HEALTH LAW SUPPLEMENT Fall 2008

LMSW’s and private practice. When the new licensing law for social workers took effect in 2004, most of its interpreters believed that the entry-level license for “licensed master social worker (LMSW)” would allow those licensees to operate private practices as psychotherapists as long as the licensees were under the regular supervision of an advanced licensee, a “licensed clinical social worker (LCSW),” or by a psychologist or psychiatrist. The practice of psychotherapy was included in the scope of practice of LCSW’s but not LMSW’s, but it was thought that the provision of the law ((Education Law §7701) that allowed LMSW’s to practice as psychotherapists “in facility settings or other supervised settings” included allowance to practice as a psychotherapist in the LMSW’s own private practice as long as supervision was obtained. Following a period of 3 years of weekly supervision in his or her private practice, an LMSW might become licensed as an LCSW, or so it was thought.

In April 2008, State regulators in the Office of the Professions apparently changed their interpretation of the law, such that they now assert that LMSW’s may not offer psychotherapy from their own private practices, even if under supervision, and that supervision they may have received in their private practices cannot be qualifying supervision for the purpose of fulfilling the 3-year supervised practice requirement for the LCSW. It’s unclear whether LMSW’s may still operate private practices and offer some type of “evaluation,” “intervention” and “counseling,” all of which appear to be within the scope of their licenses, even if not “diagnosis,” “psychotherapy” or “treatment planning,” which are restricted to LCSW’s (as well as the other licensed mental health professions.) The devil here is in the definitions of these terms.

This apparent change has caused consternation among licensed master social workers and their professional associations and I understand that they are attempting to negotiate with regulators a retraction of the new interpretation, some relaxation of it, or at least some clarification.

Jonathan’s law implemented. Another law was passed in May 2007 that is named after a victim, this time a non-verbal autistic boy who was abused while in a private residential school that was under the aegis of the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD), and whose family was prevented from obtaining knowledge of the abuse. Regulations implementing the new law became effective June 2008; see OMRDD regulations Part 624 and Mental Hygiene Law §§33.23 and 33.25 respectively. The regulations require that whenever mistreatment occurs in a facility operated or licensed by the State, parents, guardians, a family member or an advocate be given telephone notification and access to records of the incident and offered meetings with facility directors. Facilities may be fined up to $15,000 for non-compliance.

A new type of Medicare audit is coming. As of Summer 2008, the federal Centers for Medicare & Medicaid Services (CMS) are expanding a pilot program in New York State in which private “recovery audit contractors” (RAC’s) review claims to find overpayments. The RAC’s are called “bounty hunters” by some, because they are paid in part on how many overpayments they find. Hospitals are the primary targets but private clinicians may be audited as well. RAC’s may not look back more than 3 years for overpayments, and for now, no earlier than October 2007. The best defense against a charge of overpayment is an adequate treatment record. Call us for templates of a psychotherapy treatment record that we believe provide adequate documentation of evaluation and treatment.

Parents right to choice of type of mental health treatment. Sombrotto v Christiana W, 852 NYS2d 57 (1st Dept, 2008) is an interesting case with ramifications not only in the area of parents rights, but also possibly regarding changing standards of care. Since the Osheroff v Chestnut Lodge case about 20 years ago, it has generally been considered a breach of the standard of care in mental health practice for a hospital to offer exclusively non-medical interventions when a patient suffers from a condition that is considered amenable to medical care, e.g.,anti-depressants for depression, mood stabilizers for mania. This principle has been enunciated as the psychiatric patient’s “right to effective treatment.”

Christiana, a 14 year old girl was admitted to a psychiatric hospital after an uncertain suicide attempt. She was depressed, had dropped out of school, had just had a fight with her mother, and said she wanted to hurt herself but not necessarily die. Physicians at the hospital recommended medication (risperidone, lithium, depakote), but her parents declined consent to the medicines, and she was converted from voluntary status to involuntary status because she was assessed to present a risk to herself.

The hospital reported Christiana’s parents to the New York City Administration for Children’s Services (ACS) for their alleged neglect of her medical and psychiatric needs by their failure to consent to the recommended treatment with medication. ACS investigated but did not find that medical neglect had occurred.

Presumably in an attempt to assert their patient’s “right to effective treatment,” the hospital then petitioned a trial court for an order permitting them to involuntarily administer medication to Christiana. Her treating psychiatrist testified that she had improved significantly during her hospitalization and was not currently actively suicidal but still he recommended medication because a recurrence of her acute symptoms was more likely without it in his opinion. The trial court granted the petition on the basis that a parents’ rights to raise children as they think best is not absolute, and parents’ rights yield to the State’s rights in promoting children’s welfare when parents reject treatment that is in their child’s best interest.

An appellate court reversed the trial court’s decision, finding that no evidence had been presented that Christiana was suffering from a life-threatening illness, that ACS had found no neglect and that the parents had indicated an intention to seek alternative non-medical treatment, i.e., not including medication. The appellate court was also impressed with the treating psychiatrist’s testimony regarding side effects of the prescribed medication and his lack of certainty regarding its long-term benefits.

It’s questionable to generalize from the specific facts of a case like this, but it could be argued that if parents have a right to decline medical treatment for their mentally ill children who might benefit from it in favor of other treatment, then hospitals may, in some cases, offer alternative non-medical treatment, as long as the condition is not life-threatening and, of course, proper informed consent, including regarding all treatment options, is obtained.

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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