We publish a quarterly newsletter written by Bruce to update clients on legal and firm developments.  It is devoted to topics in mental healthcare and health law. Both current and recent back issues of the Newsletter are reprinted here, the most recent first.  Information in the Newsletter is not legal advice for any particular client or matter. Consult with an attorney individually for legal advice tailored to your legal needs and situation.  All Newsletters are copyrighted.

Health Law Newsletter       Autumn 2024  #90

New NYS law mandating separate patient consent to costs of treatment. Scheduled to take effect October 20, 2024, the new law, N.Y. Pub. Health Law § 18-C, states as follows: 

“Informed consent from a patient to provide any treatment, procedure, examination or other direct health care services shall be obtained separately from such patient's consent to pay for the services. Consent to pay for any health care services by a patient shall not be given prior to the patient receiving such services and discussing treatment costs. For purposes of this section, "consent" means an action which: (a) clearly and conspicuously communicates the individual's authorization of an act or practice; (b) is made in the absence of any mechanism in the user interface that has the purpose or substantial effect of obscuring, subverting, or impairing decision-making or choice to obtain consent; and (c) cannot be inferred from inaction.”

There was no advance public notice of this new law, which was buried in the Executive Budget for fiscal year 2025. Nor has there been any guidance offered by the State as yet. The law is clear that consent to payment must be obtained separately from consent to treatment, so consent to payment must apparently be by a separate document. Consent to payment cannot be “inferred from inaction” so it would seem that the documentation containing information about payment must be signed and acknowledged by patients following their being given an opportunity to read it and ask any questions about it. That consent “… shall not be given prior to the patient receiving such services…” would seem to indicate that the consent should be obtained at the same time that services are about to be rendered, and not too long beforehand; it’s unclear whether patients must re-consent prior to each service, and in any event, that would seem to me to be nonsensical for frequently and regularly occurring treatment of the same type and cost, i.e., psychotherapy. Clients might wish to use the “Good Faith Estimate” form related to the Federal No Surprises Act of 2022 to attempt to fulfill this new obligation.

NYS Medicaid coverage for LMHC and LMFT services.  NYS Department of Public Health Medicaid Update of June 2024 clarified payment schedules for services provided by mental health counselors and marriage and family therapists. LMHC’s and LMFT’s (but not creative arts therapists and psychoanalysts) were approved as Medicaid providers last year, see https://www.emedny.org/ProviderManuals/LMHP/PDFS/LCSW_LMHC_LMFT_Policy_Manual.pdf  Interestingly, Medicaid is now allowing incident to billing by such practitioners when services are rendered by limited permit holders, and is also allowing student interns to be involved in the reimbursable treatment of patients, though on a limited and strictly supervised basis, probably not cost-effective for private practices. In that regard, the Manual reads as follows:

“Student Interns.  Medicaid reimbursement is available when individual or group therapy is being provided under the direct, face-to-face supervision of a NYS licensed and currently registered practitioner acting within their scope of practice. To be Medicaid reimbursable, a session involving a student intern must be conducted with the licensed clinician in continuous attendance with the student intern and the member receiving the service. In addition, the qualified practitioner must be guiding the student intern in service delivery and cannot be engaged in treating another member, supervising another student intern, or doing other tasks at the same time. The qualified practitioner is responsible for the services that are furnished to the member, including writing a session note that reflects the service that was delivered, and signing all documentation. It is permissible, but not necessary, for the student intern to sign the session note. A separate note may be written by the student intern for educational purposes.”

Extension of the Telemental Health Care Access Act appears likely. The proposed federal Telehealth Modernization Act of 2024 extends for another two years beginning January 1, 2025 certain critical telehealth flexibilities for Medicare beneficiaries that began during the COVID-19 pandemic. Those flexibilities, which include allowing beneficiaries to access mental healthcare without requiring an in-person visit within six months of beginning treatment, were set to expire December 31, 2024. Although the relaxed provisions are not permanently extended as its proponents had hoped, the bill was advanced by a vote of 41-0 by the House Committee on Energy and Commerce on September  18^th and that bodes well for its eventual passage into law. It is likely that commercial insurers will follow suit and also continue to allow telemental healthcare visits to remain entirely virtual at least for the duration of the two-year extension.

When healthcare records are destroyed by flood, fire, etc. (acts of God) The NYS Medicaid program has issued guidelines interpreting New York Codes Rules and Regulations, Title 18 NYCRR 504.3, for providers for when their records are prematurely destroyed.  These guidelines are recommended not just for Medicaid providers but for all healthcare professionals to ensure that sanctions are not imposed when records are lost by “act of God.” The guidelines include that providers should document the loss as soon as practicable, but no later than thirty calendar days after discovery. That documentation should include a statement fully explaining the loss, damage or destruction of records including: a complete and full description of the loss that occurred including when it occurred, and how and when it was discovered; a listing of the documents affected including document type, relevant recipients, and dates of service; names and titles of individuals who discovered and documented the loss; a description of all actions taken to prevent recurrence of the event that caused the loss; and a complete listing and copies of any reports of the loss to insurance companies, police agencies, state agencies, or federal organizations including contact information for those entities.

“Gittel’s law” expands the professions covered by the criminalization of certain sexual misconduct by mental health professionals. New York State has since 2000 had a law that imposes criminal penalties on physicians, RN’s, psychologists, and social workers for sexual misconduct committed during a treatment session, consultation, interview, or examination. In June 2024, the NYS legislature passed “Gittel’s Law” that expanded the professionals who might be criminally liable for such offenses to include all “mental healthcare providers.” Gittell was a psychotherapy patient whose licensed mental health counselor allegedly took advantage of her, but the LMHC reportedly could not be criminally prosecuted because of the lack of inclusion of that profession in the previously existing definition. 

HEALTH LAW SUPPLEMENT           SUMMER 2024, #89

The necessity of record-keeping for psychotherapists. In my experience representing hundreds of psychotherapists in licensing board proceedings, the greatest risk to them in such matters is not that they will be deemed to have engaged in unethical, negligent or incompetent conduct, but rather that they will be found guilty of inadequate record-keeping. According to the American Psychological Association Insurance Trust, during the course of their careers, 40 percent of psychologists will receive a licensing board complaint while significantly fewer, just under 2 percent, will have a malpractice lawsuit filed against them. Statistics for other mental health professions are likely similar. One estimate by Ahia, CE and Boccone, PJ (2017) in “Licensure Board Actions Against Professional Counselors,” is that failure to maintain records accounts for 8.8% of licensing board actions against therapists; however, that underestimates the number in my experience.

In New York State, licensing boards are mandated to investigate all complaints, which are easily and quickly filed by disgruntled patients and ex-patients without legal representation or assistance. The initial step taken by State investigators is to demand from the respondent the records of treatment of the complainant.  Failure to provide the records in a timely manner is itself considered misconduct. It is my experience that while complaints against psychotherapist are most often dismissed because they are not credible, sanctions are often imposed because, notwithstanding having not been found guilty of any substantive misconduct, the practitioner’s records were deemed inadequate by the reviewing member of the licensing board.

Professional regulations in New York State and ethical and customary practice mandate that records of psychotherapy be maintained by all practitioners regardless of whether or not they are HIPAA compliant.  Licensing boards, other governing authorities, insurers, certain State laws and Federal HIPAA regulations also set certain standards for the composition of records. Failure to maintain records is considered unprofessional and unethical practice, and even malpractice, based on the reasoning that records must be maintained in order for subsequent practitioners to be able to provide treatment in the event of the unavailability or incapacity of the prior practitioner, and that a practitioner cannot competently plan and conduct treatment prospectively without being able to review patients’ responses to treatment retroactively. 

Understand that the above makes the case for the diligent maintenance of records in order to avoid an allegation of inadequate documentation per se, and does not address the equally critical reason for maintaining records, i.e., to provide a credible defense in the event of allegations of negligence or incompetence, whether in a regulatory (licensing board) or civil law (malpractice) forum. Due to their enhanced credibility, contemporaneously maintained records can effectively counter patient allegations by patients and prevent complaints from becoming versions of “he said, she said.”

Records must be maintained contemporaneously with the rendering of services as variously defined by regulatory bodies, usually within several days of the treatment. The JCAHO standard, the longest but most definite one, is that, “Organizations are required to have a written policy regarding timely entry of information into a medical record that does not exceed 30 days.”  All entries into a medical record must be dated on the date they’re created; to do otherwise is both criminal, i.e., Falsification of Records, New York  Penal Law § 175.10, and unprofessional conduct, a licensing board violation, Rules of the Board of Regents, 29.2(a)(3).   To create records that are not contemporaneous, that is, created significantly after the actual rendering of care, is usually pointless, or even counterproductive, viewed as inaccurate and self-serving.

               Clinical records of psychotherapy include: (1) an intake and treatment plan often divided into demographic information, health history, current assessment, mental status exam, treatment plan and consent documentation; and (2) progress notes, which in addition to descriptors contain information including the participants and topics discussed in a session, the type and focus of therapeutic interventions made, the assessed effectiveness of those interventions, the progress being made by the patient with reference to the initial and ongoing treatment plan, any changes to the treatment plan, the current mental status and any risk assessment of the patient, and further actions taken or planned.  Complete records also include correspondence with patients, including by email and text, memorialization of supervision and consultation, billing records, insurance records, and for certain purposes, records of other practitioners that have been sought and received.   

In New York State, records must be maintained for 6 years following the conclusion of treatment for adult patients, and for six years or until the patient’s 22^nd birthday, whichever period is longer, for minor patients. Notwithstanding that mandatory minimum retention period, risk managers generally recommend that records be maintained for at least ten years, because of an extension of the statute of limitations for which a claim for malpractice may be brought if the plaintiff claims mental incapacity (NY CPLR Section 208), and the lack of any statute of limitations on disciplinary complaints in New York State. Maintenance of records of treatment of Medicare and Medicaid patients is also recommended for at least ten years because under federal law they may be needed for that length of time to defend against allegations of filing false claims. If records are destroyed, a log of names, dates of birth and treatment and date of destruction should be created and retained indefinitely.

The new FTC ban on non-compete provisions. Passed in April 2024, a new Federal Trade Commission rule, 16 CFR Part 910, RIN 3084-AB74, Non-Compete Clause Rule, bans as a method of unfair competition, “non-compete clauses” for “senior executives,” but only prospectively, whereas for all other workers, it applies both retroactively and prospectively. Thus, existing non-compete clauses for senior executives are permitted to remain in force.  A “senior executive” is defined as a worker earning more than $151,164 annually who is also in a “policy-making position.” 

The rationale for this difference – that the rule does not affect previously agreed upon non-compete agreements made with senior executives - is that less than 1% of workers are estimated to qualify as “senior executives” and those that do are more likely to have access to legal counsel and the ability to negotiate, rendering such non-competes not as coercive. Nonetheless, because senior executives are more likely to start new businesses, the majority found justification to ban non-compete clauses to such executives but only prospectively.

The rule defines “non-compete clause” as “[a] term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (i) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (ii) operating a business in the United States after the conclusion of the employment that includes the term or condition.” This definition includes forfeiture-for-competition clauses, certain training-repayment agreements and certain liquidated damages provisions. Other agreements, like nondisclosure agreements or agreements preventing former employees from soliciting customers, are not categorically barred, but could fall within the rule’s prohibition depending on the particular circumstances. There is some uncertainty about definitions, but we are generally recommending to clients that while they may maintain non-solicitation provisions in employment contracts for now, geographic and temporal restrictions on subsequent employment should be eliminated. However, three federal lawsuits have been filed challenging the ban, and more are likely to follow, so definitive advice is premature.

