We publish a quarterly newsletter to update clients on legal and firm developments.  The newsletter includes a Health Law Supplement, written by Bruce, devoted to topics in mental healthcare and health law.  Back issues of the Supplement from the past three years are reprinted here, the most recent first.  Information in the Supplements 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 Health Law Supplements are copyrighted.

HEALTH LAW SUPPLEMENT Summer 2010, #33

Kendra’s law to expire or be renewed. First passed in 1999 and renewed temporarily in 2005, the law expires this month. It was named after a woman who was pushed in front of a subway by a mentally ill man with a history of hospitalizations. It allows courts to order severely mentally ill patients to attend involuntary (assisted) outpatient treatment programs (AOT’s). A recent study found evidence that mentally ill persons under court order are less likely to be arrested or hospitalized, and also that 82% of AOT orders were for residents of Nassau, Suffolk and New York City. About 2/3 of those under court order are black or Hispanic. Organizations of family members of the mentally ill generally favor the law, while patient advocacy organizations generally do not, feeling that the law may be discriminatory and is based on a misunderstanding that the mentally ill are prone to violence. Forty-four states have similar laws. The New York State Psychiatric Association opposes renewal of the law.

American Psychological Association changes its ethics rule (Standard 1.02) regarding conflicts between ethics and law. Previously, psychologists were required first to seek to resolve any conflict, but then were permitted to follow the law in the event that the conflict proved irreconcilable. This permission was often used by psychologists served with court orders to produce patient records over patient objections, especially in family matters, e.g., in a custody dispute, a therapist treating a wife might be ordered to produce treatment records without the wife’s authorization when a judge overrode privilege because he or she felt the records might assist in making a necessary decision about the best interests of the child. The APA believed, however, that this general deference of ethics to law, seemed to give license to psychologists to engage in torture or punishment that might be legally sanctioned but should nevertheless be deemed unethical. The new standard, effective this month, eliminates the language that gave explicit permission ultimately to follow all legal mandates, and substitutes a statement that psychologists may not "justify or defend violating human rights." This change settles the issue that psychologists may not engage in torture or inhumane punishment even if it’s legal, but seems to me to leave psychologists with less clarity as to how to handle more commonplace ethical-legal conflicts like the family law example above.

Employees and contractors must be screened for Medicaid and Medicare ineligibility. With increasing coordination, whenever healthcare professionals are subject to serious criminal charges, or professional misconduct sanctions such as any type of suspension, they may also penalized by the NYS Office of the Medicaid Inspector General (OMIG) and the federal DHHS Office of the Inspector General (OIG) by being placed on a list of providers ineligible to participate in Medicaid or Medicare. Submitting bills for the services of such excluded providers violates State and federal law. The OMIG and OIG have recently published their positions that all employers and contractors of healthcare professionals for whose services Medicaid or Medicare may be billed must perform a web search upon hire of each employee, and must re-screen all employees on a monthly basis. To facilitate the latter, they maintain a "short list" at their websites which lists changes over the past 30 days. OMIG is at www.omig.state.ny.us at "Resources" under "Disqualified Individuals." OIG is at http://oig.hhs.gov/fraud/exclusions.asp.

Red Flag Rules compliance delayed again until December 31. The FTC has again delayed the enforcement deadline for its Red Flag Rules. The Rules require creditors, which according to the FTC include healthcare practitioners, to develop plans for identifying and preventing identity theft. In May, the AMA and other groups filed suit to prevent the FTC from applying the rules to physicians and other healthcare practitioners. The delay is intended to resolve the conflict about the types of businesses to which the law should apply. (The new edition of our HIPAA Manual, described below, contains Red Flag Rules compliance guidelines for small mental health practices; because the Rules are "scalable" and to some extent overlap with the HIPAA Rules, the guidelines are not, in my opinion, onerous.)

A new edition of our HIPAA Manual is now available from our office. The older 2007 edition of the Manual is now outdated. Pursuant to the federal HITECH legislation of 2009, new HIPAA Rules take effect in 2010 that mandate changes in the Notice of Privacy Practices, Policies and Procedures Handbooks and Business Associate Agreements, and new breach notification procedures, among others. Relatedly, the FTC has a new "Red Flags Rule" to prevent identity theft, and New York State has changed its record access denial forms and now has its own breach notification law. Certain of the recommended means to comply with the HIPAA Rules have also changed.

