HEALTH LAW SUPPLEMENT Spring 2020

An advantage of a duty to warn statute: relative immunity for practitioners. In the last issue, I discussed the uncertainty that exists in New York State about whether mental health professionals are obligated to make unauthorized disclosures in order to protect patients from self-harm or prevent them from harming others. Most mental health professionals believe that they should breach confidentiality in such circumstances, and the ethics codes of all professions allow such breaches as the principle of beneficence prevails over that of respect for patients’ rights to privacy From a risk management perspective also, when healthcare attorneys advise practitioners to weigh the possibility of a wrongful death lawsuit against that of a complaint of breach of confidentiality, for most practitioners the former seems to present a greater magnitude of risk.
Often discussed are the reasons for and against laws mandating that mental health professionals breach confidentiality to preserve life. The reasons against them involve the uncertainty of prediction, discouraging at-risk patients from seeking treatment, and possible risks presented to clinicians who fail to report. From a more theoretical viewpoint, some oppose further State intrusions into private relationships.
What may be overlooked in such discussions is the risk to clinicians of not having a mandate. In three decades of defending mental health professionals in licensing board proceedings, I have represented a number who breached confidentiality in the belief that it was necessary for them to do so to preserve the life of a patient or third party, and who, as a result, had complaints of breach lodged against them. They were compelled to explain to their peers, in an adversarial proceeding where their judgment was scrutinized, why they did so. Under regulations governing professional conduct, the peer reviewers were tasked with ascertaining whether the practitioner’s actions were “negligent, that is, whether they were at variance with that of a reasonable practitioner in the same circumstances.
The current bill before the NYS legislature, S02372, that imposes a duty to warn on mental health practitioners, contains an immunity provision. As is usually the case, the mandate and immunity operate in tandem. Under the proposed statute, “The decision of a mental health practitioner to disclose or not to disclose the patient’s or client’s confidential treatment information to others in accordance with this section, when made reasonably and in good faith, shall not be the basis for any civil or criminal liability of such mental health practitioner, including liability pursuant to unprofessional conduct… S.2372, 9.42(d).
The principle underlying immunity is that when one is compelled to take action because public policy dictates it, one should be protected from legal consequences. In such statutory contexts, “reasonableness” means legitimate, and “good faith” means without malice or recklessness. The current negligence standard imposed by the licensing board in the absence of a reporting statute may seem similar to that imposed by the reporting statute – both contain a “reasonableness” requirement after all– but in practice they are different. Currently a practitioner must in essence prove that the course of action they took was the most reasonable. With the statutory immunity provision, they need only prove only that their actions were a reasonable course, i.e., there may have been other equally reasonable measures.
In addition, if there were a statutory duty to protect, then for public policy reasons, prosecutors would almost certainly be reluctant to allege misconduct because doing so might discourage mandatory reports and that would contradict the policy. That is the case now with the two current mandates in the State, to report child abuse and neglect and to report dangerousness to criminal justice authorities (but for the sole purpose of regulating ownership of firearms, i.e., the SAFE Act.) Both include immunity for mandated reporters, and generally, prosecutors at the licensing board almost always decline to question the rationale of a mandated reported who reports under the mandate.
The coronavirus pandemic. In emergency measures, the US Congress has for now expanded Medicare coverage to residents of all areas, not just residents of rural areas, and New York State has mandated that insurers waive co-pays for telehealth visits during the pandemic. With regard to the New York State waiver, keep in mind that insurance coverage for out-of-network telehealth services in New York remains optional at the discretion of commercial insurers and some of them decline any payment for telehealth services by out of network providers. Such denials may prove politically unfeasible during the pandemic however. New York State has also expanded the ability of Office of Mental Health operated and licensed facilities to offer Telemental Health Services, requiring only an attestation filed by providers at such facilities that they have a professional license or permit and are HIPAA compliant. Perhaps the most asked question by HIPAA compliant practitioners during the past week has been whether they may use FaceTime. In my opinion, FaceTime is probably OK as it appears to fall within the conduit exception of the Business Associate Rule: the US Department of Veterans Affairs (VA) think it does and allows its use. NB: To be eligible for reimbursement, telehealth services must be conducted using interactive audio and video components; telephone alone is not CPT codable and not reimbursable.
Defining interns who are exempt from labor laws. Clients sometimes ask whether they must observe minimum wage and other federal and State labor laws when they retain the services of what the New York State Education Department calls “exempt students.” (By that categorization, NYSED refers to the exemption from licensure, not from labor laws.) NYSED defines such students as those enrolled in licensure qualifying graduate programs who are required to obtain clinical experience as a requirement of their programs and who receive credit from their academic institutions for such experience. A recent federal case, Velarde v GW GJ Inc, 2019 UP All Lexis 3536 (2d Cir) determined that interns were not employees if certain criteria were met: the intern does not expect to be paid; the internship provides clinical training; the student receives academic credit; the internship accommodates the intern’s academic calendar; and the work of the intern complements rather than displaces that of paid employees.

Professionals, Arizona wants you! Arizona is the first and so far only State in the US to pass a law that automatically grants licensure to professionals licensed in other states who reside in Arizona for a year. There is no examination requirement, just a background check. Arizona HB 2569.

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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