HEALTH LAW SUPPLEMENT            Spring 2024, #88

New York is soon to require additional updated training for mandated reporters of child abuse and neglect.  Chapter 56 of the Laws of 2021 amended Social Services Law §413 to require such additional training to include protocols to reduce implicit bias in decision-making processes, strategies for identifying adverse childhood experiences, and guidelines to assist in recognizing signs of abuse or maltreatment while interacting virtually. This law requires that mandated reporters, including all of the mental health professions and including those who have previously undergone the heretofore required training, complete the additional updated training curriculum by April 1, 2025.  More specific information will be forthcoming shortly.

It’s harder to collect medical debt in New York State now. Legal action against ex-patients – suing them - has always been frowned upon by risk managers because of the risk that the former patients might respond by countersuing for malpractice, a common reaction by debtor-patient and their attorneys. Such countersuits are usually groundless and dismissed but necessitate involving the practitioner’s malpractice carrier, and require that practitioners thereafter respond affirmatively when asked on various applications if they’ve ever been sued for malpractice. 

A means to avoid that risk has been to refer debtors to a collection agency rather than to initiate legal action in a court. When a collection agency rather than court action is utilized, the ex-patient is not given a forum in which they can, and even might be invited to countersue. (Litigants are encouraged to consolidate any related legal actions against each other into one lawsuit.) A collection agency might demand payment and threaten placing a “derog” or derogatory rating on the debtor’s credit rating by reporting the non-payment to credit reporting agencies, i.e., TransUnion, Equifax, and Experian, if payment is not made. Such threats may be meaningful to consumers whose ratings are taken into account when they apply for mortgages, loans, credit cards, etc. But on December 13, 2023, Governor Kathy Hochul, to address the issue of consumers having their credit ratings ruined by medical debt, signed the Fair Medical Debt Reporting Act (A.6275A/S.4907A), a bill prohibiting healthcare debt from being either collected by credit reporting agencies or included in a consumer’s credit report. Thus, the threat previously made by collection agencies of reporting non-payment to credit reporting agencies and adversely affecting a consumer’s credit rating has been removed.  

An alternative means of relatively safely collecting medical debt that also avoided a countersuit had been to wait until the State statute of limitations on malpractice had expired (3 years for non-medical healthcare practitioners, see NY CPLR Sect. 214) and then to sue the patient for the overdue debt. The statute of limitations had previously been 6 years for debt collection, giving practitioners a 3 year window to sue patients during which the patients would be time-barred from bringing a countersuit for malpractice. That delay combined with a provision in a signed informed consent agreement by which patients were charged interest on overdue payments seemed the best option to many practitioners. However, that 3 year window was closed when the New York Consumer Credit Fairness Act of 2021 went into effect in April 2022, and reduced the statute of limitations for consumer debt collection from 6 years to 3 years. The two statutes of limitation now run concurrently.

The statute of limitations for medical, dental or podiatric malpractice is 2.5 years, so physicians still have a brief 6 month window after the statute of limitations on medical malpractice has expired at 2.5 years but before the statute of limitations on debt collection has expired at 3 years, to sue former patients for non-payment without concern about countersuits for malpractice.

But non-medical healthcare practitioners are left with no options for attempting to collect on overdue debt except to (i) use collection agencies, who now have no true leverage since they can no longer report non-payment to credit reporting agencies, or (ii) to sue ex-patients in debt collection lawsuits and risk a countersuit for malpractice. Collection agencies may neglect to mention to debtors that they may no longer report non-payment to credit reporting agencies, but doing that might violate the federal and State Fair Debt Collection Practices Acts which prohibit lying or threatening any action that they do not truly intend to take.

The Federal Corporate Transparency Act. Under this new Act that went into effect on January 1, 2024, “beneficial owners” of 25% or more of corporate entities (with beneficial owners defined as those individuals who ultimately own or control the entities), including professional entities such as PC’s and PLLC’s, are required to file a beneficial ownership information report (BOIR) with the US government. The law is part of the U.S. government’s efforts to make it harder for bad actors to hide or benefit from their ill-gotten gains through shell companies or other opaque ownership structures. The required report must be filed by January 1, 2025 for entities created prior to January 1, 2024, and within 90 days of formation for entities formed on or after January 1, 2024. The beneficial ownership information report (BOIR) must be filed with the Federal FinCen (Financial Crimes Enforcement Network of the US Treasury) at their website www.fincen.gov/boi or https://boiefiling.fincen.gov/  . Non-compliance, a failure to file, may result in civil or criminal penalties, fines of up to $500/day and imprisonment of up to two years.  Most clients have found reporting to be simple and quick. 

One federal court in Alabama held the Act to be unconstitutional as beyond the Constitution’s enumerated governmental powers even under the Commerce Clause, National Small Business United v Yellen, No 5:22-cv-1448-LCB (ND Ala. (3/1/24), but the Association of International Certified Professional Accountants (AICPA), while pushing for suspension of the Act, advises that businesses should continue to file BOIR’s.

Use of the title “Doctor” by non-physicians in New York State. In a case that received much publicity, a nurse practitioner with a doctorate of nursing practice (DNP) who advertised herself as “Dr Sarah” was recently cited for unprofessional conduct and unfair business practices in California. Apparently, California’s Medical Practices Act allows only physicians to refer to themselves as “doctor.”  Under New York State General Business Law 350-B, a non-physician health care professional may use the word “doctor” in advertising but must “conspicuously disclose the profession in which he or she is licensed.” The New York State Education Department, under Education Law and regulations prohibiting misleading advertising, adds certain requirements. In its granting of names to professional entities, NYSED also allows non-physicians to use the word “doctor” in the names of their professional entities (which names are also required to state the name of the profession(s) being practiced) but adds an additional requirement that the doctoral degree be related to, even if not required for, the profession being practiced. Hence a hypothetical LCSW with a DSW degree might call herself “Dr. Michelle Jones, LCSW,” but if her doctorate was in political science, she likely should refrain from using the word “doctor” in her professional advertising.

______________________________________________________________________________________________________________________

HEALTH LAW SUPPLEMENT         Winter 2023-24, #87

 Restrictive covenants remain legal (and potentially problematic for mental health practices) in New York State. This month, Governor Hochul vetoed a bill that had passed the State Assembly and Senate that would have prohibited non-compete agreements, a type of restrictive covenant, in New York State. The governor believed that businesses might leave the State and relocate to one of the majority of other states that allow such covenants if the prohibition became law in New York, i.e., such prohibitions are considered “anti-business.” Thus the law in the State continues to be that restrictive covenants in contracts between employers and employees will be enforced by courts if the employer can show that: (1) the restriction is no greater than what is required to protect a legitimate interest of the employer (such interests are usually related to the employee having had access to trade secrets of the employer), (2) the restriction does not create an undue hardship for the employee, and (3) the restriction does not harm the public. Although they continue to be legal, certain restrictive covenants are potentially problematic for psychotherapy practices.

           The first of the two types of restrictive covenants is a non-compete agreement. Non-compete agreements are of two kinds: geographic and temporal restrictions on where an ex-employee may be otherwise employed or practice; and a bar on ex-employees continuing to treat in their own or other practices patients introduced to them by their former employers. A typical non-compete of the first type would prohibit an employee from working in or opening an office of their own within a mile of their employer’s office. Of the second type would be a prohibition for a period of perhaps a year on an ex-employee treating any patient whom they previously had treated at their employer’s practice. Temporal geographic restrictions may be the easiest to prove and enforce but most recently they have become superannuated because of the prevalence of virtual psychotherapy. Whether a psychotherapy practice can absolutely prohibit, even for a limited period of time, an ex-employee from treating patients treated by the ex-employee at the practice of the employer is an open and I believe undecided issue in New York State. The as yet unlitigated issue is whether such a prohibition is void because it harms the public. Some states have held that it does, e.g., in New Jersey it is considered unprofessional conduct for a licensed psychotherapist to enter into an agreement that interferes with or restricts a client's ability to see the client's preferred therapist, N.J.A.C. 13:42-10.16.

           The second type of restrictive covenant is a non-solicitation agreement. These also are of two types: a prohibition on employees or ex-employees soliciting or asking other employees of the employer to leave the practice of the employer and join the employee at their practice or some other practice; and forbidding employees or ex-employees from asking patients whom they have treated at their employer’s practice to leave that practice and instead enter treatment with the employee at their own or another practice. Non-solicitation agreements are probably enforceable in psychotherapy practice in my opinion because they meet the above criteria and need not compromise patient care. Ethics codes seem to allow and in some cases favor such provisions: see the NASW Code of Ethics 3.06(a) 3.09(a) and 4.07(a), and the ACA Code of Ethics C.3.d. The latter reads, “Recruiting Through Employment: Counselors do not use their places of employment or institutional affiliation to recruit clients, supervisors, or consultees for their private practices.”

           Notwithstanding the likely legality of prohibitions on the solicitation of patients, there are significant evidentiary problems for employers in proving that an ex-employee solicited patients to leave the employer’s practice at the invitation of the ex-employee rather than at the volition of the patient. To contact ex-patients to ask for such information risks accusations of a boundary violation and, if evidence is be presented in a legal forum, of a breach of confidentiality.

 A new State law requires forensic custody evaluators to receive specialized training in domestic violence and abuse.  Effective December 23, 2023, with the passage of Forensic Evaluator Training Law, Laws of 2023, chapter 23, A632, S860, mental health professionals who wish to be certified to conduct court ordered forensic custody evaluations must obtain special training regarding domestic violence and abuse. The law mandates that all forensic evaluators be licensed psychologists, psychiatrists, or social workers and requires evaluators to receive training from the New York State Office for the Prevention of Domestic Violence (OPDV) every two years concerning the dynamics of domestic violence. Currently, initial Certification requires 24 hours of training offered by the OPDV. See https://www.op.nysed.gov/sites/op/files/2023-10/fce-training-flyer-2023.pdf 

           The justification for the new law, stated in its preamble is that, “According to the Center for Judicial Excellence (CJE), a child advocacy not-for-profit organization that promotes judicial accountability and child safety, more than 700 children across the nation have been killed by a parent or parental-figure during circumstances involving divorce, separation, custody, visitation or child support since 2008. Additionally, CJE has found that at least ninety-eight children in forty states have been killed by a parent or parental-figure after a family court allowed unsupervised contact with the child after the court was informed beforehand about the parent's or parental-figure's violent history, mental illness, or risk of harming a child.” 

           The curriculum for the course is required by the law to include, “ A review of: relevant statutes; case law and psychological definitions of domestic violence; coercive control and child abuse; the dynamics and effects of domestic violence and child abuse, including but not limited to, emotional, financial, physical, technological and sexual abuse; the barriers and fears associated with reporting domestic violence and child abuse and why victims may not have documented evidence of abuse; tactics commonly used by one party to induce fear in another party or child, including verbal, emotional, psychological, and/or economic abuse, isolating techniques, coercive control, and monitoring of a partner's location and activities; litigation abuse and demands for custody or joint custody in order to pressure the partner to return or punish the partner for leaving; trauma, particularly as it relates to sexual abuse and the risks posed to children and the long-term dangers and impacts imposed by the presence of adverse childhood experiences; the increased risk of escalating violence that occurs during child custody proceedings; and the danger of basing child custody decisions on claims that a child's deficient or negative relationship with a parent is caused by the other parent.”

           Knowledge of the above topics would presumably be helpful as well to the many non-forensic clinicians who treat parents or children involved in legal custody or visitation disputes, a significant portion of patients treated by psychotherapists in their general practices.