The "HIPAA Compliance Manual for Small Mental Health Practices in New York State, Third Edition 2010" has all of the instructions and forms needed for current compliance with the HIPAA Rules and related laws and is designed especially for small mental health practices, those of psychologists, psychiatrists, social workers, mental health counselors, nurse practitioners-psychiatry, marriage and family therapists, creative arts therapists and psychoanalysts. The new edition of the Manual contains 14 new pages (a total of 102), 4 new forms (a total of 21), and numerous textual changes. As with prior editions, we have tried to make it the most accurate, simple, and cost-effective compliance program possible. The new Manual also contains as supplements basic record-keeping templates for psychotherapists and informed consent forms for individual, child, couple and family, and group therapy. Finally, a CD-ROM (Word file) containing the entire Manual is included. Even practitioners who are not HIPAA compliant will find much of the information and many of the forms useful; HIPAA has established new standards of care for the privacy and security of patient health information that are relevant for all practitioners.

HEALTH LAW SUPPLEMENT Spring 2010, #32

Changes to NYS Managed Care Laws: Several changes, all favorable for practitioners, were recently enacted into law in New York State as part of a comprehensive bill (A. 8402). They became effective January 1, 2010. The most significant were:

1. The Prompt Pay Law was amended to reduce the amount of time that health plans have to pay claims submitted electronically. It was 45 days; now it’s 30.

2. Health plans may no longer require practitioners to submit claims within 60 or 90 days or else forfeit payment, a common practice now. The plans must allow 120 days, and if in filing after 120 days, the practitioner can demonstrate a prior pattern of timely compliance, the plan must still pay at least 75% of the claim.

3. Health plans must process credentialing applications of prospective panel members within 90 days.

4. Plans may no longer unilaterally change material provisions of their contracts, including reimbursement rates, with panel members, as they have done so frequently in the past. They must provide 90 days notice of any material change, and affected practitioners will have the right to terminate the contract on the effective date of the change.

Federal Mental Health Parity Law takes effect: The federal Mental Health Parity and Addiction Equity Act passed by Congress in 2008 took effect January 1, 2010. It applies to benefits offered by employers of more than 50 persons, including self-funded (ERISA) plans and plans subject to state laws. This federal law does not require that all health plans offer coverage for mental illness; however, if they do, then benefits must be on a parity with coverage for physical disorders, i.e., no differences in deductibles, co-payments, length of hospital stays, number of psychotherapy sessions, out-of-network coverage. It also allows plans to exclude coverage entirely for certain mental disorders. But it defers to state laws that may mandate broader benefits and coverage. For example, in New York State, under Timothy’s Law, all health plans must offer certain limited mental health benefits (20 outpatient visits and 30 days in hospital) and all plans offered to groups of 50 or more must offer parity coverage of "biologically based" adult mental illness and "severe emotional disturbances" of children.

And Medicare follows suit: The above-mentioned Federal Mental Health Parity Law does not apply to general Medicare Part B. But another law, also passed in 2008, does. The Medicare Improvements for Patients and Providers Act (MIPPA) is a mental health parity law for all Medicare insureds that takes effect gradually, beginning January 1, 2010. Prior to passage of the law, Medicare insureds paid 50% of the cost of their Medicare-covered outpatient mental healthcare. During calendar years 2010 and 2011, that patient co-payment will be reduced to 45%. The co-payment will continue to be incrementally decreased until January 1, 2014, when Medicare patients will pay just 20% of covered charges, the same as they have always paid for their other Part B benefits. Note that diagnostic evaluations are covered at parity - 80% - immediately, as of this year, and will not be subject to the gradual phase-in.

