HEALTH LAW SUPPLEMENT Spring 2014

ICD 10 compliance is nearing: The deadline for use on insurance claims of ICD 10 diagnostic coding, in addition to or instead of DSM 5, is October 1, 2014. The US has been using ICD 9 in addition to the DSM for mental health for decades while most other nations have been using ICD 10. HIPAA mandates the use of ICD 10 throughout the US by the October deadline. Even non-covered entities such as Workers Compensation will be switching to ICD 10. Conversions from DSM 5 diagnoses to ICD 10 can be found in the DSM manual but the crosswalk sometimes works imperfectly. For example ICD 10 still uses “substance abuse” and “substance dependence” as diagnostic criteria but DSM 5 has eliminated those distinctions. In many cases, clinical documentation will still be expected by insurers to conform to DSM 5. Mental health practitioners will likely need to be well versed in both systems. Information about ICD 10 can be found at www.cms.gov/ICD10/.

A new mental health profession in New York State: Governor Cuomo signed a bill creating a new licensed mental health profession: Licensed Behavior Analyst. The law goes into effect on July 1, 2014, except that persons who are currently certified by the Behavior Analyst Certification Board may apply immediately for licensure. Board Certified Behavior Analysts will continue to be automatically eligible for licensure, while those without such certification will be eligible for licensure if they have a Master’s degree in an appropriate field and meet character and fitness requirements. The scope of practice for Licensed Behavior Analysts is limited to providing behavioral analysis and treatment for persons on the autistic spectrum, with that diagnosis being provided by another mental health professional who is licensed to make such diagnoses, e.g., MD, PhD, LCSW. Licensed Behavior Analysts are not themselves permitted to make diagnoses. The law also creates a bachelors level certification, Assistant Behavior Analyst, for paraprofessionals.

California law prohibiting gay conversion therapy is constitutional: In August 2013, the US Court of Appeals in California upheld a California law banning gay conversion therapy. The law had been challenged on the grounds that it violated the First Amendment of the US Constitution because it prohibited certain psychotherapists from expressing their viewpoints about same-sex relationships, and thus abridged their right of free speech. The decision of the court hinges on the distinction it made between protected speech on the one hand, and conduct that can be regulated on the other. The court found that California had banned certain conduct – gay conversion therapy – that only incidentally involved speech. The conduct involved can be regulated just as the state can regulate any medical or mental health service by a professional licensed by the state.

Liability protection proposed for Medicare and Medicaid providers: The recently proposed federal Saving Lives, Saving Costs Act, if passed, would create “safe harbors” for healthcare professionals who follow best practices guidelines that would be established and published by a panel of experts. A healthcare professional being sued for malpractice by a Medicare or Medicaid recipient would then be able to claim that he or she followed best practices guidelines in treating the patient. The malpractice action would be suspended and the issue of whether the guidelines had been adhered to would be decided by an independent review panel. If the panel found that the guidelines had been followed, then the malpractice case would be dismissed unless the plaintiff was able to prove that the review panel was in error, “by clear and convincing evidence” (a threshold midway between “preponderance of the evidence” and “beyond a reasonable doubt” criteria).

The final parity rule; who will enforce it? The rule enforcing the federal 2008 Mental Health Parity and Addiction Equity Act was finally published by the Departments of Treasury, Labor and Health and Human Services in November 2013. Because health insurance plans change each January 1, the new rule won’t take effect widely until January 2015. The rule establishes the principle that state governments rather than the federal government will have the main role in enforcement. In New York State, that means enforcement will be by the Department of Financial Services (formerly the State Insurance Department). Stakeholders including professional associations are currently advocating for DFS to create a bureau specially dedicated to enforcing the parity rule. As discussed in our last Newsletter, violations of the parity rule appear to be common, largely because of a lack of enforcement. Maybe a new State bureau would fix that.

Appellate court rules that underpayments must be considered when determining overpayment by insurer: A New York State appellate court in Bulmahn v NYS OMIG, 106 AD3d 1504 (4 Dept 2013) affirmed the principle that insurers may use extrapolation methods to calculate overpayments when the number of claims is voluminous, and that the extrapolation method will be presumed valid unless there is evidence to the contrary. However, in the case, the Court found that the failure by the insurer to consider underpayments to the provider when calculating potential overpayments was “irrational and unreasonable” and resulted in an inaccurate calculation of the amount of overpayment.

Professional discipline for sexual misconduct occurring 28 years ago approved: Alabama, like New York State, has no statute of limitations for professional disciplinary complaints to licensing boards. (In contrast, the statute of limitations in New York State for civil malpractice for non-physicians is 3 years, for MD’s 2½ years). A psychologist was found guilty of sexual misconduct that occurred in 1982, but claimed that it would be unfair to prosecute him due to the general legal principle of a “right of repose” (a right of alleged wrongdoers to be left alone if alleged victims don’t seek to vindicate their rights within a reasonable amount of time) and also because the records he maintained that might exculpate him had been destroyed in accord with Alabama laws permitting destruction of records after a mandatory retention period. The court found that the psychologist had not demonstrated with specificity how the passage of time or destruction of records placed him at an unfair disadvantage and so allowed the prosecution of the psychologist. Alabama Board of Examiners in Psychology v Hamilton, Court of Civil Appeals of Alabama 2013.
While my experience with prosecutors of licensing board complaints in New York State is that they do not as a general rule prosecute very old cases as a matter of prosecutorial discretion, this case suggests the legal arguments that would ensue if they chose to do so.

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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