 Further extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications. On October 10, 2023, the federal Drug Enforcement Administration and Department of Health and Human Services extended to December 31, 2024 the exception that allows for the prescribing of controlled medications by telemedicine encounters even when the prescribing practitioner has not conducted an in-person evaluation of the patient. This decision was urged by organizations like the American Telemedicine Association and the American Hospital Association, who argued that requiring in-person visits would impede access to necessary care, especially for patients with opioid use disorders, whose numbers have grown during the pandemic.

______________________________________________________________________________________________________________________

HEALTH LAW SUPPLEMENT     Autumn 2023, #86

Simple Practice changes its terms and conditions. Simple Practice, a cloud-based electronic health records and practice management system used by many psychotherapists - the company claims 178,000 + customers - announced in August 2023 that it was changing the terms and conditions of its contract with therapists. Changes were made to a provision entitled "License to User Data" that caused concern to some customers about HIPAA compliance and about possible feeding of protected health information (PHI) into artificial intelligence. Simple Practice clearly stated that the license granted to it by its clients in the new terms and conditions, which includes a license to uploaded PHI, would not violate HIPAA. Concern arose however, because the provision appeared to customers not to differentiate between terms for medical records containing PHI with its strict privacy requirements and public-facing services with less stringent requirements. In an attempt to reassure its clients, Simple Practice then extended the time for customers to accept the new conditions and wrote, "We do not sell our customers' or your clients' PHI or Personally Identifiable Information. We do not access PHI outside of HIPAA guidelines. We do not keep PHI after termination of customers' accounts. We do not provide AI with access to customer or client data. We do not record telehealth sessions." I see no reason to disbelieve that explanation offered by Simple Practice. For most of our clients, that assurance settled the issue.

BetterHelp and HIPAA compliance. Perhaps our clients who were concerned about Simple Practice had become sensitized by the news in March of this year that BetterHelp, which characterizes itself as "the world's largest therapy platform," - it had revenues of $721 million in 2021- had been fined $7.8 million by the US Federal Trade Commission. On its website, the platform made representations such as, "Rest assured - any information provided in this questionnaire will stay private between you and your counselor." Despite its privacy promises, however, the platform: uploaded users email addresses and disclosed users' therapy history to Facebook (BetterHelp and Facebook have had an extensive relationship; BetterHelp spent approximately $20 million on its Facebook advertising and in 2021 was generating about100,000 new customers a year through Facebook); revealed to Snapchat email addresses of former users (apparently to target them for ads to resume treatment); and disclosed visitors' email addresses to Criteo and Pinterest. Note that the FTC penalized BetterHelp not because of any HIPAA violations - BetterHelp is not a "covered entity" governed by HIPAA - but because it made misrepresentations in its advertising. On the wake of the FTC penalty, BetterHelp now faces multiple class action lawsuits by law firms representing users of the platform. 

And a class action lawsuit against Headway too. In August 2023, a class action lawsuit was filed in California against TherapyMatch Inc, with a business name of Headway. The suit alleges that the business corporation, which operates a digital platform to assist prospective mental healthcare patients find a practitioner who accepts their insurance, tracked users’ interactions using Google Analytics Code as the users navigated the corporation's website. Google then purportedly used the information provided, such as the mental health issue for which the user was seeking a therapist and the location of the prospective patient, to deliver advertisements to the user. The class action lawsuit is based on California law, namely, its Invasion of Privacy, Confidentiality of Medical Information, and Consumer Privacy Acts. The suit is not based on HIPAA violations, but its allegations include that TherapyMatch/Headway violated HIPAA privacy regulations as well. It is unclear to me what, if any, connection the defendant and lawsuit have with New York practitioners who contract with the New York professional corporation that operates under the trade name of “Headway” in New York State; the legal name of that entity is New York Behavioral Health Services, P.C. Any connection should become clearer with time as legal discovery occurs. If there is some affiliation between the New York PC, the California defendant and New York practitioners, perhaps by means of a HIPAA Business Associate agreement, and if the allegations of HIPAA violations prove true, then practitioners in New York may need to attend to obligations under HIPAA breach notice requirements.

More states allow out of state licensees to practice telehealth. Idaho, South Carolina and Vermont joined Florida and Arizona this year in allowing out of state licensed healthcare professionals to practice telehealth in their states just by registering, i.e., not obtaining full licenses, just retaining a registered agent and registering by confirming their licensure in another state.  The telehealth allowance, available only to individuals and not to organizations, does not permit the out of state licensee to open a physical office in the state, but rather only to practice telehealth with their state’s residents. By retaining an in-state registered agent, the out of state licensees make themselves subject to service of legal process in the other state. State regulators assume that protection of citizens of their states require that any healthcare professionals treating their citizens, even if just by telehealth, should be answerable to the licensing boards and courts of that state, and seemingly retaining an in-state registered agent accomplishes that goal. Malpractice carriers generally cover such authorized interstate practice. Because some of these states only allow telehealth registration for out of state professionals for whom there is a comparable license in their state, they do not grant licenses in all professions licensed in New York State and, some New York State licensees, for example licensed creative arts therapists and licensed psychoanalysts, may not be eligible for telehealth registration in them. An unresolved issue is whether and how out of state licensees conducting telehealth in one of these states are governed: is it by the state of their licensure, the state in which they registered as a telehealth provider, or both? Laws regulating the limits of confidentiality and even standards of care for psychotherapists can vary considerably from state to state.

HEALTH LAW NEWSLETTER         Summer 2023, #85

           Can New York State licensing boards gain access to patient records without patient authorization or a court order? Currently, the answer to that question is that while the New York State Department of Health’s Office of Professional Medical Conduct (OPMC) that governs physicians can compel MD’s to produce medical records without patient authorization or a court order in order to investigate allegations of professional misconduct by physicians (NY Public Health Law Section 230(10), the New York State Education Department’s Office of Professional Discipline (OPD) that governs all other licensed professions, including social workers, psychologists and mental health practitioners does not have such powers (New York Education Law, Section 6506). 

           However, Senate Bill 6936 recently was passed in the New York State Senate and appears likely to become law as there was no opposition to its passage in the Senate. The bill enhances the ability of the OPD to investigate complaints of professional misconduct by providing the OPD with the same access to patient records currently granted to the OPMC but for the purpose of the investigation and prosecution of allegations of professional misconduct against non-physicians.

           Expansion of the powers of the OPD has significant implications. The OPD is required to investigate all complaints, NY Education Law Section 6510(1)(b). However, currently the OPD is prevented in most cases from investigating complaints when the complainant is not a patient. In such instances, the OPD usually cannot obtain an authorization allowing it access to the treatment record of the patient about whose treatment the complaint is made. In those cases the OPD can seek a judicial order compelling the professional to produce records, but courts in such circumstances must assess the credibility of the complaint and take into account the confidentiality rights of the patient that would be violated in making such a determination, see NY Public Health Law Section 18.

           To make the above abstractions concrete, here is an example (and one I have encountered not infrequently). Currently if a psychotherapist is treating an adult patient who feel benefitted by therapy but whose parents or significant other comes to believe that the therapist has engaged in misconduct by alienating the patient from their family, and the family member files a complaint against the therapist, the OPD is usually thwarted from investigating the complaint because without patient authorization, the OPD has no automatic access to the patient’s treatment record. If the law changes as proposed, then the OPD would have access by law to the patient’s chart and would be compelled to investigate regardless of the breach of confidentiality imposed on the patient thereby. Moreover, in my defense of therapists in licensing board proceedings, it has not been uncommon for the respondent-psychotherapist to be cleared of the allegations made by the complainant, but then charged with another type of misconduct, often inadequate record-keeping, based on the review of the respondent’s record by the OPD investigator, prosecutor and board member.

           That the proposed change in the law has encountered no opposition from professional associations, or patients’ rights groups might be surprising, but I suppose the reason is that such opposition might appear to be in defense of professionals acting incompetently or negligently. The reasoning of those favoring or ignoring the change might be that if professionals have done nothing wrong, then they should not be concerned about an investigation of their conduct by the State. Such reasoning places considerable trust in prosecutorial discretion. As an attorney who has defended many professionals in licensing board proceedings, I see the flaw in that logic, but perhaps it is not apparent to others.

Should New York State pass the Grieving Families Bill (GFB) (A6698/S6636)? NYS is one of the very few states that limit damages that may be paid to family members in wrongful death cases, including professional malpractice cases. Family members, currently defined exclusively as children, parents and spouses, cannot be compensated for emotional loss, but rather only for pecuniary losses based on the financial support that decedents would have provided to their dependent family members had they lived (NY Estates, Powers and Trust Laws 5.-4.1-4.6). Thus, for example if in a malpractice case, a negligent practitioner is deemed to have caused the death of a non-earning but much beloved family member, damages payable to their surviving family members would be slight, whereas if the death were of a high earning patient with with a dependent spouse or children, damages to be paid would be great.

           NYS’s law has not changed in 170 years. About 41 other states have laws that allow family members to be compensated for the emotional distress caused by the death of their loved ones. Proponents of the change claim that the current law is archaic and inhumane, limiting the value of a human life to its wage-earning capacity, and even has the odd effect of it being less costly to a wrongdoer to kill a person than to injure them seriously. Those defending the current law, which include the Medical Society of the State of New York and insurance companies, claim that any change in the law expanding liability settlements and awards would greatly increase malpractice, auto and property insurance premiums and taxes (to pay for lawsuits against governmental agencies) Premiums for malpractice insurance for health care professionals would rise by an estimated 40%. Although unsaid by opponents, in addition to increasing insurance premiums, the GFB would also increase the likelihood of awards in wrongful death cases exceeding the limits of insurance coverage, thus exposing practitioners to the potential risk of having their personal assets seized if their insurance coverage is inadequate to fully compensate victims of their malpractice. 

           Governor Hochul vetoed a Grieving Families Bill that passed the State legislature in 2022 due to those concerns about increases in insurance costs and taxes. That original GFB allowed damages to be paid to any “close family member,” with the latter term being undefined.  A new GFB was introduced last month that addresses at least one of the Governors concerns - it circumscribes somewhat which family members are eligible for compensation to spouses or domestic partners, children, foster children, step-children, step-grandchildren, parents, grandparents, step-parents, step-grandparents, and siblings - but it too would increase awards and settlements and likely cause significant increases in malpractice premiums. The new bill will undoubtedly also be passed in the legislature. Whether the Governor will veto it as she did the prior GFB remains to be seen.

           NYS expands the list of professionals who are mandated reporters under the SAFE Act. Under that Act, certain practitioners, including most psychotherapists, are required to report to State authorities who regulate ownership of firearms, patients under their care who are “...likely to engage in conduct that would result in serious harm to self or others...” NY Mental Hygiene Law Section 9.46. Heretofore practitioners required to report included MD’s, PhD’s, RN’s and LCSW’s. The list has been expanded to now also include NP’s, LMSW’s, LMHC’s and LMFT’s. For some unstated reason, licensed psychoanalysts and licensed creative arts therapists continue to be omitted

HEALTH LAW NEWSLETTER         Spring 2023,  #84

The “R” credential for LCSW’s, now obsolete, is eliminated in New York State, and the LCAT is further sidelined.  The purpose of the “R” credential under New York State’s original “Freedom of Choice” law, Insurance Law Section 3221 was to require insurers to reimburse for mental health services rendered by professionals other than psychiatrists while at the same time addressing stated concerns by insurers that such services should only be reimbursable if provided by trained qualified professionals. At the time of its passage, many insurers limited reimbursement for mental health services to those provided by an MD. The original Freedom of Choice law required insurers to also reimburse for services rendered by psychologists and by licensed clinical social workers, but by LCSW’s only if they had attained the “R” credential by obtaining three additional years of post-licensure supervised experience as psychotherapists. Since its passage however, mental health parity laws have been passed and insurers have usually and voluntarily reimbursed for mental health services not just of MD’s, PhD’s and LCSW/R’s, but also for services of other State licensed mental health practitioners i.e., including LMHC’s, LMFT’s, Lpsa’s, and LCAT’s.  (Indeed, insurers lobbied for the licensure of those additional professions in the early 2000's, likely in order to increase the supply of psychotherapists and thereby decrease their reimbursement rates.)