A consequence of parity: Some Medicare Advantage managed care plans already have full parity for mental health benefits. A recent study indicated that patients insured under these plans appear to have significantly higher rates of usage of their mental health benefits than patients with intermediate or no parity. (But also note prior studies that patients who make use of their mental health benefits are less likely to use more expensive physical healthcare benefits.) (over)

Malpractice risks in psychiatry: A recent article complained of the lack of precise data but attempted to list in order the malpractice risks for psychiatrists: patient suicide; lack of emergency availability; failure to warn third parties of danger from patients; medication side-effects; boundary violations with patients; and internet therapy and prescribing. Patient suicide is not the most frequent cause of lawsuits but is considered the highest risk because of economic exposure; damages sought are the loss of lifetime earnings. Psychiatrists who solely prescribe and don’t provide psychotherapy have less risk of lawsuits. Psychiatrist-psychoanalysts have fewer claims against them than psychiatrists with other psychotherapeutic orientations, presumably because the intense relationship between analyst and analysand inoculates against legal action.

Crackdown coming on employees mis-characterized as independent contractors: Healthcare practices that retain healthcare professionals and others as 1099 independent contractors are advised to have such relationships reviewed closely now by an attorney or accountant. Last month the IRS announced it would begin a new initiative to penalize any mis-classification of employees as contractors. New York State has recently begun a similar effort. Issues of mis-classification by our healthcare clients that have arisen upon audit have most often been due to: the use of full-time contractors or those without other engagements; required supervision of the ongoing work of contractors; control over work hours of contractors; restrictive covenants imposed on contractors; and payment arrangements for contractors that simulate hourly wages. Penalties for mis-classification can be severe and multiple.

Penalties for HIPAA violations increase: Prior to the 2009 HITECH revision of HIPAA (see the Winter 2009 Newsletter at our website), the federal Department of Health and Human Services did not impose penalties if a covered entity established that it was reasonably diligent in its compliance efforts but still did not know that its conduct violated HIPAA standards. This "lack of knowledge" defense was abolished last month. Penalties will now be imposed on all violations, ranging from $100 for violations attributable to "lack of knowledge," to $50,000 for uncorrected willful neglect. Ignorance even if justified is no longer an excuse. The previous educational approach taken by HHS toward first-time non-willful offenders is no more.

The military endorses online therapy: As of last year, on an experimental basis, TRICARE (formerly CHAMPUS to you old-timers; a single payer health insurance available to members of the US military, including the National Guard, and their families) has offered video-webcam online short-term mental health counseling to its insureds in the US. Skype is used to deliver the service. It’s free, available 24 hours a day, and is staffed by psychologists. It was theorized that this means of access might alleviate concerns about confidentiality and stigmatization that are believed to predominate among members of the military. It seems inevitable to me that this method of delivering mental health services to the public will eventually be reimbursable by most insurers.

HEALTH LAW SUPPLEMENT      Winter 2009, #31

Notice to patients of breaches of their health information now required under HIPAA. A new HIPAA regulation took effect September 23, 2009 under the Health Information Technology for Economic and Clinical Health Act (HITECH). It requires notice of breaches of security by practitioners to the affected patients, the HHS Secretary, and if more than 500 individuals are involved then also to the media. A breach is defined as unauthorized acquisition, access, use or disclosure of protected health information (PHI). There is a "harm threshold" provision that removes the requirement of notice if the breach does not pose a threat of harm. For example, a fax containing PHI sent to the wrong number but quickly returned or destroyed might not be expected to cause harm so would not be reportable. In my experience, for small practices, the most common reportable breach would be the loss or theft of records.

New York State also has a breach notification law, GBL §899-aa that requires notification to customers of any breach of "private information," defined as social security, driver’s license or other identifying numbers, account or credit or debit card numbers, or security codes or passwords.

The Red Flag Rule is further delayed. The "Red Flag Rule," a set of regulations issued by the Federal Trade Commission, was first scheduled to take effect August 1, 2009 and then November 1, 2009. Now the effective date has been pushed back to June 1, 2010. The purpose of the Rule is to reduce identity theft. The FTC has so far insisted that it will be applicable to health care practitioners because they are "creditors" who bill patients and insurers for services. The Rule would require practitioners to establish policies and procedures to identify and prevent identity theft. The FTC has issued a "Do it yourself" kit for small businesses to comply with the Rule, at www.ftc.gov/bcp/edu/microsites/redflagsrule/RedFlags_forLowRiskBusinesses.pdf Among other health care associations, the AMA continues to lobby against the application of the Rule to health care providers, so there is still a chance that the Rule may not be applied to them in June.

