the Dutch Ministry of Health) has the competence to realize this, and on the other hand that an exemption regulation (opt-out) is very well achievable. As the brand-new winner of a Dutch 'Big Brother Award', this is an excellent opportunity for Minister of Health Edith Schippers to restore her reputation with regard to privacy by closely monitoring the NZa’s implementation of the verdict. Privacy First is keen on keeping an eye on this.
Update 10 June 2012: Meanwhile the NZa has lived up to the verdict of the CBb by adjusting its rules. As of 7 June 2012, new NZa-policy rules within the Mental Health Sector apply according to the ‘letter and the spirit’ of the CBb:
1. In order to protect their privacy, patients who undergo psychiatric or psychotherapy treatment can reject indicating the diagnosis on the expense claim. In case patients want to make use of their health insurance, they must compose a ‘privacy statement’ together with the practitioner and send it to their insurance company. In that case it’s no longer compulsory to indicate the diagnosis. However, the medical advisor of the health insurance company may make inquiries respecting patient confidentiality.
2. For patients who pay for themselves, indicating the diagnosis is no longer compulsory. There is no need for a privacy statement.
Update 7 July 2012: Privacy First appears to have been celebrating too soon: The KDVP Foundation appeals to the new policy rules of the NZa. ‘‘The opt-out regulation designed by the NZa is incomplete, ineffective and in practice it is hence useless with regard to insured healthcare within the Mental Health Sector’’, KDVP states on its website. Among other things, the NZa appears to have ‘‘failed to provide the necessary information about the introduction of a privacy opt-out regulation for the Mental Health Sector’’ and has insufficiently defined the regulation in order to prevent that diagnosis data can (still) be exchanged. With the current opt-out regulation it can in fact not be prevented ‘‘that diagnosis data can still be deduced from codifications and declared amounts of money.’’ You can read the entire point of view of the KDVP Foundation HERE (in Dutch). It would be to the credit of the NZa if it were to mend the flaws in the opt-out regulation that were ascertained by the KDVP Foundation as soon as possible.