           Chapter 818 of the Laws of 2022 revised the State Freedom of Choice law to require that insurers reimburse for mental health services of all licensed mental health professionals including LCSW’s without the “R” credential as well as the other masters level mental health practitioners, thus rendering the R credential unnecessary.

           On January 1, 2023, the State Office of the Professions announced that LCSW’s who have already earned the “R” privilege would retain that designation, but because the privilege is no longer required under the Insurance Law, the OP will no longer receive or process applications for the privilege.

           Most recently, the State took a step back, and under Assembly A01975 signed by Governor Hochul on March 3, 2023, the designation of LCAT’s as one of the mental health professions whose services must be reimbursed by insurers under the 2022 law was eliminated. Insurers may at their option pay for the services of LCAT’s but they are not required to do so in New York State. The elimination of LCAT’s as mandatorily reimbursable providers aligns with their ineligibility for the “diagnostic privilege” soon to be made available to LMHC’s, LMFT’s and Lpsa’s but not to LCAT’s (see our previous newsletter for more information about the diagnostic privilege). The stated reason in the bill for denying mandatory reimbursement by insurers for the services of LCAT’s was “cost concerns.”

Expiration date approaching for the NYS Licensed Social Worker Loan Forgiveness Program (LSWLF), and a similar program for NYC Health + Hospitals employees. The deadline of April 13, 2023 is approaching for social workers to apply to the NYS Higher Education Services Corporation (HESC) for student loan forgiveness. The maximum award under the program is $26,000. Awards are granted to social workers who work full time in an agency in a critical service area including home care, health, mental health, substance abuse, aging, HIV/AIDS and child welfare or communities with multilingual needs. Eligibility is contingent on employment in an agency located in a Health Professional Shortage Area (HPSA) as designated by the US Department of Health and Human Services. Parts, but not all, of almost all counties of the State are so designated.

           Employees of NYC Health + Hospitals who are licensed as mental health professionals (not only social workers), are eligible for the Behavioral Health Loan Repayment Program (BH4NYC). The Progam was initiated by a $1 million anonymous donation, will grant up to $30,000 (non-MD’s) or $50,000 (MD’s) of debt relief in exchange for a three-year commitment to serve the public health system, and will continue for this year or until the entire donation has been distributed. The deadline for application is May 1, 2023.

A challenge to the social work licensure qualifying examinations. NYS Education Law requires applicants for the LMSW and the LCSW to pass an examination acceptable to the Education Department. NYSED has stated that applicants can meet these requirements by passing the appropriate examination offered by the Association of Social Work Boards (ASWB). A candidate for the LMSW must pass the ASWB Masters examination and a candidate for the LCSW must pass the ASWB Clinical examination. There has been considerable controversy surrounding the recent release by the ASWB of its findings that 91% of white persons and 57% of Black persons eventually pass the ASWB Clinical examination. Some believe those statistics are indicative of racial bias inherent in the ASWB examinations. The CEO of ASWB has responded with a statement that “this revelation does not in any way reflect on the ability of Black candidates to demonstrate competence;” rather, “it illuminates the historical burdens of racial trauma, marginalization, and social injustice to which Black candidates have been disproportionately subjected along their journey to licensure.” Some leaders in the social work profession are now advocating the elimination of standardized testing as an admission requirement for social work practice. Licensing exams have traditionally been used by states, including New York, to determine competence of applicants to practice clinically in independent practice.

NYS Medicaid Managed Care (MMC) plans now cover preventative mental health care for minors. Effective April 1, 2023, MMC plans will reimburse for CPT psychotherapy codes when such codes are accompanied only by the ICD-10 diagnostic code Z65.9, “Problem related to unspecified psychosocial circumstances,” and when the identified patient is a person under the age of 21.  Heretofore the plans covered services only when a diagnosis of a mental or emotional disorder was present and primary, and not for “Z codes” unaccompanied by a diagnosed disorder. (Z codes could only be supplementary and secondary to the diagnosis of a disorder if reimbursement were to be sought.) The stated reason for this expansion of the definition of medical necessity to include not just treatment of diagnosed disorders but also “prevention-based” services is to “allow for reimbursement for services to be provided to the child and/or caregiver to prevent childhood behavioral health issues and/or illness.”

NYS fee for service (FFS) and MMC plans now pay for services provided by LMHC’s and LMFT’s. This change became effective March 1, 2023 for FFS plans and will be effective for MMC plans on April 1, 2023. Services rendered by LMHC’s and LMFT’s are also now reimbursable when rendered at School Based Health Centers (SBHC’s). The reimbursement rates range form $41 to $71. It’s unclear why licensed psychoanalysts (LPsa’s) are not included; they too will shortly be granted the opportunity to obtain the “diagnostic privilege.”

NYS Public Health Emergency to end, telehealth mandate remains, changes for prescribers . The date set for termination of the State PHE is May 11, 2023.  New York Insurance Law Section 3217-H continues to require insurers to reimburse for telehealth, including behavioral health services, until at least April 1, 2024. As of that May 11, 2023 however, prescribers must comply with the federal Ryan Haight Act regarding the prescription of controlled substances and in-person visits. CMS has postponed until December 31, 2024 a decision as to whether to impose a requirement for Medicare insureds that an in-person visit occur within 6 months of an initial mental health telehealth service. For now, in-person visits remain unnecessary for telehealth psychotherapy treatment of Medicare insureds. 

HEALTH LAW NEWSLETTER     Winter 2022-23, #83

Obtaining the new diagnostic privilege when it will become available (June 24, 2024) if you are already licensed and practicing as an LMHC, LMFT or LPsa in your own practice. This issue seems to me the most critical for our current LMHC, LMFT and LPsa clients (referred to in this article as “practitioners”). The “grandparenting” provision for the diagnostic privilege is referred to as the “alterative pathway.” To use that pathway, current practitioners must first determine if their previous degree programs included 60 semester hours (some older programs required fewer semester hours for the degree) with 12 credits of clinical instruction. If not, then a return to a university-based supplemental educational program appears to be required. 

Next, practitioners using the alternative pathway must determine if the clinical experience they have had so far includes three years of supervised experience in diagnosis and treatment planning. That experience may have been attained while the practitioner was working as a student intern, or as a limited permit holder or licensee working at a “facility or other supervised setting.” The latter includes work at a facility with a New York State operating certificate from one of the “O’s” (DOH, OMH, OASAS, OPWDD, etc) or at a private practice owned by an MD PhD, or LCSW (those are the license holders currently able to diagnose) with one hour per week supervision provided by a psychiatrist, psychologist or clinical social worker. If practitioners are currently lacking the necessary 3 years of supervised experience, they should now plan, sometime after June 24, 2022 and before June 24, 2027 when this “alternative pathway”expires, to work at a facility or practice of an MD, PhD or LCSW to obtain the necessary supervised experience. 

In addition to the alternative pathway, there is a “standard pathway” that has the same educational requirement as the alternative pathway, but has an experience requirement that the applicant have 2000 hours of supervised direct client contact (rather than the three years of the alternative pathway0 prior to June 24, 2025. See New York Education Law 8401-A, and Rules of the Board of Regents, 8 NYCRR 79-9.4.

Of note with regard to both of the above pathways to the diagnostic privilege is that practitioners may not obtain supervised experience at their own practices. NYSED could have used the attainment of the “R” credential by LCSW’s as a template, whereby privately practicing LCSW’s without the credential may hire an outside supervisor to obtain the necessary supervision, but apparently chose not to do so for practitioners.

A possible relaxation of enforced standards for involuntary psychiatric hospitalization in New York (and possibly for other purposes). A less stringent standard was first enunciated in a memorandum (aka “guidance document”) dated February 18, 2022 of the New York State Office of Mental Health (OMH) entitled “Interpretative Guidance for the Involuntary and Custodial Transportation of Individuals for Emergency Assessments and for Emergency and Involuntary Inpatient Psychiatric Admissions.” The guidance document suggested that the current standard being enforced that limited the application of the Mental Hygiene Law’s (MHL) removal and admission provisions only to those “who present as imminently dangerous leaves vulnerable persons at risk in the community without an opportunity for assessment, care and treatment, and can also adversely affect public safety.” 

The (OMH) then declared that it wished to “clarify”criteria for involuntary psychiatric admission to include individuals who are suspected of having a mental illness but would not be considered imminently dangerous. The document stated that a person with a mental illness who displays an inability to meet basic living needs might meet the involuntary admission standard for dangerousness to self even when there is no recent dangerous act. It further stated that “an inability to meet one’s need for food, clothing or shelter is sufficient to establish dangerousness to self for purposes of removal from the community for assessment and involuntary admission.”

New York City Mayor Eric Adams has apparently recently adopted this new or “clarified” standard in announcing a plan to have emergency responders take mentally ill persons in the City to hospitals against their will even if they do not appear to pose an active risk of danger to themselves or others, but only appear unable to meet their own basic needs by reason of their mental illness. This new interpretation of standards by both the State and City will likely be challenged in court, as lacking substantive due process requirements; after all, involuntary hospitalization is a deprivation of liberty.

Adoption of this new standard may have implications for certain reporting duties of private practitioners. SAFE Act reporting (reporting patients to criminal justice authorities under MHL 9.46 so that their access to firearms may be restricted) may now become more common if the standard as recently enunciated is actually enforced; the OMH has stated that the standard for SAFE Act reporting tracks that of the MHL standards for involuntary hospitalization, see https://nics.ny.gov/docs/guidance.pdf. And unauthorized disclosures to authorities, previously only legally advisable if a patient presented an imminent risk of danger to self or others, may now be advisable when patients appear unable to meet their basic needs even in the absence of any dangerousness.

Podcasts and other streaming media; risk management principles. An increasing number of clients ask about the risks of creating or participating in streaming social media. Usually it’s for the purpose of marketing their practices, but sometimes they’re selling some good or other service. 

The first relevant legal issue is avoidance of allegations of malpractice. Such allegations can only be made if there exists a practitioner-patient relationship accompanied by a duty of care, a predicate to malpractice. Although patients cannot unilaterally create such a relationship, it’s best to disabuse listeners whenever it is possible that they might assume one. A disclaimer should explain that the practitioner is providing educational information and not advice to individuals. Further, if the practitioner is addressing individuals, statements to them should be general or educational in nature, and not specifically directed to a particular person. Thus, it would be better not to directly respond to a listener with advice starting with “you,” (e.g., “you might try a relaxation method to help with the anxiety you’re describing”), but rather with “persons with symptoms of anxiety are often helped by learning and practicing a method of relaxation.” If practitioners avoid giving advice to individuals, then even if incorrect or even harmful information is given, there would no malpractice due to the absence of a duty of care.

 A second area of caution involves possible breaches of confidentiality. Practitioners often wish to educate using examples, i.e., case vignettes. Older legal and ethical standards assumed that there was no breach if no third party could identify a patient being described. More current standards suggest that a breach may be asserted even if patients discussed in the podcasts are unrecognizable to anyone except themselves. This it’s advisable not only to remove any identifying characteristics of patients in offering case examples, but also to change details (make up alternative facts) so that no patients can claim it was they to whom you referred (N.B. this may not be possible for certain information, for example it forecloses the use of any recordings of patients or of verbatim quotes of extended interchanges with them.) Breaches, more of privacy than of confidentiality, may also occur if participants are invited to disclose too much or too personal information about themselves. It’s best to avoid extended dialogues, and instead refer persons needing them to a private offline setting. 