An unintended corporate practice problem. There has been an unintended consequence of the new laws enacted over the past few years, one of whose purposes was to limit the practice of psychotherapy exclusively to licensed professionals and State licensed entities. Prior to the passage of those laws requiring licensure, many educational corporations and not-for-profit corporations had provided non-medical mental health services to the public even though they were without an operating license from one of the State agencies that issues them, the DOH, OMH, OASAS or OMRDD. Now the ability of such organizations to legally provide such services is in question. Organizations such as these, for example, some "clinics" affiliated with social service organizations or psychotherapy training institutes, serve a large segment of the public. Also in question is whether social workers and mental health practitioners who work in such settings under supervision may use that supervised experience as qualifying experience for licensure or advanced credentialing. Regulators and lawmakers have devised a proposed solution, which is to institute a sort of quasi-licensing procedure by which the educational and not-for-profit organizations would register with and meet certain requirements of the State Education Department. The registration would apparently have retroactive effect to resolve the issue of licensure qualifying experience. The legislature has not yet acted on the bills, A 8897 and S 5921.

Hiring a student extern. Some practitioners and practices hire student externs to assist in providing mental health services to patients. Professional regulations generally permit the practice if the student is in a licensure qualifying graduate program and the site has been approved by the program as providing an approved supervised practicum experience and such experience is required for completion of the program. Some clients engage in this practice to save money as well as to provide training. If there really is a financial benefit to the employer however, then the student should probably be paid as an employee.

The NYS Department of Labor has guidelines that distinguish between externs (or "trainees" as the Department calls them) who need not be paid, and those who must be employees and as such be paid at least minimum wage. To qualify as a trainee who need not be paid, one must be provided training similar to that received in school, not displace a regular employee, be closely supervised, be the primary recipient of any benefit from his or her labor, and not provide any immediate advantage to the employer by his or her labor. The last two qualifications are the most significant in differentiating those externs who must be paid. If the practice bills for the labor of the extern, then the practice is the recipient of benefit and is deriving an advantage from the labor of the extern.

Bottom line: if you bill clients or insurers for the services performed by an extern, then the extern should probably be a W-2 employee with all that this entails, i.e., withholding of federal, State and City income taxes, FICA and UEI, and provision of NYS DBL and worker’s comp insurance. N.B. Students may not be retained as independent contractors because of the requirement of close supervision imposed by their lack of licensure and academic programs.

Sex with a patient you plan to marry is still not OK. Ethics codes for mental health practitioners are clear in prohibiting sex with patients and former patients, with the latter either forever or for a considerable period of time. It’s been unclear however whether there was some type of implicit exception, at least in terms of enforcement by a licensing board, if a practitioner began an intimate relationship with a patient or recent ex-patient that developed into a marital one. An appellate court in New York opined that there was no such exception. The physician had argued that his constitutionally guaranteed right to marry was implicated. The court disagreed and held that a physician can be disciplined for moral unfitness even if the patient with whom he engaged in a sexual relationship eventually becomes his fiancé. Angelo v State Board for Professional Medical Conduct, Appellate Division, Third Department, October 22, 2009, NYLJ No. 505410.

For LMHC’s and LMFT’s, a change in status under the National Health Care Reform Bill. The House version of the health care reform bill (H.R. 3962) contains, among many other provisions, one that authorizes licensed mental health counselors and licensed marriage and family therapists to bill Medicare. We’ll see whether the change stays in any bill that may eventually be passed.

HEALTH LAW SUPPLEMENT Fall 2009, #30

Of course, the best outcome is to avoid the necessity of any collection procedures at all. Regular billing, not letting balances accrue, and making non-payment a clinical issue (as it almost always is if fees are reasonable and affordable to patients) are all tried and true preventive practices. Also, therapists with large practices who accept credit card payments find that helps to reduce problems and is worth the cost.

