HEALTH LAW SUPPLEMENT Spring 2024

The “R” credential for LCSW’s, now obsolete, is eliminated in New York State, and the LCAT is further sidelined. The purpose of the “R” credential under New York State’s original “Freedom of Choice” law, Insurance Law Section 3221 was to require insurers to reimburse for mental health services rendered by professionals other than psychiatrists while at the same time addressing stated concerns by insurers that such services should only be reimbursable if provided by trained qualified professionals. At the time of its passage, many insurers limited reimbursement for mental health services to those provided by an MD. The original Freedom of Choice law required insurers to also reimburse for services rendered by psychologists and by licensed clinical social workers, but by LCSW’s only if they had attained the “R” credential by obtaining three additional years of post-licensure supervised experience as psychotherapists. Since its passage however, mental health parity laws have been passed and insurers have usually and voluntarily reimbursed for mental health services not just of MD’s, PhD’s and LCSW/R’s, but also for services of other State licensed mental health practitioners i.e., including LMHC’s, LMFT’s, Lpsa’s, and LCAT’s. (Indeed, insurers lobbied for the licensure of those additional professions in the early 2000’s, likely in order to increase the supply of psychotherapists and thereby decrease their reimbursement rates.)
Chapter 818 of the Laws of 2022 revised the State Freedom of Choice law to require that insurers reimburse for mental health services of all licensed mental health professionals including LCSW’s without the “R” credential as well as the other masters level mental health practitioners, thus rendering the R credential unnecessary.
On January 1, 2023, the State Office of the Professions announced that LCSW’s who have already earned the “R” privilege would retain that designation, but because the privilege is no longer required under the Insurance Law, the OP will no longer receive or process applications for the privilege.
Most recently, the State took a step back, and under Assembly A01975 signed by Governor Hochul on March 3, 2023, the designation of LCAT’s as one of the mental health professions whose services must be reimbursed by insurers under the 2022 law was eliminated. Insurers may at their option pay for the services of LCAT’s but they are not required to do so in New York State. The elimination of LCAT’s as mandatorily reimbursable providers aligns with their ineligibility for the “diagnostic privilege” soon to be made available to LMHC’s, LMFT’s and Lpsa’s but not to LCAT’s (see our previous newsletter for more information about the diagnostic privilege). The stated reason in the bill for denying mandatory reimbursement by insurers for the services of LCAT’s was “cost concerns.”

Expiration date approaching for the NYS Licensed Social Worker Loan Forgiveness Program (LSWLF), and a similar program for NYC Health + Hospitals employees. The deadline of April 13, 2023 is approaching for social workers to apply to the NYS Higher Education Services Corporation (HESC) for student loan forgiveness. The maximum award under the program is $26,000. Awards are granted to social workers who work full time in an agency in a critical service area including home care, health, mental health, substance abuse, aging, HIV/AIDS and child welfare or communities with multilingual needs. Eligibility is contingent on employment in an agency located in a Health Professional Shortage Area (HPSA) as designated by the US Department of Health and Human Services. Parts, but not all, of almost all counties of the State are so designated.

Employees of NYC Health + Hospitals who are licensed as mental health professionals (not only social workers), are eligible for the Behavioral Health Loan Repayment Program (BH4NYC). The Progam was initiated by a $1 million anonymous donation, will grant up to $30,000 (non-MD’s) or $50,000 (MD’s) of debt relief in exchange for a three-year commitment to serve the public health system, and will continue for this year or until the entire donation has been distributed. The deadline for application is May 1, 2023.

A challenge to the social work licensure qualifying examinations. NYS Education Law requires applicants for the LMSW and the LCSW to pass an examination acceptable to the Education Department. NYSED has stated that applicants can meet these requirements by passing the appropriate examination offered by the Association of Social Work Boards (ASWB). A candidate for the LMSW must pass the ASWB Masters examination and a candidate for the LCSW must pass the ASWB Clinical examination. There has been considerable controversy surrounding the recent release by the ASWB of its findings that 91% of white persons and 57% of Black persons eventually pass the ASWB Clinical examination. Some believe those statistics are indicative of racial bias inherent in the ASWB examinations. The CEO of ASWB has responded with a statement that “this revelation does not in any way reflect on the ability of Black candidates to demonstrate competence;” rather, “it illuminates the historical burdens of racial trauma, marginalization, and social injustice to which Black candidates have been disproportionately subjected along their journey to licensure.” Some leaders in the social work profession are now advocating the elimination of standardized testing as an admission requirement for social work practice. Licensing exams have traditionally been used by states, including New York, to determine competence of applicants to practice clinically in independent practice.

NYS Medicaid Managed Care (MMC) plans now cover preventative mental health care for minors. Effective April 1, 2023, MMC plans will reimburse for CPT psychotherapy codes when such codes are accompanied only by the ICD-10 diagnostic code Z65.9, “Problem related to unspecified psychosocial circumstances,” and when the identified patient is a person under the age of 21. Heretofore the plans covered services only when a diagnosis of a mental or emotional disorder was present and primary, and not for “Z codes” unaccompanied by a diagnosed disorder. (Z codes could only be supplementary and secondary to the diagnosis of a disorder if reimbursement were to be sought.) The stated reason for this expansion of the definition of medical necessity to include not just treatment of diagnosed disorders but also “prevention-based” services is to “allow for reimbursement for services to be provided to the child and/or caregiver to prevent childhood behavioral health issues and/or illness.”

NYS fee for service (FFS) and MMC plans now pay for services provided by LMHC’s and LMFT’s. This change became effective March 1, 2023 for FFS plans and will be effective for MMC plans on April 1, 2023. Services rendered by LMHC’s and LMFT’s are also now reimbursable when rendered at School Based Health Centers (SBHC’s). The reimbursement rates range form $41 to $71. It’s unclear why licensed psychoanalysts (LPsa’s) are not included; they too will shortly be granted the opportunity to obtain the “diagnostic privilege.”

NYS Public Health Emergency to end, telehealth changes for prescribers . The date set for termination of the State PHE is May 11, 2023. As of that date, prescribers must comply with the federal Ryan Haight Act regarding the prescription of controlled substances and in-person visits. CMS has postponed until December 31, 2024 a decision as to whether to impose a requirement for Medicare insureds that an in-person visit occur within 6 months of an initial mental health telehealth service. For now, in-person visits remain unnecessary for telehealth psychotherapy treatment of Medicare insureds.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFIC ASPECTS OF YOUR SITUATION.

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