Finally, it is ethically necessary for practitioners to disclose any affiliation, compensation, sponsorship or remuneration of any sort that they receive for recommending or even just mentioning any goods or services during a podcast. The Federal Trade Commission (and also anti-kickback and other laws governing federal programs such as Medicare and Medicaid ) also requires disclosure of financial relationships whenever promotion of any product or service occurs.

HEALTH LAW NEWSLETTER     Autumn 2022, #82

In New York State, parents are now obligated to provide child support to their developmentally disabled children to the age of twenty-six. Twenty-one had been the limiting age, but Governor Hochul recently signed into law a provision that requires divorced parents to provide child support to the age of 26 when (1) their children are developmentally disabled, (2) the “child” resides with the parent seeking support from the other parent, and (3) the “child” is principally dependent for maintenance on the person seeking support from the other parent. The finding of a developmental disability must be by a diagnosis and accompanying report of a physician, nurse, clinical social worker or a supervised master social worker. NYS Domestic Relations Law, Section 240-d(1). 

The law borrows the definition of “developmental disability” from New York State Mental Hygiene Law, Section 1.03 (22) that includes: (1) intellectual disability, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia, Prader-Willi syndrome, autism, dyslexia and conditions closely related to the foregoing ones; origination prior to the age of twenty-two; expectation of indefinite continuation; and constituting a substantial handicap.

NYS is a bit of a laggard on this issue, the 41st State to extend the age to which support of developmentally disabled must be provided by parents beyond 21. Adding some uncertainty to the applicability of the law in individual cases, current law does allow courts in making (or not) awards to consider whether the financial responsibility of caring for the child has been unreasonably placed on one parent. Family Court Act, Section 413(1-b). Research indicates that parents of children with special needs divorce at higher rates so the new law is likely to engender significant litigation. Namkung, et al, “The Relative Risk of Divorce in Parents of Children with Developmental Disabilities: Impacts of Lifelong Parenting.” Am J Intellect Dev Disabil (2015) 120 (6): 514–526.

Fail-first protocols by insurers now prohibited in New York State.  Both the State Assembly and Senate passed (and therefore the Governor is likely to sign) a bill that prohibits insurers from applying step-therapy, aka “fail-first” protocols to treatments for mental health conditions. Shortly, plans will no longer be able require patients to first try and fail on medications before they are able to access treatments preferred and originally prescribed by their physicians. (S5909/A3276). Currently, physicians can contest fail first protocols but it’s an administrative burden and takes time. With the passage of the bills, physicians will no longer have to make override requests to insurers in order for their patients to be reimbursed for the cost of prescribed medications when the insurers formulary would have required the patient to first try and fail on another medication. 

LMHC’s, LMFT’S and LPsa’s to be able to obtain “diagnostic privileges.” Under a new State law, S03221, licensed mental health counselors, marriage and family counselors and psychoanalysts will, if they meet certain conditions, be able to diagnose and treat all mental illnesses without the statutory necessity of consulting with physicians regarding the treatment of those with severe illnesses. The “diagnostic privilege” would first be granted in June 2024. The new law would essentially place the above licensed mental healthcare professionals who are granted the privilege on the same footing regarding their scope of licensure as psychologists and clinical social workers. There are additional educational and experiential requirements to be met before the privilege is to be granted to new licensees, and there is a “grandparenting” provision by which current licensees will be able to attain the privilege, apparently by having had certain course work or supervised experience. By my reading, the preliminary regulations that have been drafted by the State Education Department have certain deficiencies and inconsistencies that have yet to be resolved, so the prerequisites for the privilege are not yet definite as far as I can tell. 

 The privilege does give rise to certain questions. Heretofore, licensees in the above professions, though without the ability to diagnose under their scopes of licensure, were nevertheless able to “use accepted classifications of signs, symptoms, dysfunctions and disorders” (NYS Education Law 8411(3)) in their “assessment and treatment of nervous and mental disorders.” (Education Law Article 163) Practically and in my experience, this was a distinction - assessment using accepted classifications of disorders being allowed but diagnosis not- without a difference. However, it may be that with the passage of this new law and the additional requirements imposed on licensees to obtain the privilege of being able to diagnose, that those licensees without the privilege will, by way of enforcement, be prohibited from diagnosing. (It appears that the limitation will be imposed in exempt settings, i.e., facilities with State operating certificates, but it remains to be seen whether it will in private settings.) 

Other questions include: Will LMHC’s, LMFT’s, and LPsa’s now be included in NY State’s Freedom of Choice Law (Insurance Law 3221(L)(4)(A) that requires that insurers pay for services rendered by them (that law now includes only PhD’s and LCSW/R’s)? Will those licensees become Medicare eligible? I guess another questions is: Why weren’t licensed creative arts therapists included in the new law; previously their scope of licensure matched that of those who are soon to be granted the diagnostic privilege.

Medicare’s new behavioral health code and relaxed requirements for incident to billing. The 2023 Medicare Physician Fee Schedule creates a new code that allows psychologists and clinical social workers to bill for “general behavioral health integration” (GBHI 1). The new code is designed to allow billing once a month for activities such as “initial assessment,” “care planning” and “facilitating and coordinating treatment” that focus on “care management.” The value of the new code will match that of CPT 99484, currently paying $41.35 for the new 20 minute service. 

       Medicare has long allowed incident to billing by physicians, psychologists and psychiatric nurse practitioners (but not LCSW’s), though its applicability to psychotherapy was sometimes questioned. One of the previous requirements of incident to billing was that the supervisor of the auxiliary personnel who were providing services must provide “direct supervision” to such auxiliary personnel, interpreted as the supervisor being on site and in the same suite as the personnel at the time a service was being provided. Under the new Fee Schedule, with a stated explicit objective of addressing the behavioral health clinician staffing shortage, supervisors may now provide “general supervision,” that is, the supervisor must authorize the service but need not be on site when it is delivered. 

New State legislation to protect Medicaid providers from unfair audit practices. A bill has passed the New York State Senate that is intended to prevent the Office of the Medicaid Inspector General (OMIG)from using certain tactics in its audits of Medicaid providers, including Medicaid managed care providers, A07889/ S04486-B. OMIG audits, as with audits by commercial insurers, sometimes demand refunds (“clawbacks”) of fees paid for services due to minor technical errors in records. In my experience, such instances might include missing signatures, failure to record start and stop times (though including CPT codes signifying length of sessions), and failure to state whether a service was rendered in-person or virtually. OMIG in particular has enforced the findings of audits by citing its ability to criminally prosecute as fraud even such administrative defects. The new law, if passed by the Assembly and signed by the Governor, would prevent clawbacks based on technical defects except where OMIG had informed a provider of the defect and given them 30 days to correct it. The legislation was supported by many health care associations, including the Medical Society and State Psychiatric Association. 

HEALTH LAW NEWSLETTER     Summer 2022, #81

Requirement of continuing education on boundaries for psychotherapists.  The New York State Board of Regents will soon consider and likely approve a requirement that all psychologists, social workers and mental health practitioners (LMHC’s, LMFT’s, LCAT’s and LP’s) complete three hours of continuing education credits on issues related to maintaining appropriate boundaries with patients and clients. The Board believes that although, “professional education programs ... include overviews of professional ethics that underlie those professions and discussions about transference and countertransference, licensees may be faced with real world challenges when engaged in practice that go beyond those covered by these educational requirements. Newly licensed and experienced professionals may blur the boundaries that separate the professional from the personal.” Examples given by the Board include clinicians leaving multiple inappropriate voicemail messages, sending “inappropriate text messages ... causing patients to think that the licensee and patient were friends,” and leaving text messages for patients “which were not therapy related.” 

It has indeed been my experience that psychotherapists are sometimes uncertain about maintaining boundaries with patients when using social media and messaging, especially given the expectations of some younger patients. I guess it is the hope of the Board that an educational approach may be ameliorative in such circumstances. On the other hand, it has been my experience as a defense attorney that it is not a lack of knowledge that causes most sexual boundary violations and other exploitative dual relationships.

May a psychotherapist have a sliding fee scale by which different patients pay different fees for the same service? This is a question commonly asked, and not one that lends itself to a simple answer, though I guess an answer would be, “Yes, but only if certain conditions are met.” New York State insurance regulators have opined with regard to an aspect of this issue, which is sometimes called the issue of “dual fee scheduling,” that practitioners may not “charge uninsured patients lower rates than ... charge(d)... insured patients for the same services...” because “the charging of lower rates to non-insureds or to patients who pay by cash may suggest that the ... usual and customary rate is not being accurately reported to the insurer,... which may be in violation of NY Penal Law 176.05” (Insurance Fraud). See NYS DFS Opinion, December 10, 2000. 

But does that mean that a practitioner may not set different fees for different patients that are in part based on patients’ insurance coverage? In my opinion, therapists may set different fees in part based on insurance coverage. But the differential should be based not just on insurance coverage, but rather should be part of an objective scale that includes other criteria for calculating a fee for a given patient such as family size, earnings, debt and wealth, health, and other necessary expenses.  Another way to ensure that your sliding fee scale would not be considered fraudulent would be if your basic fee, that is, the fee that “slides” up or down given patients’ particular circumstances is also the average fee that you charge all patients.

 Notwithstanding the above, waiving or forgiving deductible or co-payments should be avoided, as doing so might well be considered fraudulent by out of network insurers. Whatever fee is stated on a bill given to a patient or on a claim submitted to an out of network insurer should be the fee that the practitioner uses his or her customary good faith efforts to collect in full. Use of a collection agency, or suing for unpaid fees is not required however, as long as your collection practices are consistent across all patients, those who pay on a sliding scale and those who pay the basic fee. 

Federal telehealth flexibility extended. In the Federal omnibus spending bill signed in March, Congress extended Medicare telehealth reimbursement waivers related to the COVID-19 Public Health Emergency (PHE) to July 15, 2022. They may be extended even further if the PHE continues. The waivers include that telehealth services: may be delivered to patients wherever they are, including at their homes (previously they had to be at clinics); may be audio only (previously they had to be audio-visual); and need not include an in-person visit within 6 months of the beginning of treatment, and annual in-person visits thereafter. In addition, Congress is considering the Telehealth Extension and Evaluation Act that may make the above flexibilities permanent. 

Progress in interstate practice. New York State has just introduced legislation to join PsyPact allowing participating psychologists to practice in all the states, currently 33, that have joined the Pact. Senate Bill 2394  Last year the Department of Defense issued a grant to the Council of State Governments (CSG) and the NASW to develop an interstate licensure compact for social workers. The CSG began drafting model legislation in April 2022. Nine states have signed the Interstate Counseling Compact (for licensed mental health counselors) into law, but so far New York has not indicated any interest in joining. 

New York City postpones enforcement of its salary transparency law. Last year the City passed the law that was to have taken effect on May 15, 2022, but that date has been changed to November 1, 2022. On that date it will be required of all employers of four or more employees located in New York City that in advertising for both employees and contractors, they state the minimum and maximum compensation range, annually or hourly, for the position, and the range “must extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job...”  The is no monetary penalty for a first violation as long as the employer corrects it within 30 days. 

Changes in the new DSM-5-TR. Not much has changed in the revision, at least not much that affects diagnosis or getting paid for treatment Most changes are in terminology. One new diagnosis has been added, in the category of “Trauma and Stressor Related Disorders,” i.e., “Prolonged Grief Disorder, F43.8.” From commentary, it appears to be a controversial change as it is interpreted by some as further pathologizing grief. There are some new codes for self-destructive behaviors that do not meet criteria for an official diagnosis, but that may enhance the precision of, and possible likelihood of reimbursement for, official diagnoses, for example “Suicidal Behavior” as a behavior that accompanies a diagnosis of a depressive disorder, or “Non-Suicidal Self-Injury” as behavior, e.g., cutting, that accompanies a diagnosis of a personality disorder.

