HEALTH LAW SUPPLEMENT Fall 2006

History of treatment of mental illness and gun ownership. Sometimes a client asks whether previous treatment of mental illness precludes gun ownership in New York State. A history of serious mental illness at least warrants investigation when one applies for a firearms license in all states. Our Penal Law (Section 400(1)(d)) is non-specific and requires applicants for firearms licenses to state only “whether he or she has ever suffered any mental illness or been confined to any hospital or institution, public or private, for mental illness.” (Some states are precise in disallowing licenses to persons with particular diagnoses, e.g., schizophrenia.)
It should be noted that rifle ownership does not require a firearms license in New York State except for New York City. To own a pistol, however, one must apply for a license at the county or borough of residence, and answer the above question regarding any history of mental illness. If the answer is “yes,” then the police department will at their discretion decide whether the history of treatment constitutes “good cause” for denial of the license. They may require a current evaluation of mental stability by a mental health professional.
To corroborate the license applicant’s response regarding treatment of mental illness, a consent form permitting the county police department to obtain records of the New York State Office of Mental Hygiene is also required. However, the OMH only maintains records of persons involuntarily committed to public (not private) hospitals.
N.B. There is no evidence that mental illness in and of itself is a significant cause of gun violence.

No naturopathic doctors yet. This year the New York State legislature considered licensing naturopathic doctors (ND’s, aka “naturopathic physicians”). ND’s hold a doctorate from one of five schools in the USA, and use dietary supplements, herbs and other non-allopathic means to treat illness. For now, the legislation is on hold, A5208A and S1617A. So far, only 14 states license ND’s.

Managed care legislation passed and signed. On August 16th, Governor Pataki signed legislation (A11996 and S8417) that attempts to solve some of the problems practitioners have had with insurers in the areas of reimbursement and credentialing. Included in the legislation:
● Insurers may not demand refunds from providers more than two years after a claim is paid, except where they believe there’s been fraud, intentional misconduct or abuse.
In my opinion this is the most meaningful change made by the new law: we’ve represented a number of clients audited by insurers where demands for refunds were for the preceding six year period (on the basis of the statute of limitations on contract actions being six years). That will now stop. An unintended impact may be an increase in allegations of fraud by insurers.
● Insurers must give 30 days notice to practitioners of any purported overpayment for which the insurer will seek to be refunded. In the past some HMO’s offset the demanded amount against payments on the practitioner’s current claims.
● Insurers must accept and use the AMA’s CPT coding of procedures.
● Insurers must process provider applications for their HMO and PPO panels within 90 days.

A new identifier you’ll probably need. HIPAA requires that by May 27, 2007 all healthcare practitioners have an NPI – National Provider Identification – number. You’ll have to use the number whenever you bill insurers, including Medicare and Medicaid, electronically. If you don’t bill electronically, then an NPI isn’t mandatory, but private insurers whom you bill by mail may require that you have one. If you only bill patients and not insurers, then you don’t need an NPI.

It’s simple enough to get an NPI by going to the CMS website at https://nppes.cms.hhs.gov and completing the online application. They’ll want your UPIN if you have one. You’ll also be asked about a specialty code: most professional associations recommend that you use the most general code so you don’t become subject to specialty limitations. However, you may specify multiple specialties and reimbursement for certain procedures is limited to certain specialists.

Health care agents may be entitled to medical records. In a recent case before an appellate court in New York City, the court ruled that a health care agent, a daughter appointed by her mother’s Health Care Proxy (a power of attorney in which you appoint a person to make medical decisions for you in the event of your incapacity), was entitled to a copy of medical records of the patient, Mougiannis v. NS-LIJ Health System, (2nd Dept, 2005). This was what lawyers call “a case of first impression” in that the particular question had never before presented itself.
The hospital was denying records to the daughter after her mother was discharged because, the hospital argued, New York’s right of access law (Public Health Law, Section 18) does not accord health care agents status as “qualified persons” entitled to access to patient records. The court ruled that New York’s health proxy law (Public Health Law, Section 2982) supercedes the access law because one of the goals of the proxy law, that the agent have the necessary medical information to make informed medical decisions, would otherwise be defeated. The court’s decision was predicated on the continuing lack of capacity of the mother to make her own health care decisions.
This case may have important repercussions for access to records of mental health treatment. If a mentally ill person has executed a health care proxy, then the appointed health care agent may be entitled to access to the patient’s records if a legitimate claim can be made by the agent that the agent has the responsibility, and the patient lacks the capacity, to make informed decisions regarding treatment. We’ll have to see.

What else Bruce does. Bruce personally handles other types of legal matters besides health and mental health law. He is a highly experienced mediator, with over 20 years of experience as a divorce mediator. He also handles negotiations with the IRS on behalf of persons with federal tax liens, levies, garnishments, and asset seizures; the IRS now has several resolution programs where, under certain circumstances, compromise on the usual demand for full payment is made. Bruce also handles those civil matters familiar to all attorneys such as wills and incorporations. Feel free to call with any questions about these practice areas. As with health law, referrals in these other areas are welcomed and appreciated.

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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