HEALTH LAW SUPPLEMENT Spring 2016

The New York State telehealth coverage law which took effect January 1, 2016 adds a new Article and section to New York Public Health Law, Article 29-G and Section 4406-g respectively. It amends several sections of New York Insurance Law, including Sections 3216, 3217-h, 3221, 3229, 4303 and 4306-g, and amends New York Social Law Section 367-u. New York is now one of 28 states that has a telehealth parity law. The new law requires commercial health insurers to cover services provided by means of telehealth if those services would be reimbursed if rendered face-to-face in an office setting. Telehealth is defined as assessment, diagnosis, consultation, and treatment by the “use of synchronous two-way electronic audio- visual communication” while a patient is at a site other than the provider’s office, including at the patient’s place of residence.
Professions covered by the new law include physicians, nurse practitioners, psychologists and social workers among others. The professions of mental health counseling, marriage and family therapy, psychoanalysis and creative arts therapy are not included and likely will not be reimbursed for telehealth services. Telehealth services do not include “audio-only telephone communications (i.e., telephone calls), facsimile machines or electronic messaging (i.e., email) alone.”
Inexplicably, the new law allows commercial insurers to deny reimbursement for telehealth services to providers who are out-of-network. In an apparent attempt to prevent insurers from “red-flagging” telehealth for more frequent audits, the law, while it allows insurers to subject telehealth services to utilization review and quality assurance requirements, mandates that those measures be “consistent with those established for the same service when not delivered via telehealth.”
The new law also establishes Medicaid reimbursement for telehealth services for certain providers, but the provisions applicable to Medicaid differ from those applicable to commercial insurers in that Medicaid reimbursement is disallowed when patients are receiving services at their own homes; they must be located at one of a variety of healthcare facilities.
Commercial insurers who have addressed the new law have indicated that they will reimburse for psychiatric and psychotherapeutic services as required by the new law when the customary CPT codes for such services are used with a “GT” modifier, with GT indicating a “face-to-face encounter utilizing interactive audio-visual communication technology,” e.g., United Healthcare Reimbursement Policy, Administrative 114.24, January 1, 2016. It would seem that the site of service on a typical claim form (e.g., CMS 1500, item 24B) would be either “Office” or “Home;” perhaps the former because the latter is often non-reimbursable.
“Interactive audio-visual communication technology” of course includes Skype, but that service is not HIPAA compliant. Two HIPAA compliant technologies are Vsee and Securetelehealth.
In recent communications involving teletherapy, New York State licensing boards for the mental health professions have indicated that they recommend, if not as yet require, the use of written consent forms specific to teletherapy when that modality is used. Clients can contact our office for a sample consent form to teletherapy.
The New York State Department of Health has promised but has not as yet delivered further implementing regulations for the new telehealth law, see NYS DOH “New York Telehealth Parity Law Update,” Lisa Ullman, November 2015.
Note that this new law does nothing to expand the interstate practice of teletherapy. All states have regulations prohibiting the practice of psychotherapy by practitioners who are unlicensed, and practice location is usually defined as the place where the patient is when services are rendered. Indeed, due to those regulations, because of their states of residence, certain patients of New York practitioners should probably not be offered teletherapy at their homes. This category of patients would include those who live in neighboring states and otherwise commute to their visits with a therapist licensed and located in New York State.

“Date of Discovery” Rule proposed for New York State malpractice actions. New York’s Statute of Limitation for malpractice is a “Rule of Injury” type, that is, lawsuits must be commenced within 2½ years for physicians or 3 years for other mental healthcare professionals, from the date the alleged malpractice occurred. In general, New York courts have strictly construed these time limits. Bills have been introduced in the Assembly (A285) and Senate (S911) that would change New York’s law to a “date of discovery” type, which would allow the Statutes of Limitation to run from the date an injured patient discovers or should have discovered, that they have been injured by malpractice, but no longer than 10 years after the date of the alleged malpractice. Date of discovery rules are also called “awareness doctrines.”
Advocates of the new law argue that the extension would bring New York into alignment with the majority of other states that have “date of discovery” rules. The “date of discovery” rule was “formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action.” Hammer v Hammer 418 NW2d 23 (Wis Ct App 1987). In the area of mental healthcare law, “date of discovery” rules are considered essential by attorneys who represent plaintiffs who claim sexual abuse and other boundary violations by therapists. Victims of such boundary violations may not recognize the harm or the extent of the harm that they have suffered as a result of the violations for a significant period of time after the violations have occurred, often not until the “rule of injury” time bar has elapsed.
Opponents of the change include the New York Medical Society and argue that it would greatly increase malpractice actions and damages, and therefore premiums for malpractice insurance. They argue that if justice indeed requires such a change, then it should be accompanied by statutory caps on non-economic damages (i.e., pain and suffering) in order to offset the costs of the change.

A new bill to add protections for in-network providers. Currently, under New York law, health insurers cannot terminate, that is prematurely end a provider’s contract before the term expires without affording the practitioner certain due process rights including an explanation of the reasons for termination and an opportunity to offer a defense. However these protections do not apply when an insurer wishes to non-renew a practitioner’s contract; that is, not offer a new contract when the current contract term expires. The new bill, A1212, would require insurance companies to provide the same due process rights upon non-renewal as for termination.

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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