HEALTH LAW NEWSLETTER     Spring 2022, #80

Termination of the “agency exemption” in New York State and possible expansion of the scope of licensure of certain mental health practitioners.  Licensed mental health practitioners, a statutorily defined category of masters level clinicians that includes mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts are not licensed to diagnose mental and emotional disorders. Education Law Sections 8402-8405. Rather, in a distinction with symbolic significance but without much general practical difference, their scope of licensure allows them to “assess” and “evaluate” most such disorders, including using DSM and ICD criteria in making their assessments. An exception is “severe mental illnesses” as defined by State statute ( Education Law Section 8407.1); that law restricts mental health practitioners from treating the severely mentally ill without first consulting with a physician. In contrast to mental health practitioners, licensed clinical social workers and psychologists (as well as nurse practitioners in psychiatry and psychiatrists of course) have within their scopes of licensure the capability of diagnosing and treating all mental and emotional disorders with verbal and behavioral interventions. Unlicensed persons may not diagnose or treat such disorders unless they are otherwise “authorized” to do so under supervision; that authorization extends only to limited permit holders and student interns.

However, the above limitations regarding diagnosis and treatment that are imposed on mental health practitioners and the above prohibitions placed on unauthorized unlicensed persons in private practice settings have not been imposed at “exempt settings,” that is programs operated, regulated, funded, or approved by the Department of Mental Hygiene (OMH, OPWDD & OASAS), Department of Health, Office of Children and Family Services and some other State agencies. At such settings, currently, mental health practitioners may diagnose and treat all mental and emotional disorders and so may unlicensed unauthorized persons, though those in the latter category must be supervised by licensed personnel, 14 NYCRR 599.9.

Exempt settings and their representatives have argued that their exemption is necessary because without it they would be unable to staff and fund their programs and would suffer a “workforce crisis,” e.g., see the website of The Coalition for Behavioral Health. Professional associations have generally taken the opposite position, arguing that “it is discriminatory to provide two tiers of mental health services determined by whether it is a state funded program or reimbursed through private pay.” Website of the New York Society for Clinical Social Work, Legislative News.

The “agency exemption” was first passed in 2002, and was meant to be temporary. Nevertheless, it has been extended without interruption since then, most recently by Chapter 159 of the Laws of 2021. However, the extension is scheduled to expire on June 24, 2022. Starting then, as it is in private practice settings, an individual will need to be licensed or authorized in order to be employed in a State program and will be limited by the scope of their licensure. The loss by State programs of their exemption will not affect individuals who were hired prior to June 24, 2022 and who will be allowed to continue in employment at such programs.

 A response to the termination of the agency exemption has been the introduction in the New York State legislature of bills to expand the scope of licensure of three types of mental health practitioners, LMHC’s, LMFT’s and LP’s, (for some reason, LCAT’s are excluded) to include the specific ability to “diagnose and to develop assessment-based treatment plans” once they take twelve credit hours of continuing education in those topics or provide evidence of having conducted such activities at State programs previously, See A.6008-A/S5301-A. 

Expansion of the scope of practice of licensed behavior analysts (LBA’s) in New York State . Heretofore, licensed behavior analysts were permitted to provide their services only to “persons with autism and autism spectrum disorders and related disorders.” (ASD’s) NY Education Law Section 8802. Also under that law, LBA’s could provide their services only “pursuant to a diagnosis and prescription... from a person who is licensed or otherwise authorized to provide such diagnosis and prescription pursuant to a profession enumerated in this title...” Persons licensed to provide such diagnosis include physicians, nurse practitioners, clinical social workers and psychologists. 

On December 31, 2021, Governor Hochul signed a bill significantly expanding the scope of practice of LBA’s. Now LBA’s may provide their services to all “individuals with behavioral health conditions that appear in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association...” not just to those with ASD’s. New York State Bill A3523/S1662.  The new law also added a new requirement that LBA’s consult annually with the diagnostician/prescriber of their services, i.e., “licensed behavior analysts providing services pursuant to a prescription or order... shall provide a report at least annually regarding the status of the individual served to the licensed person prescribing or ordering such service or more frequently, if needed, in order to report significant changes in the condition of the individual.” (ibid). The new law takes effect in June 2023.

Is an in-person visit currently necessary before prescribing a controlled substance in New York State?  As of now, under federal regulations there continues to be a national public health emergency caused by COVID, see https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx That emergency preempts the requirement of the federal Ryan-Haight Act that an in-person visit is necessary prior to a physician or other prescriber prescribing a controlled substance, see "Telemedicine" at https://www.deadiversion.usdoj.gov/coronavirus.html . A federal bill has been introduced that would extend the waiver of the Ryan-Haight Act another two years, the Telemedicine Extension and Evaluation Act. 

However, a regulator at the New York State Bureau of Narcotic Enforcement recently informed me that it is the Bureau’s opinion that the State has never waived its requirement of such a preliminary in-person examination. The regulator cited 10 NYCRR 80.63, which in pertinent part at (d)(1) reads “No controlled substance prescription shall be issued prior to the examination of the patient by the practitioner except as otherwise permitted by this subdivision,” and at (d)(4) “A practitioner may prescribe a controlled substance to his or her patient after review of the patient's record if the record contains the result of an examination performed by a consulting physician or hospital and such record warrants the prescribing.” Apparently the Bureau reads “examination” as necessarily being in-person. In my experience, many psychiatrists are ignorant of this interpretation by State regulators.

HEALTH LAW NEWSLETTER     Winter 2021-22, #79

Remaining Emergency Regulations in New York State. Most COVID emergency regulations that were promulgated in March 2020 by then Governor Cuomo that changed, usually by relaxing, licensure and related requirements for professionals, expired on June 25, 2021. Some changes have been continued or re-issued though. Clinical experience and supervision requirements imposed on permit holders and other supervisees in social work and the mental health professions (those professions include mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts) that prior to the pandemic were required to be in-person may continue through remote means, i.e.. characterized by NYSED as using “distance technology.”  See FAQ 20 http://www.op.nysed.gov/COVID-19FAQS.htmlnder. The same appears to be true for limited permit psychologists and behavior analysts but the guidance is less clear, see FAQ’s 44, 45, 46 at the above, seeming to state a “don’t ask, don’t tell” policy of the licensing boards for those professions. Executive Order No 4 issued on September 27, 2021 allows physicians, nurse practitioners, and social workers (and some other physical healthcare professionals) licensed in other states to practice in New York due to continued staffing shortages. Apparently there is no shortage of psychologists, mental health professions (as defined above) or licensed behavior analysts, as out of state licensees in those professions are no longer permitted to practice in New York without first obtaining licensure here. 

Confusion regarding telehealth for Connecticut residents by out of State licensees. As New York State did during the pandemic, so Connecticut did as well, allowing out of State licensed healthcare professionals to practice in Connecticut. Apparently the outcome of this relaxation was a success because on May 11, 2021, pursuant to an order signed by Governor Ned Lamont, Connecticut announced that though June 30, 2023, “Section 5(b) of Executive Order 7G allows a clinician licensed in another state to treat someone in CT through telehealth without getting licensed in CT.” See https://portal.ct.gov/Coronavirus/Covid-19-Knowledge-Base/Telehealth Thus it appeared that the relevant emergency regulation permitting out of state licensees to practice in CT that was scheduled to expire on July 20, 2021 would be extended for two years. But apparently the Governor neglected to consult with the Commissioner of Public Health because more recent guidance from CT indicates that the Commissioner of Public Health has not issued an order that is necessary for the Governor’s Executive Order to be effected. I guess this will be clarified shortly. It may just represent a lag between the Governor’s office and regulators or perhaps ongoing tension about the extent of the governor’s emergency powers. 

Progress in interstate practice. When we have represented licensed professionals (almost all psychotherapists) accused of practicing in a state in which they are not licensed, the rationale given by regulators for the prosecution (always civil, not criminal, in my experience) is that their state’s citizens need recourse to their state’s licensing boards and courts in order to be protected from professional misconduct, incompetence and negligence, and that such recourse is lacking when a professional treating them is only licensed and has an office in another state, not their state. For example, neither a licensing board in California, nor courts in that State, have jurisdiction over a therapist licensed only in New York State who treats a California resident by telehealth. Some states have recently resolved this issue by requiring registration with their licensing boards and the appointment of a registered agent by out of state licensees, and with such registration and appointment, allowing out of state licensees to practice telehealth in their states without obtaining full licensure there. Such registration and retaining of a registered agent subjects the out of state licensee to the jurisdiction of the licensing board and courts of the state in which they are thereby permitted to practice. Florida, Arizona and West Virginia have recently taken such action, the former two including as a reason for the change that they wish to accommodate their snowbirds by allowing them access to their healthcare providers in their home states while they winter in warmer climes. See https://flboardofmedicine.gov/licensing/out-of-state-telehealth-provider-registration/ https://azgovernor.gov/governor/news/2021/05/governor-ducey-signs-legislation-dramatically-expand-telehealth and https://code.wvlegislature.gov/30-1-26/

And so has New Jersey begun an experiment in interstate practice. Somewhat similar to the above three states, New Jersey has recently implemented a policy of apparently allowing out of state licensed professional entities to practice telehealth in NJ if they register in NJ and appoint a registered agent there. The particulars of the policy are a bit unclear however. The fee required by NJ for registration there is more expensive than elsewhere, $1500 annually, and there is a deadline for registration, January 3, 2022. The reason for the deadline is unstated; it was extended once and may be again. See https://dohlicensing.nj.gov/telehealthtelemedicine/

New York City expands the Fair Chance Act (FCA). The FCA limits the type of inquiries that employers can make regarding criminal history during the hiring process. Changes in it took effect on July 29, 2021 that expand the protection afforded to job applicants. Now, employers are required to conduct background checks in a piecemeal fashion. Initially when employers assess a candidate’s qualifications, the employer may not undertake any review of criminal history. Then depending on the outcome of that assessment, the employer may make a conditional offer of employment to the applicant. Only after a conditional offer is made may a check of criminal history be conducted. The conditional offer may then be rescinded only if there is a direct conflict between the applicant’s criminal history and the prospective job, or if employing the applicant would present an unreasonable risk to property or persons.

It should be noted that professional misconduct for licensed professionals in New York State includes conviction of a misdemeanor or felony, New York State Education Law §6530 (9)(a), and that the New York State Board of Regents publishes on its website a listing of all professionals who have been sanctioned since 1994. Thus a review of a licensees professional status and disciplinary history will reveal any recent criminal convictions, see http://www.op.nysed.gov/opd/rasearch.htm  

Required disclosure under the new federal “No Surprises Act.” Although effective January 1, 2022, it may take a while (a couple of months) before enough is known and disseminated about the interaction between mental health practice and the NSA in order for definitive advice to be given. In the meantime, in my opinion, practitioners should give at the outset of therapy (immediately for current patients) a written notice on their letterhead to each of their (a) uninsured self-pay patients and (b) out of network patients who are effectively self-pay, that is who intend not to submit claims to their insurers, with the following information on that notice (1) the patient’s name, diagnosis (TBD may suffice), and proposed type of treatment, e.g., individual psychotherapy (2) the fee per session, (3) the frequency of sessions, (4) the total estimated length of treatment and (5) the total estimated cost of treatment. It may be best to err on the side of lengthier estimates. Ranges may be acceptable. Estimates should be revised annually but new ones given to patients before exceeding the estimates, and especially before the total estimated cost is exceeded.  Patients should be told, preferably in writing, that the fee per session is subject to change and that because of individual differences in responses to mental health treatment among patients, frequency and length of treatment, and hence the total estimated cost are really just educated guesses at a point in time, and might change significantly over the course of treatment. The current form recommended by CMS is at https://www.cms.gov/regulations-and-guidancelegislationpaperworkreductionactof1995pra-listing/cms-10791 The NASW has tried to adapt the form for psychotherapy practice, see http://www.socialworkblog.org/wp-content/uploads/Model-Good-Faith-Estimate.pdf 

HEALTH LAW NEWSLETTER          Autumn 2021, #78

 The possible expansion of telehealth in New York.

