HEALTH LAW SUPPLEMENT Spring 2018

Proposed expansion of NYS’s Managed Care Bill of Rights. The current Bill of Rights protects managed care panel members from being terminated as providers without a written explanation and a hearing that includes a clinical peer as a decision-maker. It is believed that some managed care companies evade these due process requirements by waiting until the renewal date of the managed care company’s contract with the provider, and then simply “non-renew,” an action with no due process requirements. The proposed amendments to the Bill of Rights would require managed care companies to observe the same due process requirements for non-renewal as for termination, and would enhance those due process requirements by mandating that the hearing panel include three members, one appointed by the provider. S 3943, A.2707.

Curbside “patient” consultations and confidentiality. This topic was recently in the news following Matt Lauer’s departure from the Today Show due to allegations of sexual harassment. Dr. Laura B, a licensed clinical social worker and sex therapist, revealed to the press that Mr. Lauer had previously consulted with her about his sex life prior to her appearance on his show. Mr. Lauer had asked others to leave the makeup room, and then disclosed to Dr. B that he was having marital difficulties, particularly regarding sex, and asked her whether sex toys might help. Dr. B thought herself able to disclose these revelations made by Mr. Lauer because she believes that she did not engage in a professional relationship with him and therefore owed no duty of confidentiality to him.
These types of consultations are often (mis)characterized as curbside “patient” consultations. In my opinion, from legal (malpractice) and professional (licensing board) perspectives, Dr. B was correct that Mr. Lauer was not a patient and no legal duty of confidentiality was owed to him. He was not a patient because he didn’t pay her, and she presumably took no history from him and therefore did not offer him any individualized professional advice, but rather only generic suggestions.
The ethics of such consultations may be less clear however. Some ethicists have said that if a person attempts to engage a healthcare professional in a private informal consultation, and the professional agrees, then the consulting person might reasonably expect that the professional will maintain the confidentiality of their communications. An alternative for the professional would be to decline to accept any personal information, telling the person that any advice can only be given after establishment of a formal professional relationship.
In a published survey, 75% of health care professionals thought that when a person asks them for advice outside the office setting, it is unacceptable to reveal details of the conversation to others, and 60% thought a professional should be subject to reprimand if he or she discusses with the media a conversation that took place outside the office. “Was Matt Lauer too naive about patient-doctor confidentiality,” Arthur Caplan, PhD, Medscape, 01/08/2018.

Legal risks of using untrained interpreters. Federal law (Title VI of the Civil Rights Act of 1964), NY State law (PHL 4403, 4408 10 NYCRR 405.7) and local law (NYC Human Rights Law, Ch 1, Sec 8-107) all require that healthcare professionals provide interpreters for patients designated “limited English proficient” (LEP). The latter refers to anyone over age 5 who reports speaking English less than “very well.” Enforcement tends to be lax and penalties slight, especially at the federal level. Further, lawsuits by LEP patients are unusual because, it is surmised, the patients are often recent legal or undocumented immigrants who fear being deported. Suits do occur however, occasioned by failure to get an accurate history, to obtain informed consent, or to explain how treatment works, when those failures directly result in patient harm. In a recent study of 35 malpractice cases involving LEP patients, 32 involved the use of incompetent interpreters. In the cases, friends, family members and even children of patients were used as interpreters. In NYS, Medicaid funds are available for payment of interpreters, 42 CFR 438.10, but otherwise the legal requirement is an unfunded mandate, an extra cost to practitioners. Even so, to comply with the laws and reduce malpractice risk, more practitioners than ever are using professional interpreters. “Legal risks when patients don’t speak English well” Leigh Page, Medscape, 02/07/2018.

License tag for professionals in NYS? Proposed legislation approved by The Medical Society of the State of New York, S 5870, A.560, would require all licensed healthcare professionals during all patient encounters to wear a visible and apparent photo identification name tag that includes the practitioners name, large bold lettering which specifies the type of license held by the practitioner, and the expiration date of the license. In its Memorandum of Support, MSSNY cited a study that indicated that 44% of patients believe it is difficult to identify who is a medical doctor and who is not.

Georgia refuses psychology licensure to graduate of online psychology program. In Welcker v Georgia Board of Examiners of Psychologists, A1611970, 03/16/2017, a Georgia Court of Appeals upheld the Board’s decision to deny licensure to a graduate of Fielding Graduate University, an online APA approved PhD program. In 2010, the Georgia Board added to the educational component of its licensure requirement that, “continuous full-time residence” at a doctoral program meant “continuous physical presence” and that “video teleconferencing or other electronic means to meet the residency requirement are not acceptable.” Unlike Georgia, New York State does allow accredited online programs to meet licensing requirements in some circumstances, that is, where the examiners deem the online program the “substantial equivalent” of a New York State licensure-qualifying program.

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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