HEALTH LAW SUPPLEMENT Summer 2009, #29

Financial and legal issues in telephone psychotherapy. Private insurers generally do not reimburse for telephone psychotherapy. No CPT code for psychotherapy can be used for telephone therapy because it’s not a face-to-face service. Because it can be considered misleading, patients treated telephonically should not be billed for "individual psychotherapy," nor should their services be coded as 90806 or any other CPT code. Rather, in billing use the description "telephone psychotherapy" without any accompanying CPT code. Some insurers will, however, allow use of such CPT coding for and reimbursement of episodic telephone sessions such as when an established patient is away on vacation or home ill. But as far as I know, none allow these for regularly planned or frequent telephone therapy. Exceptions may be granted; you, the patient, or both of you may make a case to insurers that one is warranted, but prior full disclosure to the insurers would be required.

There are standard of care issues as well. Can you provide psychotherapeutic treatment that meets customary standards for safety and efficacy by means of planned regular use of the telephone as a primary means of communication? Presumably, you will be lacking information that you might otherwise glean from face-to-face encounters with patients. Resolution of these questions require recourse to professional research and ethical and community standards. You might address them additionally in an informed consent document, in which you label as experimental the telephonic aspect of treatment, and if possible, offer patients alternative non-telephonic referrals if and when exigent circumstances arise.

Whether a healthcare practitioner is permitted to provide telephonic professional services to a client in a state where the practitioner is unlicensed is unresolved. Public policy of states and risk management policy of practitioners would seem to militate against it. States wish to have jurisdiction by means of licensure over healthcare practitioners who provide services to their residents. Although it has not occurred to my knowledge, there is the possibility that a practitioner might be accused of unlicensed practice by the state in which the client resides (and in which the practitioner is unlicensed); unlicensed practice is a crime. Additionally, there is the possibility that, should the practitioner be sued for malpractice, insurance coverage might be questioned by the practitioner’s malpractice carrier for services rendered out-of-state on the basis of the practitioner having engaged in unauthorized practice.

Having an out-of-state patient sign an agreement that for all purposes the site of delivery of all services shall be considered New York State and subject exclusively to the laws of this State might provide a technical solution to these issues, but is as yet untested also. Having initial and then some ongoing regular contact in New York State, i.e., an in-person intake and occasional face to face sessions, would bolster a position that New York is properly considered the situs of the services.

Out-of-state telephonic "coaching"presents significantly less exposure than telephone therapy because coaching usually does not require a license, is not necessarily a professional activity, and has standards of care that are looser and vaguer.

A court affirms that treatment records belong to the clinician. With so much written lately about patients’ rights, HIPAA and the like, it’s easy enough to understand why some patients, and even some clinicians, might believe that treatment records belong to or can be controlled by patients. Some clients have called us in confusion after a patient has demanded that all of his or her treatment records be destroyed or has demanded possession of the original treatment records (and not a copy). Under HIPAA and New York State Public Health Law §§ 17 and 18, upon their written request, patients are indeed entitled to copies of their records in most cases (there are exceptions where denial of access may be appropriate, albeit with notice of a right to appeal). But the original records of treatment are the exclusive property of the practitioner. For many reasons, among them regulatory requirements (see Rules of the Board of Regents 29.2 (a)(3) mandating record maintenance and retention) and defense against all manner of allegations, clinicians ought not destroy, alter, or transfer possession of their original records. In Chervonskaya v Bentley, 867 NYS2d 107 (2 Dept. 2008), a patient who sued a physician and had mistakenly obtained original treatment records was compelled to return them to the physician because that is to whom they belonged..

