HEALTH LAW SUPPLEMENT Spring 2012

No action yet on EMR incentives for mental health professionals. Congress allocated about 20 billion dollars as part of the American Recovery and Reinvestment Act of 2009 (ARRA) to encourage the use of electronic medical records (EMR) (aka electronic health records, EHR). Medical professionals who participate in Medicare and/or Medicaid and who use certified EHR technology are eligible for financial incentives of up to over $100,000 if they begin participation by 2012. Psychologists and social workers were not included in the original legislation. Recently, a bill was introduced in the US Senate to expand the Medicare and Medicaid EHR incentive programs to include mental health professionals, “The Behavioral Health Information Technology Act of 2011 (S.539).” Psychiatric facilities were also left out of the original ARRA and would be included under S. 539. No action has yet been taken on S. 539.
Many health care professionals are under the impression that there is a mandate to convert to EHR. There isn’t. Rather, HHS is employing a “carrot and stick” approach using financial incentives under ARRA, and as of 2015, reductions in Medicare reimbursement for those who have not converted to EHR.

ICD-10 coding to become mandatory under HIPAA. Starting October 2013*, healthcare providers will be required to convert to using ICD-10-CM (International Classification of Diseases, 10th Revision, Clinical Modification) as a coding system for diagnoses. The ICD system is created by the US National Center for Health Statistics and Centers for Medicare and Medicaid Services. The American Psychiatric Association will shortly release its revised DSM- 5. However, the DSM derives its code numbers from the ICD system and the DSM is not itself approved by HIPAA. In fact, some of those who have objections to the new DSM-5 (based on preliminary drafts) assert that rather than use the DSM-5’s new classification system, they will ignore it and simply use and convert old DSM-IV diagnoses to their ICD-10-CM diagnostic code numbers; the conversions are available online. *The date may be extended.

APA recommends not googling patients. The American Psychological Association through a published statement by its Ethics Committee to graduate students, takes the position that psychologists should not search patients online without their consent, apparently out of concern for the impact on the therapeutic relationship. Presumably, privacy interests were also implicated. Searches may be warranted if the motivation is to protect the safety of a patient or someone else. Enforcement will likely prove problematic. (APA Web Exclusive, Chamberlin, J., “Is it ever OK for a therapist to snoop on clients online?”)

NYS Subpoena duces tecum law amended. The law regarding subpoenas duces tecum (for records) of healthcare information in NYS was unclear in that it previously stated that practitioners might ignore subpoenas if they were unaccompanied by a HIPAA-compliant authorization of the patient. (CPLR 3122(a)). The law gave no guidance as to what action a practitioner should take if a subpoena was unaccompanied by a patient authorization, but was signed by a judge (“So ordered”). Attorneys were divided on the proper response to such subpoenas; some advised healthcare clients to move to quash them and some advised clients to comply in some manner with the judge’s order regardless of the lack of an authorization. A new law has clarified the issue. Laws of New York, 2011, Chapter 307, states explicitly that a judicial order can substitute for the absence of a patient authorization.

Medicare “doc fix” passed but psychotherapy extender declined. On February 17, the US Senate approved legislation delaying for a year (again, as it has every year since 1998), until January 1, 2013, a scheduled 27.4% reimbursement cut in payments for all medical services. But Congress voted to eliminate the “psychotherapy extender” effectively cutting Medicare reimbursement of psychotherapy services by 5%. The psychotherapy extender had been passed four of the last six years, but not this time.

NPDB re-opens data access to researchers. The National Practitioner Data Bank (NPDB) was created in 1986 to improve the quality of health care by restricting the ability of health care professionals to change practice locations without the disclosure or discovery of their previous negligence or incompetence. The law assumes that malpractice awards and settlements, and certain sanctions of health care professionals by State Boards and health care institutions, are evidence of negligence or incompetence.
Malpractice insurers are required to report to the NPDB all settlements and awards paid on behalf of health professionals. State Boards are required to report sanctions of health professionals involving professional competence or conduct to the NPDB.
Reports to the NPDB include the name, address, license number and academic background of the health professional; a description of the acts or omissions of the provider on which the claim or sanction was based; and the amount of any settlement, or disposition.
Information at the NPDB is not available to the general public, and is considered confidential. It is available to: hospitals and other health care institutions; state licensing boards;
professional societies that engage in formal peer review; and health professionals who request information about themselves. Until recently it had also been available to researchers who were not, however, provided with any identifying data about reported practitioners.
Last year, a researcher, a reporter for the Kansas City Star who had gained access to NPDB information used the data in combination with other research, i.e., a cross reference to court records, and publicly identified a neurosurgeon with a long history of malpractice awards and settlements. The Department of Health and Human Services promptly cut access of all researchers to the NPDB. Recently HHS reopened access to researchers again, but with new rules that prohibit them from using NPDB data to publicly identify reported practitioners.

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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