            Bills are pending in the State legislature that would mandate that all insurers permit beneficiaries to use out of network benefits for telehealth (not just in-network benefits as is currently the case), and  that telehealth services be reimbursed at the same rate and to the same extent as in-person services, (S5505, A6256).  The New York Health Plan Association opposes the bills on the basis that the use of technology should benefit consumers through lowering costs, and that mandatory and equivalent coverage for telehealth would represent “... a revenue maximizing opportunity for providers, which could incentivize unnecessary care and services.”  NYHPA, Memorandum in Opposition May 8, 2021.

            It appears that with the exception of the expansion of PSYPACT for psychologists, with which New York has chosen not to participate, interstate licensure restrictions will return as the pandemic ends. Relaxed policies enacted in many States during the pandemic have largely expired.  Locally, Connecticut is an exception having extended until June 2023 its allowance for out of State licensees to practice telethealth there.  Florida remains in the vanguard, with a telehealth license predating the pandemic that allows registered out of State licensees to practice telehealth there.

Parity law enforcement in New York.

            United Healthcare, United Behavioral Health and Oxford have agreed to pay $15.6 million to settle allegations that they violated the federal and New York State mental health parity laws.  The allegations included that the companies (I) reduced reimbursement rates for out of network non-physician mental health providers by 25-35% without imposing the same cuts on physical healthcare providers, and (ii) audited mental health providers in a manner that was “broader and more aggressive” than programs for reviewing medical and surgical benefits.  Part of the settlement agreement requires United to cease issuing denials for coverage of psychotherapy benefits in New York State until 2023.

New employer mandates for COVID safety plans. 

            Effective August 5, 2021, the State Commissioner of Health designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State's HERO (Health and Essential Rights ) Act, which requires all employers to implement workplace safety plans in the event of an airborne infectious disease to prevent workplace infections. The NY HERO Act mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. Under the law, all employers are required to adopt a workplace safety plan, and implement it. Employers can adopt a model safety plan as crafted by the New York State Department of Labor, or develop their own safety plan in compliance with HERO Act standards.  See https://dol.ny.gov/ny-hero-act for the model plan. Of note is that the Act applies to employers of any size and also to employers who retain only independent contractors (1099's) and not formally designated W-2 “employees.”

ESA (Emotional Support Animal) certifying letters.

           It is generally considered by ethics committees to be a dual relationship for a psychotherapist to evaluate a patient, purportedly objectively (therapists are assumed to have a positive bias), for an ESA.  Due to that ethical issue, most ethics committees recommend that therapists decline requests by patients for ESA letters and instead refer patients to an independent objective mental health evaluator.  However, some airlines and landlords require that the person requesting an ESA be under the care of a mental health professional, and that it be that treating professional who certifies them for an ESA, so patients can be caught in a bind.

            Practically speaking, patients, who are the only ones with standing to do so, have no motivation to complain if their therapists do certify them for an ESA, and I have never had to defend a therapist against an allegation of a boundary violation in such circumstances, although I believe a great many of them do certify ESA's for patients.  I guess that some therapists certify patients for an ESA because it's the path of least resistance with little risk of any repercussions.

            A couple of definitional issues of which to be aware if considering whether to certify a patient for an ESA are (1) The patient should meet the definition of “disabled” under the Americans with Disabilities Act, under which a disability is defined as not just a diagnosable illness, but rather in addition to a diagnosed illness, a related and accompanying physical or mental impairment that substantially limits a major life activity.  Many diagnosed mental or emotional disorders do not limit a major life activity. Some major life activities that may be related to mental health conditions are caring for oneself, eating, sleeping, learning, reading, concentrating, thinking, communicating, and working; an ESA helps to alleviate the disability associated with the diagnosis, and (2) An ESA is not a “Service Animal,” with that term being limited to animals, almost always dogs, belonging to a patient where the dog  (for patients with psychiatric diagnoses, the animal is usually called a “Psychiatric Service Animal”) has been individually and specifically trained to perform tasks that assist the disabled individual to detect the onset of psychiatric episodes and lessen their effects, e.g., tasks performed by psychiatric service animals may include reminding the patient to take medicine, providing safety checks or room searches, turning on lights for patients with PTSD, interrupting self-mutilation by persons with dissociative identity disorders, and keeping disoriented individuals from danger.

            The only negative outcome I have seen is when as a result of certifying an ESA for a tenant, a clinician is then subpoenaed as a witness by a landlord who contests the necessity for the animal.  In such situations, you would want there to be some supporting research and/or theory for you to have approved the ESA for that particular patient with his or her particular diagnosis.  You also might wish to have in place an agreement with the patient regarding terms and conditions should you become involved in any consequent legal proceeding.

HEALTH LAW SUPPLEMENT Summer 2021, #77

Cyberattacks and insurance. Clients are asking about the advisability of purchasing cyberinsurance policies or endorsements. Professional liability (malpractice) coverage protects against data breaches that result in malpractice claims by injured patients, but they provide no protection for cybersecurity lapses that do not trigger malpractice claims. According to the Cybersecurity and Infrastructure Security Agency, 91 healthcare providers suffered cyberattacks in 2020, up from 50 in 2019. In 2020, 20 billion dollars was lost in the healthcare industry due to downtime caused by ransomware attacks. Attacks are generally against large healthcare centers and not private practices. Medical devices such as x-ray machines and defibrillators are often a point of entry for hackers because they are generally less secure than the systems that store patient records.

Attacks are typically precipitated by: phishing emails that contain a malicious attachment; clicking on malicious links; and viewing ads that contain malware. Some believe that the recent increase in attacks is in part due to increased vulnerability from providers accessing data remotely while working on unprotected systems during the COVID pandemic.

Attackers usually link unwitting users to their websites by using an address that looks familiar such as Microsoft or Google, but is actually the scammer's site. Such scams can be avoided by carefully examining URL’s, or website addresses. URL’s should be read from right to left because it is the right side that contains information about where the website originates, and whether or not it's actually what it appears to be. It's a good idea to avoid clicking links from email, and instead to type out the web address whenever possible. Backing up data locally is a means of minimizing the impact of a cyberattack because then data remains accessible even after the attack. Cloud backups do the same, but downloads may be more time-consuming and costly.

Cyberinsurance coverage for attacks may be worth the additional expense but usually comes with conditions and limitations. It typically provides coverage for costs only after the insured notifies the insurer of the attack. Insurers may require notification of law enforcement, and pre-approval of any ransom paid.

New York’s telehealth law now includes audio-only communication. Since 2015, New York State has had a telehealth law that mandates that insurers provide in-network coverage for services rendered by telehealth if that same service would be covered if rendered in-person. NY Public Health Law Article 29G. New York Bill S.8416/A.10404 passed in 2020 changes the definition of telehealth to include audio-only.

The sponsors of the bill wrote: “In response to the COVID-19 pandemic, telemedicine is again at the forefront of the healthcare landscape. As the crisis transforms - and often mandates - changes to the way the medical community interacts with patients and caregivers, both video and audio telemedicine have become integral components of the delivery of care. The law currently mandates that use of telemedicine include both audio and video services. However, we must recognize that many vulnerable residents in our under-served communities may not have access to video-enabled devices. This bill will amend the current law to allow the use of audio-only telemedicine services in order to ensure that patients in every corner of New York State have the ability to access care and speak with a medical professional remotely.”

The new law leaves New York providers in a quandary regarding CPT coding of their audio-only telehealth services. AMA CPT coding requires specific designation of telehealth by the use of modifiers, either “95" or “GT” after the ordinary code for the service if it were rendered in person. But, as defined in the CPT, those two modifiers are for use only for services “rendered via a real-time interactive audio and video telecommunications system.” For now, it seems that different insurance companies are giving different instructions to practitioners about how to acceptably code audio-only sessions, so it’s best to ask insurers about coding.

Should I bill for a consultation when I don’t then offer treatment? Probably not in my opinion. After initial consultation, a health care practitioner is free to decline to offer treatment to a prospective patient and in doing so prevent the creation of a therapist-patient relationship. Because in such cases there is no therapist-patient relationship created, the practitioner has no duty to support continuity of care, i.e., no obligation not to abandon. In a relationship that involves consultation only, neither is there any obligation to offer referrals, although many practitioners do offer them in such circumstances. While there is nothing improper about billing for only a consultation as long as the practitioner clearly describes the fee as being only for such, billing for services in general is considered one indication of the creation of a therapist-patient relationship. In addition, I have noticed that when therapists charge prospective patients a fee for a consultation which does not eventuate in an offer of treatment by the therapist, patients often feel aggrieved and may complain to a licensing board about perceived misrepresentation, incompetence or of a “bait and switch” tactic by the therapist. They may also post negative comments online. Not charging seems largely to avoid those outcomes. Adopting such a policy however, puts greater stress on the initial telephone contact to screen out inappropriate prospective patients.

Risk management and boundaries. I guess that I’m preaching to the choir in addressing this issue with those who read this newsletter, but I continue to defend a significant number of psychotherapists alleged to have violated boundaries, where I believe that the allegations might have been prevented had certain risk management strategies been used.

At the outset of treatment when the therapeutic contract is made, it is advisable to inform certain patients of the boundaries of the therapeutic relationship in order to disabuse them of expectations that are of a personal rather than professional relationship. With certain exceptions, e.g., exposure therapies, perhaps some adolescent patients, restrict meetings with patients to in-office or videoconference sessions; for the latter, locate yourself and ensure the patient is located in a private setting. Don’t promise what you cannot deliver in terms of availability and support, e.g., “I’ll always be there for you;” there will inevitably be times when you are unavailable to the patient and times when you will be perceived as unsupportive. Self-disclose only when it’s for a legitimate and specific therapeutic purpose; usually requests by patients for personal information about therapists should first be met with re-direction to the meaning of the inquiry. Don’t discuss other patients with any identifiable details and as with self-disclosure, only with accepted and specific therapeutic purpose. Don’t use terms that may cause patients to misunderstand the therapist-patient relationship, i.e., no terms of endearment, no signing correspondence with “love.” Don’t hug or kiss patients even if you think the contact will be understood as platonic, and especially don’t if a patient requests it. Don’t accept gifts except perhaps infrequently and of small value. (The prior two caveats may be relaxed in therapy with children.) If you believe patients may have misunderstood the boundaries of the therapeutic relationship, then consult with a colleague about the appropriateness of continuing with therapy, and if you haven’t already, carefully document your assessment and handling of a patient’s issues with the maintenance of boundaries. In long term treatment especially, document patients’ progress to avoid allegations that treatment is primarily self-serving to the therapist, a fostering of dependency, rather than focused on patients’ progressing, even if slowly, toward stated treatment goals.

