HEALTH LAW SUPPLEMENT Fall, 2013

New HIPAA Omnibus Rule and new HIPAA Manual now available. By September 23, 2013, covered entities are supposed to be in compliance with the new HIPAA Omnibus Rule. Much has changed including new provisions in the Policy and Procedures Handbook, Notice of Privacy Practices, Business Associate Agreement, Authorization Form, and other forms. What has not changed is the definition of “covered entity,” so if you were not required to be HIPAA compliant before now – that is, if you don’t bill insurers electronically, which to the Department of Health and Human Services makes you a “country doctor”- then you still need not be compliant. The new fourth edition of our HIPAA Compliance Manual for Small Mental Health Practices in New York State, in hard copy with CD ROM, will be ready for distribution the first week of October. Those who order the book before then are also entitled to receive the Manual as an ebook in the meantime. The cost of the book is $81.25 which includes tax and shipping and it comes with a money-back guarantee. Please call my secretary Rita to order the book.

Whither BCBA’s? On July 25, 2013, the NYS Department of Financial Services (formerly Insurance Department) promulgated implementing regulations for Board Certified Behavior Analysts to provide services to persons with Autism Spectrum Disorders under the provisions of New York’s 2011 Autism insurance reform law. Provision of services under that law by BCBA’s has been delayed because the DFS had earlier ruled that BCBA’s must be State licensed to provide applied behavior analysis (ABA), a mental health service. The new regulation indicates that licensure is not necessary to provide ABA services, but apparently that treatment planning for ABA must be developed by a licensed professional. In a somewhat complicated resolution of the problem, approved by the State legislature (A.6963 and S.4862) but as yet unsigned by Governor Cuomo, BCBA will become a licensed profession in the State, and those with the certification will be licensed under an expedited process upon filing with the State Education Department. Right now, it appears that New York will shortly have a new licensed mental health profession.

A new State agency, the Justice Center for the Protection of People with Special Needs, was opened in June 2013. Its constituency includes over 1 million New Yorkers with developmental disabilities, mental illness, substance abuse disorders, and children in residential facilities, who are in or treated in State run facilities or State licensed facilities, i.e., those licensed by the Department of Health (DOH), Office of Mental Health (OMH), Office for People with Developmental Disabilities (OPWDD), Office of Children and Family Services (OCFS), the Office of Alcoholism and Substance Abuse Services (OASAS) and the State Education Department (NYSED). It assumes most of the functions and responsibilities of the Commission on Quality of Care (CQC). Among other functions, it will operate a statewide 24 hour hotline and incident reporting system. All health care professionals who are now mandated reporters of child abuse and neglect to the Statewide Central Register (SCR) are hereafter also mandated reporters of child abuse and neglect to the VCR (Vulnerable Persons’ Central Register) at 855-373-2122 if the child suspected of being abused is a “Vulnerable Person,” that is, a child receiving residential services in a facility operated or licensed by the OCFSS. Suspicion of child abuse or neglect in a day care setting, foster care or within a family home is not to be reported to the VCR, but rather continues to be reportable to the SCR. The Justice Center will also conduct background criminal checks of anyone who is applying to be an employee, volunteer or consultant at a facility operated or licensed by the OMH, OPWDD and OCFS.

Am I responsible for an employee’s breach of confidentiality? This has been an unanswered question for health care professionals under New York State law but will be answered soon. In Doe v Guthrie Clinic (2d Cir., 03/25/2013), a nurse who worked at the Clinic disclosed without authorization to a patient’s girlfriend that the patient had a sexually transmitted disease. The nurse was fired, and the patient sued the Clinic. Under New York law, an employer is liable for the actions of an employee only if the employee was acting within his or her scope of employment and the employee’s actions were foreseeable. Under New York law, employers had not been held responsible for actions of employees taken for personal reasons, and this nurse’s actions were deemed to have been taken for personal not professional reasons. The federal court reviewing the case decided that not to find the Clinic liable under these circumstances might render meaningless the Clinic’s obligation to maintain confidentiality because unauthorized breaches are usually made outside the scope of employment. So the federal court asked New York’s top court to re-consider the issue, which it agreed to do. Whatever the New York court’s answer, it is imperative that health care professionals with employees educate them about the necessity of maintaining the confidentiality of patient information. HIPAA compliant employers must have employees sign an acknowledgment that they have been so educated.

The NYS Department of Labor’s strict guidelines for independent contractors. Many clients render professional services through independent contractors, and recently quite a number have been subject to audit by the NYSDOL because of it. Contractors are hired to save on some of the expenses incurred by employers for employees, i.e, for withholding income and FICA taxes, unemployment insurance, workers compensation insurance, and mandatory disability insurance. The NYSDOL auditors have been imposing strict criteria, stricter than those of the IRS, for who can be characterized as a contractor. Contractors who do not have a private practice of their own and who do not offer (or are not permitted to offer due to restrictive covenants) their services to other practices are often deemed to be employees rather than contractors. Other criteria include a written contract, contractors’ ability to refuse work and set their own hours, having their own D.B.A., EIN or corporate entity, having their own liability insurance, and not being or having to be officially supervised (that means that limited permittees and LMSW’s cannot be contractors as they must be officially supervised). Re-characterization of contractors as employees by the NYSDOL can carry significant financial penalties.

In June 2013, OMH announced a new program, OnTrackNY, designed to help schizophrenic young adults. This OMH program partners with private institutions including North Shore LIJ and Kings County Medical Center, and provides to young persons ages 16-30 with emerging psychoses support services so that they might be better able to stay in school and obtain work. Participants are treated by a team consisting of a recovery coach, employment/educational specialist, and a psychiatrist and nurse among others.

In August 2013, the I-STOP (Internet System for Tracking Over-Prescribing) went into effect. The law requires all prescribers to consult with the Prescription Monitoring Program (PMP) before prescribing controlled substances. The State DOH will maintain information on the PMP of all patients’ controlled substance prescription history. If the practitioner suspects diversion, then he or she may contact the Bureau of Narcotic Enforcement.

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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