HEALTH LAW SUPPLEMENT Autumn 2020

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.
INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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