Malpractice exculpatory agreements generally invalid in New York State. A client called recently and asked if she might require low fee or pro bono psychotherapy patients to sign an agreement not to sue her for malpractice. The "consideration" received by the patient in exchange for relinquishing this right, necessary for even the possibility of a valid contract to be considered, was the low or no fee. While the therapist’s proposal might seem reasonable and equitable from a certain perspective, if legally challenged it would likely be invalidated by a court as "void for public policy" reasons, that is, that public policy precludes its enforcement. That’s what happened to such an agreement promulgated by a low cost dental clinic in Ash v NYU University Dental Center 564 NYS2d 308 (1^st Dept 1990). The two rationales for the court’s decision were that (1) allowing such agreements might foster a two-tier health care system where the less affluent got lesser care because their providers were less accountable; and (2) the agreement was based on abuse of a special relationship between healthcare practitioner and patient where the clinician had inherently more bargaining power, and where it was antithetical to the fiduciary nature of the relationship for the clinician to act in such a purely self-protective manner.

A different but similarly intended approach might be to require all patients, not just those paying lower fees, to mediate or arbitrate disputes with a practitioner, rather than sue. There is considerable interest currently in such arrangements and the law is less clear about their enforcement.

Medicaid reimbursement for clinical social worker services at FQHC’s. As of February 6, 2009, psychotherapy conducted by social workers at Federally Qualified Health Centers is billable to Medicaid. Prior to the change, neither "medical social services" nor psychotherapy were billable, although psychological evaluation was, see 10 NYCRR 86-4.9 (c). FQHC’s are non-profit medical clinics licensed by the State operating in under-served areas that accept Medicare and Medicaid (of approximately 1000 licensed facilities in the State, 58 are FQHC’s). The new regulation includes as social workers not only LCSW’s but also LMSW’s practicing under supervision. The State was compelled to make this change in order to conform to Federal law. The change is a victory for the poor more than for any profession, and it highlights that non-medical psychotherapy has become an integral part of general healthcare services.

HEALTH LAW SUPPLEMENT Spring 2009, #28

The Social Work Board clarifies supervisory requirements for LMSW’s. In recent communications available at its website, the Social Work Board has stated its interpretation of the supervision necessary for LMSW’s to provide clinical services to the public and to obtain the experience needed for progression to the LCSW license. The communications are available at: www.op.nysed.gov/swprivatepractice.htm. Except as grandparented, LMSW’s may not practice privately on their own, but may provide clinical services under supervision at a licensed healthcare facility or at the private practices of the LCSW’s, psychologists or psychiatrists who supervise them. However, there is a grandparenting provision that acknowledges that the above interpretation was not generally understood previously: LMSW’s who established private practices prior to February 2009 and employed a private supervisor may continue to practice in that manner until 2015, and may use that private supervision to qualify for the LCSW.

New York State has a new Power of Attorney Law. It’s at NY General Obligations Law Section 5-1501 et seq. Two facets of the new law are especially relevant. Those of you who have had the foresight to execute POA’s for yourselves so that a trusted family member or advisor can maintain your financial affairs if you’re unavailable or incapacitated should consider consulting with your attorneys about whether you should execute a new one. Old POA’s are still effective but the new ones have potentially broader scope.

The second reason, more pertinent to professional practice, is that the new POA form now extends coverage to medical records. The appointed agent, if the principal elects, will have status under HIPAA to obtain medical records of the principal. Under the law, the rationale for the agent’s ability to obtain medical records is that he or she will be empowered under the POA to make healthcare payment decisions and presumably cannot determine the reasonableness of medical bills without access to the medical records that support them. The agent under the POA cannot, however, make health care treatment decisions; that requires a Health Care Proxy. For mental health practitioners, some limitations may be imposed on the access of agents so that they are given enough information to make payment decisions but not sensitive and private treatment information that is unrelated to financial decision-making.

Potential liability for lost records. Clients ask what might happen to them if they lose treatment records of patients. For HIPAA compliant offices, any records maintained electronically must be backed up. But what about records maintained only on paper that are lost, stolen or destroyed by fire or water damage? And for small non-HIPAA compliant offices that maintain computer records, what about some kind of computer catastrophe?

If the loss of records is due to negligence on the part of the practitioner (e.g., leaving them in an unlocked car), and the lack of them results in some type of harm to a patient, then malpractice liability is possible. But the confluence of those two factors is unusual.

