HEALTH LAW SUPPLEMENT Spring 2015

Bruce to offer CE course for LMSW’s and LCSW’s. Bruce has been approved by the New York State Education Department as a provider of NYS Continuing Education credits for LMSW’s and LCSW’s. (Bruce V Hillowe, JD, PhD, SWCPE #0047.) He is offering a 5 hour, 5 CEU credit course on “Legal and Ethical Issues for Social Worker – Psychotherapists” on Saturday May 30, 2015 from 8:30 AM to 1:30 PM at Adelphi University in Garden City. Continental Breakfast will be served. The cost is $99 for pre-registration, $129 for registration at the door. Topics will include record-keeping, informed consent, child abuse reporting, at-risk patients, access to records, confidentiality, privilege, subpoenas, termination of treatment and avoiding abandonment, and general risk management. He will also provide templates for documentation. Participants will receive a personalized Certificate of Completion as required for social worker licensure registration. There is further information about the course and a registration form at our website, www.brucehillowe.com at the “CE Programs” tab. You may also call him at 516-877-2016 for more information.

Telehealth reimbursement comes to New York State. In December 2014, Governor Cuomo signed into law a telemedicine/telehealth mandate. The new law (Chapter 550 of the Laws of 2014) becomes effective January 1, 2016 and requires that health insurers and Medicaid reimburse for health care services that are provided by electronic means if the health services would be otherwise covered. For instance, if a health insurer reimburses for in-person psychotherapy, then they must reimburse for telephonic or Skype-type psychotherapy. The new law makes specific reference to psychologists and social workers making clear that psychotherapy is a covered service under the new mandate. (Under New York Freedom of Choice law, insurers are not obligated to reimburse for the services of licensed mental health counselors, psychoanalysts, marriage and family therapists, and creative arts therapists, NY Insurance Law §3221 et seq). New York State joins 22 other states that already have similar mandates. It remains to be seen how these newly reimbursable teleheatlh services will be coded, as the AMA’s CPT has previously taken the position that current psychotherapy codes are appropriate only for face-to-face sessions (Medicare reimburses for limited instances of teletherapy and uses the standard codes, but adds a “GT” modifier.)

The new law removes one of the two major obstacles to telehealth, that of insurance reimbursement. The remaining obstacle is state licensing laws that were enacted when telehealth was unimaginable. Most states construe their licensing laws to require that if a practitioner who is licensed in a state wishes to use electronic means to treat a patient in another state, then the practitioner must also be licensed in the state where the patient is located when treatment is provided. Most states grant temporary guest licensure to professionals licensed in another state but that resolves only the short term problem of facilitating transfer of treatment when a patient moves to another state. In September 2014, the Federation of State Medical Boards finalized a model for an interstate compact for licensure of health care professionals with the goal of reducing barriers for practitioners who are looking to obtain licenses in multiple states to facilitate both portability and telemedicine. Incorporation of that compact into state law will be the last hurdle for telemedicine.

New York may drop its physician profile website. Governor Cuomo has proposed defunding of the www.nydoctorprofile.com website that contains information about physicians’ education, litigation and disciplinary actions. Physicians are now obligated by law to maintain the accuracy and completeness of their profiles. Created in 2000, the rationale for the website was greater transparency. The Governor believes that privately maintained websites that rate physicians have made the State website redundant. A coalition of patient and consumer advocacy groups opposes the defunding.

Elder abuse training; should it be mandatory in NYS? A bill (A04422) has been introduced in the New York State legislature to require physicians and psychologists, as well as a group of physical healthcare practitioners, to complete two hours of coursework in identifying and reporting abuse of the elderly. All states have elder abuse reporting laws. In most cases, reporting is mandated; in a few states, among them New York, reporting is merely encouraged (NY Social Service Law §473). But New York also requires that licensed healthcare professionals maintain confidentiality unless authorized by patients to disclose, or unless a disclosure is legally required such as of child abuse or under the NY SAFE Act. New York currently provides no legal protection for healthcare professionals from prosecution by licensing boards for unauthorized or non-mandatory disclosures of elder abuse.

A bill to allow physicians and psychologists to form multi-disciplinary practices. A bill (S03481) was introduced in the New York State legislature that would allow physicians and psychologists to form PLLC’s, PC’s and partnerships as co-owners. Currently such co-owned multi-disciplinary practices violate NY State’s prohibition against fee-splitting. Votes on the legislation have been delayed for the past two years. The New York State Psychiatric Association (NYSPA) strongly opposes the bill, primarily based on its belief that it will encourage non-psychiatrist physicians and psychologists to form multi-disciplinary entities that will replace psychiatrists who are better qualified to medically treat mental illness. NYSPA believes that the psychologists in such entities would give advice regarding psychotropic medications to the prescribing non-psychiatrist physicians (NYSPA, Memorandum in Opposition, 02/27/2013). Based on my experience, that may not be a fair criticism. We are regularly asked by physicians and psychologists who work together if they can form co-owned multi-disciplinary practices, and the physicians doing the asking are almost always psychiatrists, not non-psychiatrist physicians. And, in any case, it would be a foolhardy non-psychiatrist physician who would prescribe beyond the scope of his or her competence based on the advice of a non-physician.

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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