HEALTH LAW SUPPLEMENT Fall 2010

NYS autism treatment law in question. Governor Patterson is considering whether to sign or veto a law (S7000-B) that would require health insurers to cover treatments for persons on the autism spectrum for the life of the person. The bill, however, sets a high standard for reimbursable treatments, that is, that they be “evidence-based, clinically proven and peer reviewed.” Many treatments that benefit persons with autism such as occupational, physical and speech therapy, and even some “off-label” uses of psychiatric medications, might not be covered because they don’t meet those criteria and treat symptoms rather than the disorder itself. Moreover, early intervention reimbursement costs would be borne by counties and not private health insurers. Twenty-three states, including Connecticut, Massachusetts and New Jersey have comparable legislation. Autism Speaks, a large national advocacy organization favors signing of the legislation. Some smaller State-based groups oppose the legislation and want it re-written for the above reasons.

New automated system in NYS to monitor patients’ prescriptions for controlled substances. In April 2010, the Narcotic Enforcement Bureau of the NYS Department of Health established a new, voluntary and automated system for physicians to monitor the history of their patients’ prescriptions of controlled substances (e.g., pain medications, tranquilizers, and stimulants are the main prescription drugs of abuse) by different physicians and from different pharmacies. Nothing requires physicians to participate, but doing do will have the obvious function of preventing “doctor shopping.”

OMRDD no more. On July 13, 2010, Governor Patterson signed legislation changing the name of the NYS Office of Mental Retardation and Developmental Disabilities (OMRDD) to the Office for People with Developmental Disabilities (OPWDD). Parents, advocates, providers and the disabled had all lobbied for the change as all agree that the word “retardation” was offensive and antiquated. 48 other states have dropped the word retardation from the title of similar statewide offices; only Rhode Island retains it at this point.

New part 599 clinic regulations. These new regulations of outpatient mental health clinics licensed by the NYS Office of Mental Health contain significant and comprehensive changes. Their effective date is October 1, 2010. The new part 599 newly defines services, financing and program rules with emphases on recovery, more responsive services, revised more “cost-efficient” Medicaid reimbursement, a phase out of COPs payments, use of HIPAA compliant coding, and provision for uncompensated care. The clinic restructuring effort is complex to say the least. The OMH is offering classes and online guidance for clinic personnel.

Parental rights of the psychiatrically disabled. New York State Social Services law Section 384-b(4)(c) contains the following grounds for termination of parental rights: “The parents are presently and for the foreseeable future unable by reason of mental illness or mental retardation to provide proper and adequate care for a child who has been in the care of an authorized agency for a period of one year.” The Mental Health Association has been lobbying strongly to eliminate this provision because, they assert, it is discriminatory, based on condition and not behavior, vague, drastic, does not promote recovery, and violates the public policy of encouraging the mentally ill to seek treatment for fear they will lose their children.

Got a website? More and more clinicians do. If you’re HIPAA compliant, then you must post your Notice of Privacy Practices on your website. New York also has strict laws for professionals regarding testimonials, and you need written consent from anyone whose photograph is used on the site.

Another acronym and requirement from Medicare – PECOS. It stands for Provider Enrollment, Chain and Ownership System, and requires Medicare providers to enroll in an online system by April 5, 2010 (not January 4, 2010 as originally required). Even if you’re already enrolled in Medicare, you are supposed to enroll in PECOS. Beginning on April 5, 2010, claims for items or services that you, as a Medicare provider, order for your patients, will be denied if you are not in the PECOS. Most non-medical providers, i.e., psychotherapists, do not order durable medical equipment, prosthetics, orthotics, supplies, home health services and laboratory and imaging services, but some PhD’s and LCSW’s do refer to specialists for which PECOS enrollment is necessary.

Prescription privileges for psychologists, nationwide. Some within the profession faulted psychological associations in New York State in 2003 when they agreed to forgo a fight with psychiatry for prescription privileges, in exchange for psychology being granted a scope of practice that included the independent treatment of mental illness but without prescribing. The New York psychologists’ action may now seems more foresighted. In April 2010, Governor Kulongnoski of Oregon vetoed a law permitting psychologists to prescribe. He thought that more safeguards were necessary to ensure patient safety. A similar law permitting prescribing by psychologists was vetoed in Hawaii in 2007. New Mexico in 2002 and Louisiana in 2004 are the only two states to have passed such laws. Whatever the arguments for better coordination of care when psychotherapy and medications are provided by the same practitioners, it seems that these more current developments suggest that prescription privileges for psychologists (1) may not be inevitable as some have maintained, (2) depend on there being actual shortages of psychiatrists in the state in which they are proposed and (3), last but not least, are dependent on the relative lobbying strengths of the medical and psychology professions in each state.

A new edition of our HIPAA Manual is now available from our office. The older 2007 edition of the Manual is now outdated. Pursuant to the federal HITECH legislation of 2009, new HIPAA Rules take effect in 2010 that mandate changes in the Notice of Privacy Practices, Policies and Procedures Handbooks and Business Associate Agreements, and new breach notification procedures, among others. Relatedly, the FTC has a new “Red Flags Rule” to prevent identity theft, and New York State has changed its record access denial forms and now has its own breach notification law. Certain of the recommended means to comply with the HIPAA Rules have also changed.

The “HIPAA Compliance Manual for Small Mental Health Practices in New York State, Third Edition 2010” has all of the instructions and forms needed for current compliance with the HIPAA Rules and related laws and is designed especially for small mental health practices, those of psychologists, psychiatrists, social workers, mental health counselors, nurse practitioners-psychiatry, marriage and family therapists, creative arts therapists and psychoanalysts. The new edition of the Manual contains 14 new pages (a total of 102), 4 new forms (a total of 21), and numerous textual changes. As with prior editions, we have tried to make it the most accurate, simple, and cost-effective compliance program possible. The new Manual also contains as supplements basic record-keeping templates for psychotherapists and informed consent forms for individual, child, couple and family, and group therapy. Finally, a CD-ROM (Word file) containing the entire Manual is included. Even practitioners who are not HIPAA compliant will find much of the information and many of the forms useful; HIPAA has established new standards of care for the privacy and security of patient health information that are relevant for all practitioners.

An order form for the Manual, which costs $81.25 with tax and shipping can be downloaded at our website, www.brucehillowe.com, or you can call us at 516-877-2016 or 800-286-0369 to place an order.

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

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