More usual is a lack of records when a practitioner is defending against allegations of malpractice or misconduct by a patient, or when records must be produced for a patient access request, subpoena or insurance audit. Because maintenance of records is legally mandatory, the lack of them can be used as evidence against healthcare practitioners in malpractice or misconduct proceedings under the "missing evidence rule" unless counter-evidence is produced that justifiably explains their absence. "Acts of God" such as floods or fires are such justification as is criminal victimization, but the practitioner would be expected to produce corroborative documentary evidence such as insurance claims for the water or fire damage, a police report for theft, or a repair bill for a computer that has crashed. Perhaps the most common cause of missing paper records that I hear, that they were lost in a move, usually requires an affidavit (sworn statement) of the practitioner as support to try to avoid negative consequences. In a reimbursement challenge by an insurance company, secondary evidence of services rendered such as appointment books and affidavits of patients may also be necessary.

Blogger Insurance. Some innovative clients in recent years have asked about the legal risks of creating blogs as marketing vehicles for their practices. The risks of professional liability for such blogs perhaps can be adequately dealt with by education, disclaimers, and caution. But there are other risks less under the control of the practitioner including allegations of defamation, invasion of privacy and copyright infringement. For example, someone blogging on your sponsored site might defame or publish private information about someone else, and you might be sued. Or someone might publish copyrighted material. Those possibilities might even have discouraged some clients from creating blogs. Now, for the first time to my knowledge, there is "blogging insurance." It’s called Bloginsure, costs a few hundred dollars, and is offered by the Media Bloggers Association. They require that you take a risk management course first. I don’t recommend or endorse this insurance, but for bloggers and would-be bloggers it might be worth investigating.

New York Court extends immunity of expert witnesses to their written reports. One physician commenting as an opposing expert witness in a written report on the care of another physician made the expected negative statements about the clinical judgement of the other physician, but then went beyond the customary and said that the other physician’s particular type of misjudgement indicated that he also suffered from "...a certain lack of morality." The criticized physician sued for defamation, alleging that the statement regarding his alleged immorality was unrelated to the medical issues in the legal proceeding and was made in a written report and not oral testimony, and therefore should not be protected by the immunity that ordinarily accompanies live expert testimony. The court affirmed the "absolute privilege" of expert witnesses; they simply cannot be sued for what they have either testified to or reported in writing. Kaisman v Carter, 831 NYS2d 348 (SCt, NY Cty, 2006).

Relatedly, in New York State if an expert has been appointed by the court, as is typically the case with court appointed impartial evaluators in custody and other family cases, then he or she would be protected by judicial immunity as well as expert witness immunity. Deed v Condrell, 579 NYS2d 930 (4 Dept, 1991).

The available forum for a review of the propriety of a testifying expert’s statements is an ethics committee of his or her profession, however limited its remedies.

HEALTH LAW SUPPLEMENT Winter 2008, #27

A couple of changes in Medicare procedure. (1) This year, Medicare changed its policy to allow healthcare practitioners to charge patients for missed appointments. Previously this was not permitted. Such charges may not be billed to Medicare of course. But now they may be billed to Medicare patients and paid out-of-pocket by them. CMS came around to believing that charging for missed sessions is justifiable because they represent "missed business opportunities." There is a proviso to the change: Practitioners may not discriminate against Medicare recipients and must charge the same fee for missed sessions to all patients. See CMS Manual, Chapter 12, section 30.3.13.

I would add as a caveat that billing statements for missed sessions given to any patients, Medicare or otherwise, should not refer, either by CPT code or name, to the service that would have been provided had the patient shown up, but rather should indicate that the charge is for "reserved time." We have seen instances where patients sent to their insurers claims for reimbursement with attached billing statements on which practitioners had indicated the service that was to have been provided but was missed, without it being clear that no service was actually rendered. The insurers consider this fraudulent and may consider the practitioner complicit.

