HEALTH LAW SUPPLEMENT Spring 2019

Websites and ADA compliance: An increasing number of businesses with websites that cannot be navigated by blind and deaf persons have been sued for lack of compliance with the Americans with Disabilities Act (ADA). It’s Title III of the ADA that’s relevant in that it requires “public accommodations,” which include offices of healthcare providers to remove barriers that are “readily achievable,” meaning that are accomplishable without undue difficulty or expense. In applying the ADA to businesses, courts first look to see whether there is a nexus between a website and a physical location for the business, a criterion that is almost always met for healthcare providers. Next, courts look to see whether a website actually markets goods or services, or simply advertises their availability at a physical location. If the former and a website markets services – for example, allows patients to schedule appointments or to contact the provider for telehealth services – then the lack of accessibility to disabled users is more likely to be legally actionable. The US Department of Justice has not issued guidelines so questions about the meaning of “readily available” remain, especially for small practices. Rewriting source codes for websites to include text to audio conversion for the blind and audio to text conversion for the deaf is complex and expensive. There were 814 website-access ADA lawsuits against businesses in 2017 and 2250 in 2018, most in New York or California (Seyforth, Shaw, ADA Title III News and Insights). Plaintiffs in such suits are not permitted money damages, only legal fees. Legal fees are usually under $20,000 and the suits usually result in an agreement by the business to improve the accessibility of its website.
It may get even harder to hire independent contractors. In recent years, regulatory and taxing authorities have increasingly narrowed the definition of independent contracting. Healthcare practices in New York State that hire 1099 contractors, usually to save money, have increasingly been audited and informed that they have mischaracterized as contractors persons who should have been properly labeled as W2 employees, with attendant and significant taxes and penalties due for the prior mischaracterization. Often the basis for the adverse finding is that the practice hired the supposed contractor full-time, or supervised or imposed restrictions on him or her, whereas exclusive labor, supervision and restrictions are generally limited to an employment relationship. Now the California Supreme Court in Dynmex Operations West v Superior Court has added an even more stringent criterion that virtually prohibits independent contracting of the type used by mental health practices. The test is that “the service provider must perform services that are outside the usual scope of the company’s business.” Thus, if audited, a healthcare practice that hires 1099 contractors must demonstrate that the licensed provider it engaged as such provides a service that is outside the usual scope of services of the practice. The court seemed to indicate that it would deem all providers to be in the same business even when the providers have different specialties or licenses. In other words, a mental health practice cannot hire mental health professionals, even ones with differing licensure, as contractors. Given current legal trends, it may be only a matter of time before this test spreads beyond the borders of California. If it is adopted in New York, then independent contracting among health care professions will become an obsolete practice.
Finally, continuing education required for psychologists in NYS. On December 21, 2018 the governor signed a bill (S.7398/A.9072) that will require psychologists to complete at least 36 hours of continuing education (CE), including in ethics, every three years in order to be able to reregister their licenses as is required triennially. For unclear reasons, psychology is the last of the mental health professions in New York State on which this CE requirement has been imposed.
The soft cap on nonprofit healthcare executive compensation is struck down. The New York Court of Appeals (LeadingAge Inc v Shah, 2018) has eliminated a limitation on the salaries of NYS nonprofit healthcare entities that had been imposed by regulators at the NYS Department of Health (DOH). Regulators in January 2012 had promulgated Executive Order 38 (EO38) comprised of a two-part cap on compensation of such executives. The regulators and governor formulated the regulation without any enabling legislative action having been taken. The first or hard cap of EO38 limited the proportion of state funds (Medicaid, etc) that a provider could use to compensate executives to 15% of those funds. The second, or soft cap essentially limited executive compensation to $199,000 annually from any source, public or private, with some exceptions allowed in accordance with comparability surveys and an accompanying waiver. In my experience of late, exceptions to the rule had become more common than adherence to it. The Court stated that DOH regulators had exceeded their authority in imposing a limit on how a nonprofit entity uses its private funds, stating that in the absence of a law (not regulation) to the contrary, it remained the prerogative of a nonprofit agency to use its private funds to “compensate its executive staff handsomely or even excessively.” The Court indicate that the limit might be reinstated by legislative, not regulatory, action.
Supervisor and not supervisee is liable for malpractice. In Blendowski v Wiese (4th Dept, 2018) the court dismissed as a defendant a resident who had been sued for his participation in an operation alleged to have been botched. The supervising surgeon was also sued, and was retained as a defendant. The court ruled that because the resident did not exercise “independent medical judgment,” he could not be liable. The standard for liability of a supervisee was enunciated as follows: “A resident who assists a doctor during a medical procedure and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the (supervising) doctor’s directions did not so greatly deviate from normal practice…” I am often asked about the relative liability of supervising psychotherapists and their supervisees. This case clearly states the standard: the supervisor and not the supervisee is primarily liable unless directions given by the supervisor are so outside the accepted standards of care that even the supervisee should know that.
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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