HEALTH LAW SUPPLEMENT Autumn 2021

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.
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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