HEALTH LAW SUPPLEMENT          Autumn 2020, #74

New and revised CPT codes. Codes for mental health services have been revised or added for: cognitive function intervention services (usually for older patients with a focus on compensatory strategies); online assessment and management; telephone assessment and management; and screening, brief intervention and referral to treatment services (SBIRT).  Notable is that these online and telephone assessment and SBIRT codes are for use by both physicians and non-physician providers and that they allow for brief periods of assessment and treatment, for as little as 5 minutes.  For example, G2061 is for use when a patient contacts a practitioner (the patient must initiate the contact) online with a mental health issue, and a therapist performs an intervention of 5-10 minutes.

Psypact expansion. Soon Pennsylvania and Virginia will participate in Psypact, the program that allows psychologists to practice in multiple states.  States already participating include Arizona, Colorado, Delaware, Georgia, Illinois, Missouri, Nebraska, New Hampshire, Nevada, Oklahoma, Texas and Utah.  Psychologists (not other professions) licensed in one of those states may apply to be permitted to practice in all of them either by telehealth or, temporarily, in-person.  If approved, then for a fee, they are issued an “interjurisdictional” license.  In addition to licensure, approval requires a doctoral degree, no history of professional disciplinary sanction, and no criminal record.  New York has not indicated any interest in joining the pact; doing so requires some ceding of State sovereignty.

Medicare and Medicaid providers should retain patient records for 10 years. Although New York State mandates that healthcare practitioners must retain records of adult patients for six years after treatment ends (Rules of the Board of Regents 29.2(a)(3)), practitioners who accept Medicare or Medicaid insurance, including through Medicare Advantage Plans and Medicaid Managed Care Plans, are now advised to retain treatment records of their Medicare and Medicaid insured patients for 10 years.  In a 2019 decision, Cochise Consultancy Inc v US, the US Supreme Court, ruled that the Federal False Claims Act allows actions against providers for up to 10 years when there are allegations of fraudulent billing.  Presumably, to defend oneself against such allegations, one should have records.  Without them, defense would be problematic at best.

Stephen’s Law. Steven C, a patient at a New York State OASAS clinic died of a drug overdose in August 2018.  He had signed a  release  that granted access to medical information to his mother.  She was, however, not notified by the clinic of his recently missed appointments and positive drug screens.   New York State legislators thought it an appropriate response to this tragedy to pass a law that  would require that OASAS programs notify every patient of their right to identify individuals who should be contacted in case of emergency.  The intent of the legislation is to codify what is now considered “best practice” in order to provide a consistent approach statewide.  The law as passed by the Assembly and Senate (A 9536, S4741B) and expected to be signed shortly by the Governor requires that (1) patients be encouraged to name and allow treatment  information to be disclosed to emergency contacts, and (2) treatment programs develop recommended protocols for communicating with emergency contacts.  This new law may approach, albeit indirectly, the imposition of a legal duty to protect patients with alcohol and substance use disorders from self-harm by disclosure of any heightened risk status to authorized contacts.

Undue influence and exploitation for financial gain in concierge medical practice.  The Office of Professional Medical Conduct found that a physician had exercised undue influence in his concierge practice by: (1) not informing patients in advance what his fees were; (2) collecting credit card information in advance of informing patients about fees; and (3) providing services to patients on a flat fee basis, $3,000 to $5,000 for apparently relatively brief consultations in their hotel rooms.   An appeals court confirmed the finding, G v NYS Board for Professional Medical Conduct, 96 NYS 379 (3rd Dept, 2019.) I have noticed in my disciplinary defense of health care professionals before New York State licensing boards that the boards carefully review fixed non-refundable fees by professionals for what the board believes may be indications of undue influence and exploitation. 

New York State removes its religious exemption for vaccinations.  New York State law requires that students be vaccinated before admission to schools, Public Health Law 2164.  The law previously allowed exemptions for medical and religious reasons.  The religious exemption has now been removed (A2371/S2994, 2019), leaving only the medical exemption.  New York is now one of only five states that does not have a religious exemption, the others being Maine, Mississippi, West Virginia and California.  Some fifteen states (not New York) even add an exemption for “personal and philosophical beliefs.”   Some states are currently debating mandatory vaccinations of all citizens, not just students, against COVID. 

Governor Cuomo vetoes extension of mental health Freedom of Choice Law. New York’s current Freedom of Choice law currently requires commercial insurers to provide reimbursement for mental health services by psychologists, LCSW/R’s and nurse practitioners as well as physicians, NY Insurance Law 3216.  The Assembly and Senate of the State voted to extend that mandate to the four State-licensed masters-level “mental health practitioners,” i.e., LMHC’s, LMFT’s, LCAT’s and LPsa’s (see A670-A, S6212-A).  However, the Governor vetoed the bill because he believed it might increase insurance costs.  While many commercial insurers elect to reimburse for services provided by those mental health practitioners, they are not required by law to do so.

Whither out of network benefits for teletherapy once the pandemic ends?  New York State law requires insurers to cover telehealth service for mental health or substance use disorder treatment if the service would have been covered if the insured went to a provider’s office or facility.  NYS Public Health Law Section 29-G. However, it allows insurers to require that telehealth services, in order to be reimbursed, be provided by an in-network provider.  During the pandemic most insurers have paid for out of network teletherapy but there is no law or regulation that requires them to do so, and no assurance that those that now reimburse for teletherapy will continue to do so as office-based practices resume and after the pandemic ends.

            The NYS telehealth mandate does not apply to self-insured group health plans (aka self-funded plans), ones in which the employer itself, rather than an insurance company, assumes the financial risk for providing health care benefits to its employees. Self-funded plans many not be evident as such because insurers and managed care companies often serve as third-party administrators (aka TPA’s) for such plans. 

            The answer to the above question is a critical one for the seemingly significant number of psychotherapists who are out of network and who are closing their physical offices in anticipation of offering their services in the foreseeable future exclusively by telehealth.           

HEALTH LAW SUPPLEMENT          Summer 2020,  #73

                         Will COVID be the cause of a paradigm shift toward delivery of mental health services by  telehealth?   The American Psychiatric Association in May found that 86% of psychiatrists responding to a survey were seeing 75% or more of their patients by telehealth means, presumably with similar efficacy of treatment as that for office visits.  The survey also found that for telehealth visits, the rate of no-shows was less and the rate of patient satisfaction was higher than for office visits. Consequently, on June 1, the Association wrote to the Administrator of the Centers for Medicare and Medicaid Services (CMS) asking that the regulatory flexibility extended by CMS to telehealth during the pandemic be made permanent. 

            That flexibility has included: the removal of geographic and originating site limitations (not just in under-served and rural areas); allowing all mental health services to be rendered remotely (including group therapy); removing restrictions on frequency of telehealth services (currently some services may be rendered only once weekly); maintaining parity of payment for telehealth services with in-person services; allowing use of audio only care (not requiring services to include both audio and video components); and allowing supervision of trainees to be conducted remotely (currently such supervision must be “direct,” i.e., in person).

            If CMS does make these changes permanent, then if precedent is a guide, Medicaid and commercial insurers will ultimately follow suit, even if with some delay.

            Will COVID result in all commercial insurance companies being legally compelled to reimburse for telehealth?   In 2014, New York State enacted legislation requiring that health insurers provide coverage for services provided by telehealth where the service would otherwise be covered as an in-network service if rendered face-to-face.  However, the law did not apply to out of network benefits, or under ERISA (the Employee Retirement Income Security Act) to large multi-state employers, union plans and self-insured businesses.

            Now before the US House of Representatives is HR 6644 which would temporarily require all group health plans and insurers - with no exceptions - to cover telehealth services if the service would otherwise be covered if rendered in-person.  The legislation would expire when the COVID pandemic ends. Notable about the legislation is that it is supported by the “Mental Health Liaison Group” which includes virtually all professional and consumer organizations representing mental health practitioners and consumers (letter to Rep. Kim Schrier from MHLG dated May 11, 2020).  Because of bipartisan support, the bill is expected to pass.  As with the changes in CMS policy during the pandemic (see above), once such changes are made, they are difficult politically to reverse because that deprives some of what they now view as their right.

            Liability of professionals for COVID transmission at their offices   

1.  In general, for a practitioner to be found to have negligently allowed the transmission of an infectious disease such as COVID, a duty of care, already established by the practitioner-patient relationship, must be breached.  For a mental health practitioner, breach ordinarily means violation of a directive of a State Department of Health or the federal Centers for Disease Control.  For COVID, these might be: failure to “test” (testing may be by questioning rather than by physical testing) employees and patients for the virus; failure to screen employees, patients and any guests for symptoms; failure to enact reasonable safety protocols such as mandating the use of masks and requiring social distancing measures to protect patients; failure to adequately train staff in implementation of safety measures; and failure to enact disinfectant and social distancing guidelines for employees. Assurance of compliance with State guidelines is maintained by completing and affirming online the New York Forward Business Reopening Tool, found at https://www.businessexpress.ny.gov/app/nyforward.  Not only should appropriate measures be taken and confirmed, but patients and staff should be notified of them.  The best consent and notice to patients that I have reviewed is one published by the American Psychological Association: https://www.apaservices.org/practice/clinic/covid-19-informed-consent

            After establishing a breach of duty, there is a need to demonstrate that the breach was the actual cause of the plaintiff’s harm, in other words, that the virus was transmitted at the premises of the practitioner.  Such  proof may be quite difficult to establish.

2.  In April, New York State  passed the “Emergency Disaster Treatment Protection Act,” (the “Act”) that provides immunity from liability to healthcare professionals for certain actions taken during the pandemic. Healthcare professionals covered by the Act include all mental health professionals and their contractors and employees.  Under the Act, healthcare professionals are immune from any civil or criminal liability for harm alleged to have been sustained as a result of an act or omission in the course of providing “health care services,” if the healthcare services were being lawfully provided in accordance with State directives; the act or omission occurred while providing healthcare services; the treatment of the patient was affected by the professional’s actions taken as a result of the COVID outbreak; and the professional acted in good faith. Under the Act, “Health care services” include: any treatment for COVID, but more importantly for mental health practitioners who do not directly diagnose or treat COVID, “the care of any other individual who presents ... to a healthcare professional during the period of the COVID-19 emergency declaration.”  Immunity does not apply to gross negligence* or intentional or reckless  misconduct.  In my opinion, at least for the duration of the pandemic,  the Act contains significant protection for practitioners against any allegations that their actions negligently caused the transmission of COVID to a patient.  It also establishes a public policy of shielding practitioners who act in good faith that may influence legal decisions afterwards.

            * Gross negligence is  deliberate and reckless disregard for the safety of others.  In contrast, “simple” negligence is the failure to use the level of care and caution that an ordinary person would use in similar circumstances, usually involving carelessness or inattentiveness that causes an injury.

3. Any claim by an individual that she or he became infected at a professional’s office  may be covered for defense costs and indemnification under the professional’s business owner’s or general liability policies* that insure against “bodily injury” arising from an “occurrence.”  An individual who becomes sick as a result of exposure to COVID suffers a covered “bodily injury.” Such policies also commonly require an “occurrence,” which is usually defined as being “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”   From the standpoint of the insured, any viral transmission was the result of an “accident,” i.e., was unexpected and unintentional.  To decline coverage, insurers may try to argue that there was no “occurrence” or “accident” as such if (1) viral spread is so significant that a substantial portion of the relevant population are carriers (i.e., contagion was expected) or (2) a claimant asserts that the virus was transmitted by an employee or independent contractor of the insured who showed visible symptoms of COVID or who is known to have contracted the virus (i.e., contagion was intentional).       

            * Business and general liability insurance are different from professional liability (or malpractice) insurance. The main difference between business and general liability insurance and professional liability insurance is in the types of risks they each cover. Business and general liability covers physical risks, such as bodily injuries and may also cover property damage. Professional liability covers errors and omissions made in the course of providing your  professional services.