(2) CMS has issued a new ABN form. ABN is an acronym for "Advance Beneficiary Notice of Noncoverage" although it might more properly be called "advance beneficiary notice of possible noncoverage." It can be found online as form number CMS R-131, ABN-G. Beginning March 1, 2009 only the new form can be used. For those unfamiliar with the form, it is used when a practitioner believes that Medicare may deny reimbursement for a service due to a lack of medical necessity. Once patients sign the form acknowledging this possibility, they may be held personally liable for payment. Depending on the option chosen by the patient on the ABN, there may still be a right to appeal a denial by Medicare, but the patient, rather than the practitioner, assumes responsibility for any appeal. Note that the ABN must be signed by patients prior to the rendering of the questionable services. Practitioners may still seek reimbursement from Medicare for the questionable services if the practitioner believes the service is medically necessary.

An example may help explain use of the ABN. Following a retroactive audit by Medicare of medical necessity, some client-psychotherapists have been compelled to return to Medicare funds paid to them for the second of twice-a-week therapy sessions because the auditors believed that only one weekly session was necessary. Sometimes the refund occurs after a lengthy appeal process by the practitioner. Because those therapists had not sought ABN’s from their patients prior to treatment, they could not bill patients for the fees refunded to Medicare and the therapists therefore lost any payment for the second weekly sessions, including co-payments which had to be refunded to the patients. Had the therapists asked their patients to sign ABN’s indicating that the second weekly session might not be reimbursable, then following any refund to Medicare upon a finding of lack of medical necessity, the therapists could have held their patients responsible both for making any appeal and for the payments refunded to Medicare.

That new federal mental health parity law. The bill passed by the US Congress bailing out banks was for some reason accompanied by a mental health parity law that had been bandied about for over 10 years. New York State has recently passed a parity law ("Timothy’s Law, see Health Law Supplement #20), and the federal law does not preempt state laws. However, unlike state parity laws, the federal law will apply to self-funded group plans, a very significant portion of insurance plans.

There are limits on the extent of the new law though. The law does not apply to employers with 50 or less employees. It does not apply to the individual health insurance market. Although initially planned to apply to all patients with a DSM diagnosis, the final version of the law dropped that requirement to allow insurance companies to choose which mental health conditions and treatments will be covered. The law applies only to plans that include coverage for mental health; insurance companies are still free to offer no coverage at all for mental health treatment. Finally, the law doesn’t take effect until January 1, 2010. We won’t know for a while how it will be implemented.

I’m a licensed mental health professional, Do I need malpractice coverage for coaching? Coaching, as distinguished from therapy, is meant to enhance normal functioning and not to treat symptoms of illness. Personal, life and executive coaches should have malpractice, or errors and omissions, insurance. Even coaches who are not licensed healthcare professionals- no license is needed in New York State to be a coach - should have insurance to cover any potential liability for coaching. The underlying question, then, is whether the malpractice coverage already in place for licensed professionals covers their coaching activities.

There is a related broader issue, that of whether coaching conducted by licensed mental health professionals is necessarily within the scope of their professional practices. There is no legal answer to that question, or, more precisely, to the extent it’s a legal question, the answer is unclear. One California court decided that a professional serving as a life coach was subject to laws that mandate confidentiality for substance and alcohol treatment. and by implication, was acting in a professional capacity, People v. Barrett, 109 Cal App 4, 437 (2003). But a federal court found that coaching, although offered by a counseling center, was not a "health care" or professional service, Wolf v. Fauquier County Board of Supervisors (2007, ED Va).

Whether coverage is in place therefore depends on the contract the professional has with his or her insurer. Some malpractice carriers for mental health professionals include coverage for coaching and some don’t. If your carrier doesn’t then you’ll need an additional policy to cover your coaching activities. Some malpractice carriers for mental health professionals condition coverage for coaching on it being part of the professional practice of the insured; in such instances, advertising should describe coaching as a professional, albeit not therapeutic, service.

Falsification of treatment records; the professional price. A New York appellate court recently found "proportionate" the severe penalty imposed by a hearing panel of the medical licensing board on a physician who was found to have falsified a treatment record. Evidence had established that the physician had written a note in a patient’s chart that a complete exam had taken place when in fact the exam given had been partial. The penalty was a one-year suspension and three years of probation and supervision. Sookhu v. Commissioner of Health of the State of NY, 820 NYS2d 146 (3^rd Dept 2006).