HEALTH LAW SUPPLEMENT Summer 2007

Falsification of treatment records; the professional price. A New York appellate court recently found “proportionate” the severe penalty imposed by a hearing panel of the medical licensing board on a physician who was found to have falsified a treatment record. Evidence had established that the physician had written a note in a patient’s chart that a complete exam had taken place when in fact the exam given had been partial. The penalty was a one-year suspension and three years of probation and supervision. Sookhu v. Commissioner of Health of the State of NY, 820 NYS2d 146 (3rd Dept 2006).

Sometimes clients whom we’re defending in professional disciplinary proceedings ask what might happen to them if they get caught “fixing” a record. This hearing panel gave one answer to that question. Usually, I think, clients are asking what happens if they get caught adding to a patient record at a later date a notation of treatment or an evaluation that was actually conducted, and then presenting the record (falsely) as a contemporaneous one. That’s a bit different from the conduct of the physician in the case, but a licensing board might look at it just as harshly if it’s discovered; it’s falsification in both instances. (We always advise against altering records.)

In virtually all disciplinary cases in which I’ve been involved in which a practitioner has been found to have falsified a record, the penalty imposed has been harsher than it would have been, in my estimation, if the client had not tried to cover-up the error or omission. And in case another reason is needed not to change records, it’s a crime as well in New York State, NY Penal Law Article 175, albeit rarely prosecuted. (See also Penal Law §215.40 prohibiting spoilation of evidence.)

Alleged defamation by an expert-witness is immune from civil prosecution. One doctor (K) sued another doctor (C) for defamatory statements allegedly made by C about K. C made the statements in an independent medical examination report about K’s treatment of a patient. The IME report was prepared for a personal injury lawsuit. A New York trial court ruled that statements made by expert witnesses in legal proceedings, whether made in court or out-of-court (e.g., depositions, written reports) enjoy “absolute immunity” as long as they are material. If that protection were not provided, the court opined, expert witnesses would be averse to getting involved and courts need them to. Kaisman v. Carter, NY Cty Supreme Ct, #115999, NYLJ 09/29/2006.

The ruling is consistent with others that have been made in New York. It’s also consistent with another trend of doctors using legal or quasi-legal actions and forums to try to hold other doctors who serve as expert witnesses accountable to some standard of care. Some see such attempts as a means to scare off doctors who might be inclined to testify against their incompetent peers. Complaints about expert witnesses have been successful in some instances when the doctor who believes him or herself to have been defamed has complained about the allegedly defamatory witness to a professional association of which both are members. And in fact, one prominent federal judge opined that ethics committees of professional associations (and not courts) are exactly the right forum in which these disputes should be resolved. Austin v AANS, 253 F3rd 967 (7th Cir 2001).

Some confusion about reporting of elder abuse. Clients sometimes ask about their “duty” to report elder abuse to authorities, often believing that such reporting is mandatory as it is for child maltreatment. Reporting elder abuse is fully mandatory in some states, on a par with child maltreatment, i.e., practitioners must report suspected abuse to authorities and any duty to maintain confidentiality is overridden.

In New York State, however, reporting of elder (or adult) abuse is mandatory only when it occurs in certain settings. Professionals working in residential health care facilities (e.g. nursing homes) must report any suspected abuse or neglect of patients in such facilities. New York Public Health Law §2803-d. The only other mandatory reporting of maltreatment of an adult in New York State occurs due to the extension in our child maltreatment reporting law of “childhood” to 21 years of age if the “child” is in “residential care.” New York Social Services Law, Title 6.

New York law establishes an agency, “Adult Protective Services,” to investigate allegations of adult maltreatment and provide services and placement if necessary. New York Social Services Law, Article 9-B. But unlike with child maltreatment, private practitioners are not mandated to report to this agency maltreatment of adults seen in their private outpatient offices. In other words, unless they wish to risk complaints of breach of confidentiality, private and outpatient practitioners may not make such reports without the authorization of their maltreated (or suspected to be maltreated) adult patients.

Emailing to and from patients; security issues. In increasing numbers, clients are asking about whether and how they may send email to and receive email from patients. With this new means of communication, concerns arise regarding HIPAA compliance, confidentiality and security. If a practitioner is HIPAA compliant, then under the Security Rule, encryption of email containing patient health information is an “addressable” requirement, i.e., a good reason is needed not to implement the security measure. Both HIPAA compliant and non-HIPAA compliant practices should advise patients of the inherent lack of security of email transmissions, encrypted or not. Generally recommended are disclaimers that: (1) your email communications are (or are not) encrypted; (2) you cannot guarantee the security of email transmissions; (3) patients may wish to provide sensitive or private information by alternative and more secure means; (4) no evaluation or treatment is offered by internet communication (this disclaimer has more to do with standards of care and boundaries -and lack of third party payment – than security); (5) you do not respond to email communications except with general information or regarding administrative matters; and (6) there may be a delay in your reading email communications, so they should not be used for any urgent matters.

Our new revised HIPAA Manual is now available. Our new “HIPAA Compliance Manual for Small Mental Health Practices in New York State, Second Edition – 2007” authored by Bruce has all the instructions and forms needed for compliance with all of the HIPAA Rules i.e., the Privacy Rule and the newer Security and Transaction Rules. The 2003 edition of our Manual that was distributed to many clients addressed compliance only with the Privacy Rule. Compliance with the Privacy Rule is not the same as compliance with the Security Rule. The new Manual contains an essential HIPAA Security Standards Matrix in order for compliance with the Security Rule to be established and maintained. We have tried to make the Manual the most accurate, simple, and cost-effective compliance system possible and designed it especially for psychotherapy practices. We waited to publish a new edition until procedures to comply with all three of the Rules were established, as they now seem to be. The new Manual also contains as supplements basic record-keeping templates for psychotherapists (Intake and Treatment Planning form, Progress Note, Consultation Note and Termination Summary) and informed consent forms for individual, child, couple and family, and group therapy. Finally, a CD-ROM (pdf file) containing the entire Manual is included. Even practitioners who are not HIPAA compliant will find much of the information and many of the forms useful; HIPAA has established new standards of care for the privacy and security of patient health information that are relevant for all practitioners. An order form for the Manual, which costs $69.98 with tax and shipping, is included with this newsletter.

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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