HEALTH LAW SUPPLEMENT Spring 2004

NEW MEDICARE RECORD-KEEPING REQUIREMENT. In its September 2003 newsletter, Empire Medicare announced that it will henceforth require in its healthcare record audits that the patient’s name appear on every page of the clinical record, and that practitioners, even solos, sign every progress note.

OXFORD DROPS DEMANDS FOR FEE REFUNDS. In December, Oxford agreed to withdraw demands previously made to a number of psychotherapists it had audited, that fees be refunded because, Oxford had alleged, the quality and quantity of progress notes justified only brief (20 – 30 minute), sessions not the customary 45 minute session that was actually provided. Oxford claimed that record-keeping requirements were violated but was ultimately unable to sustain this assertion. In addition, Oxford’s contract with practitioners had no provisions for refunds on the basis stated. The American Psychological Association, the New York State Psychological Association, the New York State Psychiatric Association and several private attorneys (including this firm) cooperated on the common response to Oxford’s demands that eventuated in their withdrawal.

WHITHER TARASOFF IN NEW YORK STATE? In a recent case decided by a New York State appeals court, a psychiatrist treating a mother on an out-patient basis for psychotic depression was not liable for injuries she caused her 9 year-old son by stabbing him (she reportedly believed he was the devil). The patient had no history of violence, but more importantly the court held that the doctor, in any event, had no duty to protect the patient’s child.
Tarasoff and its successors have held that mental health professionals do have a duty to protect third parties endangered by their patients, because a “special relationship” exists between therapists and patients. This New York court explicitly held no such special relationship exists under New York law. (Pingtella v. Jones, Appellate Division, 4th Dept., 05/02/2003)

Like almost all health attorneys, we routinely counsel mental health practitioners that although New York State does not impose a duty to protect (an aspect of which is a duty to warn) on therapists either in its statutes or case law, most times it is prudent to act as if a duty to third parties does exist, within limits framed by considerations of patient confidentiality. Some prior holdings by New York courts have suggested that a duty to protect might exist, though only in dicta (statements not essential to the decision and with no precedential value). This court’s holding is a reminder that New York law remains unclear in this area, and that when a patient endangers a third party, legal, ethical, professional and moral considerations weighing privacy against. safety must be carefully and thoroughly analyzed based on the particular facts of the case.

REASONABLE CAUSE TO SUSPECT CHILD MALTREATMENT Many of our psychotherapist clients call and wish to consult briefly when they are unsure about whether a report of child maltreatment to the authorities is mandatory. In New York State, a report should be made only when a therapist “reasonably” suspects that abuse or neglect has occurred. The standard for “reasonableness” is an objective one. A way to think about the standard is, “Would your colleagues agree, if you explained the situation to them, that they too suspect abuse or neglect in this case?” Certainty is not required. One New York court put it so: “The Social Service Law does not require that conclusive proof of child abuse be obtained before a report to protective service officials must be made… Mandated reporters need not await conclusive proof of abuse or maltreatment but must act on their reasonable suspicions and the law allows them a degree of latitude to err on the side of protecting children who may be suffering from abuse,” Isabelle V. v. City of New York 150 AD2d 312, 313 541 NYS2d 809 (1 Dept 1989).

Two categories of evidence can give rise to suspicion; direct and circumstantial evidence. Direct evidence might be:

■ a child or parent describing behavior that falls within the definitions of abuse or neglect,
■ a parent who is clearly disabled because of substance abuse, mental retardation or severe mental or emotional illness, or
■ observed injuries to a child that ordinarily could not be sustained by accident, accompanied by inadequate explanations of the injury.

Direct evidence will ordinarily give rise to a reasonable suspicion, unless you have a specific and very good reason not to believe it. Circumstantial or indirect evidence is different. Circumstantial evidence would include certain behaviors of children such as running away from home, or aggressive or self-injurious conduct that are suggestive of possible neglect or abuse. You must weigh and assess such circumstantial evidence. Don’t act on “gut feelings” or blind hunches. Do consult with knowledgeable colleagues and research professional literature describing circumstantial evidence that might give rise to a reasonable suspicion. Be aware that many of the indirect indications for child abuse and neglect are non-specific. They may be indications of other situations and not only of abuse or neglect.

One tactic some therapists have successfully used when they are uncertain of the necessity of a report is to call the Child Abuse Registry (the special hotline for mandated reporters is 800- 635-1522), and ask the caseworker if they might describe a situation without revealing their names or that of their patients, and then obtain the worker’s opinion about whether a report must be made. Many times the caseworker will cooperate. In this way, a therapist can know that the report must be made and will be accepted before deciding whether and how to inform the patient of the necessity of a report.

There is no doubt that mandatory reporting of child maltreatment has saved many children’s lives. When a report is necessary, it must be made. Still, entering a child or family with whom you have a professional relationship into the child protective services system is likely to harm or jeopardize your alliance with them. Many times, a report marks the end of effective therapy. Although there are strategies for mitigating such negative impact, patients are likely be afraid, angry or feel betrayed. Sometimes a thorough analysis of the standard for reporting as it pertains to a given situation may result in avoidance of an unnecessary report, and the harm it may cause.

PLEASE KEEP IN MIND THAT INFORMATION IN THE NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING YOUR CIRCUMSTANCES.

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