HEALTH LAW SUPPLEMENT Fall 2015

ICD-10 (International Statistical Classification of Diseases and Related Health Problems-10; Chapter V, Mental and Behavioral Disorders (aka “The Blue Book”)): On October 1, 2015, all HIPAA compliant entities will be required to use ICD-10 diagnostic codes. Non-compliant entities will risk non-payment by insurers of submitted claims if the providers fail to use ICD-10 coding. ICD-10 codes are considered an upgrade from ICD-9 because there are more of them, permitting greater specificity in diagnosis.

ICD-10 does not make DSM 5 obsolete. In fact, it makes the DSM 5 even more essential. Providers are expected to use DSM 5 to make correct diagnoses, and then “cross-walk” from the DSM diagnosis to the ICD-10 code. The ICD-10 does not itself contain information adequate to determine diagnosis; it is just a listing of illnesses and their codes. The DSM 5 published by the American Psychiatric Association contains all corresponding ICD-10 codes. (The DSM IV only contains ICD-9 codes so it is now wholly unusable.)

On July 6, 2015, the American Medical Association (AMA) and the Centers for Medicare and Medicaid Services (CMS) jointly announced that the CMS will have a grace period until October 1, 2016 during which Medicare claims won’t be denied solely on the basis of lack of specificity of ICD-10 coding.

Technicians and Psychological Testing in NYS: As of June 17, 2015, both the Assembly and Senate of the New York State Legislature had passed a bill which would allow unlicensed testing technicians to administer and score standardized objective psychological and neuropsychological tests which involve specific predetermined and manualized procedures (A3563-A, S01865 ). The Governor has not yet signed the bill.

As the rationale for the bills, the accompanying Memo reads: “Prior to the enactment of the psychology scope of practice law (Chapter 676 of the Laws of 2002) testing technicians routinely and successfully administered and scored standardized objective psychological and neuropsychological tests. The legislative intent of the psychology scope of practice law was not to change the practice of psychology. In 2003, the State Education Department issued a letter interpreting the 2002 statute as excluding the use of testing technicians for administering and scoring neuropsychological tests, on the grounds that test administration and scoring was captured within the scope of the practice of psychology. The proposed legislation would reverse the negative impact of the 2003 interpretive letter, which severely limited access to these critically needed services, particularly for ethnic minority patients and those from low socioeconomic backgrounds. The legislation would require that testing technicians have a Bachelor’s degree in psychology or a related field; be trained by a licensed psychologist in a non-school setting where the ratio of technician to licensed psychologist does not exceed 3:1; and also requires that technicians not provide opinions or interpret data.”

Mandatory offering of out-of-network coverage proposed for NYS: Many clients who are mental health professionals and are not on insurance panels have worriedly inquired of us about the future of insurance reimbursement to their patients for the providers’ out of network services. NASW-NYS, NYSSCSW, and both NYSPA’s are supporting a bill that would require health care insurers in New York State to offer optional coverage for care provided by out-of network practitioners (A00790). The Affordable Care Act (“ACA” or “Obamacare”) does not mandate out-of-network coverage, and as a result many insurers have discontinued offering consumers the option of an insurance plan that provides such coverage. No current New York State law requires that insurers offer out-of-network coverage either, and consequently most do not. This bill would require insurers who offer health insurance in New York State, whether inside our exchange (the New York State of Health) or outside of it, to offer out-of-network coverage as at least one policy option, and as an optional rider on other policies. Of course, such an option would likely cost more than those with limited networks, but, as the legislation states, it would, “provide and protect consumer choice, and ensure patients can maintain access to the provider of their choice.”

Change to Medicare Opt-Out Law: Under the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), valid opt out affidavits signed by practitioners on or after June 16, 2015 will automatically renew every 2 years. Prior to the enactment of MACRA, practitioner opt out affidavits were only effective for 2 years. Note however, that valid opt out affidavits signed before June 16, 2015 will still expire after 2 years; if practitioners who filed affidavits before that date want to extend their opt out , they must submit a renewal affidavit within 30 days after their current opt out period ends. If practitioners do not wish their opt out affidavits to automatically renew, then they must cancel the affidavit in writing at least 30 days prior to the start of the next (2 year) opt out period.

HIPAA Privacy Rule and Email: There seems to be a lot of confusion about whether HIPAA permits the use of email between health care professionals and their patients. I have seen misinformation disseminated, some well-intentioned, some self-serving. Here is what HHS (the United States Department of Health and Human Services) on its FAQ page says in response to the question of whether HIPAA compliant practitioners may email patients:

“Yes. The Privacy Rule allows covered health care providers to communicate electronically, such as through e-mail, with their patients, provided they apply reasonable safeguards when doing so. For example, certain precautions may need to be taken when using e-mail to avoid unintentional disclosures, such as checking the e-mail address for accuracy before sending, or sending an e-mail alert to the patient for address confirmation prior to sending the message. Further, while the Privacy Rule does not prohibit the use of unencrypted e-mail for treatment-related communications between health care providers and patients, other safeguards should be applied to reasonably protect privacy, such as limiting the amount or type of information disclosed through the unencrypted e-mail. In addition, covered entities will want to ensure that any transmission of electronic protected health information is in compliance with the HIPAA Security Rule requirements .

Note that an individual has the right under the Privacy Rule to request and have a covered health care provider communicate with him or her by alternative means or at alternative locations, if reasonable. For example, a health care provider should accommodate an individual’s request to receive appointment reminders via e-mail, rather than on a postcard, if e-mail is a reasonable, alternative means for that provider to communicate with the patient. By the same token, however, if the use of unencrypted e-mail is unacceptable to a patient who requests confidential communications, other means of communicating with the patient, such as by more secure electronic methods, or by mail or telephone, should be offered and accommodated.

Patients may initiate communications with a provider using e-mail. If this situation occurs, the health care provider can assume (unless the patient has explicitly stated otherwise) that e-mail communications are acceptable to the individual. If the provider feels the patient may not be aware of the possible risks of using unencrypted e-mail, or has concerns about potential liability, the provider can alert the patient of those risks, and let the patient decide whether to continue e-mail communications.” http://www.hhs.gov/ocr/privacy/hipaa/faq/health_information_technology/570.html

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.

Categories