HEALTH LAW SUPPLEMENT Autumn 2022

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.
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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.

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

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