HEALTH LAW SUPPLEMENT Fall 2005

Local court upholds immunity of mandated reporter of child abuse. A State Supreme (trial) Court in Nassau County recently dismissed a malpractice case against a physician who was sued by parents whom he had reported to Child Protective Services for suspected Munchausen Syndrome by Proxy. The case made no new law, but did reinforce the principle (based on Social Services Law §419) that mandated reporters are immune from civil or criminal liability when they make a mandated report in good faith. This is so even if they are incorrect, i.e., no abuse or neglect actually occurred. (After the report and before this lawsuit, a Family Court judge had dismissed abuse and neglect charges against the parents.) The Nassau court said that in order to overcome the presumption of good faith in reporting, the parents would have had to prove willfulness or gross negligence. Mercandetti v. County of Nassau and Gilbert Dick, MD, Nassau County Supreme Court, March 2005.

Kendra’s Law is renewed with slight changes: Governor Pataki signed a new “Kendra’s Law” on June 30th, the same day the old law expired. These “Assisted Outpatient Treatment (AOT)” laws, sometimes called “outpatient commitment” laws, allow for courts to mandate outpatient care of at-risk formerly non-compliant patients. The law has been considered successful and is believed to have reduced in-patient hospitalizations, incarcerations and homelessness. Like the old law the new one “sunsets” after five years. There are procedural changes in the new version, one of which adds licensed psychologists and social workers to the list of persons who may petition a court for an AOT order.

Timothy’s Law fails to pass again: This mental health care “parity” law failed to pass in the New York State legislature once again. New York remains one of 17 states with no law mandating employers to provide benefits for mental health care. The final draft version of the law proposed only that the prevailing insurance practice in New York State of paying for 30 days of inpatient hospitalization and 30 outpatient sessions be made into law, but it was rejected. There is a growing lobby for this bill though (350 organizations State-wide), and they will no doubt be back to fight another day.

Insurance department’s view of “incident-to” billing for patients of HMO’s: “Incident-to” billing is a practice by which healthcare professionals may bill insurers for their services at their rate even if certain portions of the services are rendered by employees of the healthcare professional (sometimes these employees are called “extenders”). Medicare requirements for “incident-to” services include that the treatment initiation, planning and ongoing monitoring be by the primary healthcare professional, that treatment by the extender be supervised and rendered in-office, and that the primary healthcare professional be on-site when the extender delivers care. Incident-to billing is commonly acceptable to Medicare, Medicaid, No-Fault, Worker’s Comp and many fee-for-service insurers.
Does the acceptability of “incident-to” billing change if the insurer is an HMO or managed care organization (MCO)? This was the question posed to the Office of General Counsel of the State Insurance Department, that was answered on March 22, 2005. The question is one asked of us frequently by clients who wish to leverage their time and hire professional employees who are themselves not on the panels of the HMO’s and MCO’s on which the primary healthcare professional is participating. The answer of SID Counsel is the expected one: “It depends.”
What it depends upon are the terms of the contracts the primary healthcare professional has with HMO’s and MCO’s. Many HMO’s and MCO’s wish to credential and police all practitioners who provide services to their insureds and clearly state in their contracts that the primary healthcare practitioner must personally render services. Other contracts are unclear or missing any references, direct or indirect, to “incident-to” billing. In the latter cases, we advise clients that it is safest to inquire of each particular HMO or MCO about its policies regarding “incident-to” billing.
I suspect that what the questioner had hoped for was a response from the SID that would relieve him or her of this task and provide general guidance. It didn’t happen.

What’s a “professional will?” Our pleas to clients that they establish wills, powers of attorney and advance directives usually fall on deaf ears, and so might this one, but it’s worth a try. Once in a while we get a call from a distraught recent widow or widower, the spouse of a healthcare professional who’s just died. The survivor’s plight has been made more difficult because she or he has no idea how to handle the closing of the practice of the departed one. So, here are the essentials of a professional will, a document that, unlike a real will, requires no formalities, no notarization, just that it exist: naming of a professional “executor” (a colleague); naming the legal advisor to the practice with whom the executor should consult (a healthcare attorney); the location of current and archived files and other documents related to the practice; a listing or description of which patients, if any, should be immediately notified of the death or disability, whether they should be invited to any service, and what donation, if any, is preferred; instructions for contacting and referring current patients; instructions for the appointment of a custodian of records or other maintenance of them; and instructions on how the executor is to be paid.

Fitness to drive and confidentiality: Occasionally a healthcare practitioner will call after having been asked by concerned family members to notify the Department of Motor Vehicles that his or her patient is not able to drive safely. Sometimes the patient is elderly and unwilling to stop driving, maybe in the early stages of dementia. Sometimes the patient is taking medications that cause impairment but can’t or won’t recognize it.
In New York State, however, without consent and written authorization from the patient, it is inadvisable for a healthcare practitioner to notify DMV of the patient’s medical condition or to evaluate fitness to drive. To report without patient authorization is considered a breach of confidentiality that may subject the practitioner to a malpractice lawsuit or a complaint to a professional licensing board.
Some states have addressed this issue by statute, for example, California, which has a law stating that it is considered malpractice for a physician not to report a patient who is an unfit driver. In 1999 the AMA changed its ethical guidelines to allow (but not require) physicians to notify motor vehicle departments about patients with medical conditions that make them unsafe drivers. These changes reflect the notion that public safety takes priority over patient confidentiality. Many healthcare practitioners, particularly mental health practitioners who value privacy most highly, do not agree with that policy.
A practitioner in New York may inform family members that the DMV will retest a driver upon written request. The letter from the family member to the local DMV must state the driver’s name (as it appears on the license), date of birth, license number (if available), current address, observations of the writer that have caused the belief that the driver may be unfit, and the name, signature and relationship to the driver of the writer. The writer must give his or her name, but may request that it be kept confidential by the DMV.

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

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