BMDA: Step In Right Direction, But Falls Short

“The Bermuda Medical Doctors Association [BMDA] said they acknowledge the Minister of Health’s announcement “to remove the incarceration penalty from the Bermuda Health Council Amendment Act 2024 [BHCAA 2024]” and said “while this is a step in the right direction, it falls far short of addressing the broader concerns we raised during our meeting with the Minister on June 6, 2024.”

A spokesperson said, “The BMDA and its members take offense to the blame for high co-pays being placed at the feet of the providers. The real issue lies in the lack of adequate reimbursement from insurance companies. We wish the focus to be placed where it belongs, on insurance companies and the lack of enforcement by the Bermuda Health Council to mandate that they at least follow the published fee schedule for Bermuda. If this were done, patients would see lower co-pays.

Submitting Data

“The BMDA and its members are committed to submitting patient statistics directly to the Bermuda Health Council, recognizing the importance of this data for healthcare planning and policy. We acknowledge the Minister’s comment during today’s press conference that the Ministry or Health Council could assist providers in submitting data. However, what this means logistically is a government representative coming to our offices and looking into patient records to gather the required data. Yes, the data, once obtained, would be anonymized, but I am sure our patients would not consent to this intrusion. Therefore, it is essential to include a reasonability clause in the act to protect many providers who may lack the resources to collect the data independently.

Key Issues and Recommendations

1. “Commercially Sensitive Data: We propose adopting a system similar to that used in other countries, where commercially sensitive data is collected via health professional bodies. This approach ensures the protection of sensitive information while providing the necessary data to calculate appropriate insurance reimbursement rates.

2. “Financial Penalties: The BMDA categorically rejects the proposed $20,000 fine for non-compliance. A $5,000 penalty is more fair and reasonable. The Minister’s claim that the $20,000 fine aligns with previous legislation is misleading. Our own legal experts have confirmed this is not accurate. We also propose that the penalties be different for healthcare providers and insurance companies. An insurance company could afford a $20,000 or greater penalty, however many healthcare providers could not.

3. “Insurer Accountability: The BMDA stresses the need for greater accountability from insurers. Local insurance companies, including FutureCare, GEHI, and HIP, currently reimburse healthcare providers at rates significantly lower than major medical insurance companies. However, all of them reimburse providers at a much lower rate than what’s calculated by the Health Council, which is still lower than rates in other jurisdictions like the United States. For instance, these government insurers pay around $43 to $55 for a medical visit, compared to $171 to $200 in the USA.

“If insurers adequately compensated us, there would be little need for high co-pays, and patients would see a reduction in out-of-pocket expenses,” says a BMDA spokesperson. “Bermuda is one of the most expensive places to do business, yet the insurance reimbursement rates are the lowest, which is unacceptable.”

4. “Fair Compensation for Data Submission: Collecting and submitting the required data demands significant time and resources from healthcare practices. The BMDA insists on implementing incentives or compensation for practices to cover the costs associated with data submission.

Misleading Statements

“The Minister’s portrayal of the act as solely for health statistics is misleading. Our legal opinion indicates that the act is so broad that the Council could request virtually any information it wishes. We demand that the Minister provide clear reasons for the data being requested to ensure transparency and targeted data collection.

“In addition to the Minister’s remarks that some of the data they would require includes smoking history and exercise history, many providers don’t collect this data in the first instance and would surely be penalized as a result. The BMDA and its members believe this Minister is either misinformed or is misleading the public, as we feel they would actually require a lot more.

Commitment to Collaboration

“The BMDA is prepared to work collaboratively with the government to increase reimbursement rates and lower co-pays for patients. We advocate adopting the framework used in other countries for obtaining commercially sensitive data through professional bodies to ensure fair compensation for medical services.

“We are of the view if we had been given the courtesy of reviewing the legislation beforehand, as key and important stakeholders, these suggestions would have been given in advance of it being debated in the House, only to be held up in the Senate.

“We urge the Minister to make these further amendments for the sake of all concerned. These amendments represent a win-win alternative in that the Government gets the data they need and the patients’ and providers’ right to privacy is protected.”

Senate Talking Points re Bermuda Health Council Amendment Act 2024 ["BHCAA 2024"]

The following are the key privacy issues created by the amendments to the Bermuda Health Council Act 2004 ["BHCA 2004"] as set out in the BHCAA 2024:

1.]The Government has no real control over what information is collected by the Health Council

• What will become section 5[2] of the BHCA 2004 gives the Health Council the discretion to collect the “information necessary” to fulfil the broad policy directions provided by the Health Minister under section 7 of the BHCA 2004. The Health Council decides what information is necessary.

• Contrary to the Health Minister’s claim, the Government cannot guarantee that “no personal data will be asked for…” by the Health Council. That is because section 5[2] gives the Health Council the real power to decide if it wants to collect patient personal information [other than patient names].

2.] The amendments only require patient names to be anonymized but nothing else

• What will become section 5[3] of the BHCA 2004 only requires the Health Council to anonymize “patient names” when collecting information. All other patient personal information, such as birthdate and home address, is only anonymized if the Health Council “deems it necessary.”

• Only requiring patient names to be anonymized is not enough to protect patient privacy. It does not protect against “jigsaw identification”, which is the ability to identify someone whose identity is meant to be private for legal reasons by piecing together other, non-private information about that person.

• Contrary to the Health Minister’s claim, the anonymization of patient information [other than patient names] cannot be controlled by the Government. That is because section 5[3] explicitly gives the Health Council the power to decide when it is necessary to anonymize patient information [other than patient names].

3.] Bermuda’s privacy legislation will not protect patient information until January 2025

• The privacy protections in the Personal Information Protection Act 2016 ["PIPA"] do not come into force, and will not protect patient information, until 1 January 2025.

• Contrary to the Health Minister’s claim, if the BHCAA 2024 is passed by the Senate and immediately enacted, the Health Council can collect whatever patient personal information that it wants [other than patient names] prior to 1 January 2025 and PIPA will not protect that information.

4.] It is unclear who will anonymize collected information or how that will work

• What will become section 5[3] of the BHCA 2004 only requires the Health Council to collect personal patient information “in a form that anonymizes patient names; and the Council may, if it deems necessary, anonymize other identifying information…”

• It is unclear from the wording of section 5[3] whether the Health Council or health service providers are responsible for anonymizing patient names. However, it appears clear from the subsequent wording that the Health Council is responsible for anonymizing any other patient personal information that the Health Council deems necessary.

• The unclear wording means the Health Council may decide that it has the power to receive all patient information in non-anonymized form and then determine if and how it wants to anonymize that information. The lack of any Government oversight or explanation of the Health Council’s collection and anonymization process creates a real risk that patient privacy will not be protected.

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