HEALTH LAW SUPPLEMENT Summer 2009

Financial and legal issues in telephone psychotherapy. Private insurers generally do not reimburse for telephone psychotherapy. No CPT code for psychotherapy can be used for telephone therapy because it’s not a face-to-face service. Because it can be considered misleading, patients treated telephonically should not be billed for “individual psychotherapy,” nor should their services be coded as 90806 or any other CPT code. Rather, in billing use the description “telephone psychotherapy” without any accompanying CPT code. Some insurers will, however, allow use of such CPT coding for and reimbursement of episodic telephone sessions such as when an established patient is away on vacation or home ill. But as far as I know, none allow these for regularly planned or frequent telephone therapy. Exceptions may be granted; you, the patient, or both of you may make a case to insurers that one is warranted, but prior full disclosure to the insurers would be required.

There are standard of care issues as well. Can you provide psychotherapeutic treatment that meets customary standards for safety and efficacy by means of planned regular use of the telephone as a primary means of communication? Presumably, you will be lacking information that you might otherwise glean from face-to-face encounters with patients. Resolution of these questions require recourse to professional research and ethical and community standards. You might address them additionally in an informed consent document, in which you label as experimental the telephonic aspect of treatment, and if possible, offer patients alternative non-telephonic referrals if and when exigent circumstances arise.

Whether a healthcare practitioner is permitted to provide telephonic professional services to a client in a state where the practitioner is unlicensed is unresolved. Public policy of states and risk management policy of practitioners would seem to militate against it. States wish to have jurisdiction by means of licensure over healthcare practitioners who provide services to their residents. Although it has not occurred to my knowledge, there is the possibility that a practitioner might be accused of unlicensed practice by the state in which the client resides (and in which the practitioner is unlicensed); unlicensed practice is a crime. Additionally, there is the possibility that, should the practitioner be sued for malpractice, insurance coverage might be questioned by the practitioner’s malpractice carrier for services rendered out-of-state on the basis of the practitioner having engaged in unauthorized practice.

Having an out-of-state patient sign an agreement that for all purposes the site of delivery of all services shall be considered New York State and subject exclusively to the laws of this State might provide a technical solution to these issues, but is as yet untested also. Having initial and then some ongoing regular contact in New York State, i.e., an in-person intake and occasional face to face sessions, would bolster a position that New York is properly considered the situs of the services.

Out-of-state telephonic “coaching”presents significantly less exposure than telephone therapy
because coaching usually does not require a license, is not necessarily a professional activity, and has standards of care that are looser and vaguer.

A court affirms that treatment records belong to the clinician. With so much written lately about patients’ rights, HIPAA and the like, it’s easy enough to understand why some patients, and even some clinicians, might believe that treatment records belong to or can be controlled by patients. Some clients have called us in confusion after a patient has demanded that all of his or her treatment records be destroyed or has demanded possession of the original treatment records (and not a copy). Under HIPAA and New York State Public Health Law §§ 17 and 18, upon their written request, patients are indeed entitled to copies of their records in most cases (there are exceptions where denial of access may be appropriate, albeit with notice of a right to appeal). But the original records of treatment are the exclusive property of the practitioner. For many reasons, among them regulatory requirements (see Rules of the Board of Regents 29.2 (a)(3) mandating record maintenance and retention) and defense against all manner of allegations, clinicians ought not destroy, alter, or transfer possession of their original records. In Chervonskaya v Bentley, 867 NYS2d 107 (2 Dept. 2008), a patient who sued a physician and had mistakenly obtained original treatment records was compelled to return them to the physician because that is to whom they belonged..

Malpractice exculpatory agreements generally invalid in New York State. A client called recently and asked if she might require low fee or pro bono psychotherapy patients to sign an agreement not to sue her for malpractice. The “consideration” received by the patient in exchange for relinquishing this right, necessary for even the possibility of a valid contract to be considered, was the low or no fee. While the therapist’s proposal might seem reasonable and equitable from a certain perspective, if legally challenged it would likely be invalidated by a court as “void for public policy” reasons, that is, that public policy precludes its enforcement. That’s what happened to such an agreement promulgated by a low cost dental clinic in Ash v NYU University Dental Center 564 NYS2d 308 (1st Dept 1990). The two rationales for the court’s decision were that (1) allowing such agreements might foster a two-tier health care system where the less affluent got lesser care because their providers were less accountable; and (2) the agreement was based on abuse of a special relationship between healthcare practitioner and patient where the clinician had inherently more bargaining power, and where it was antithetical to the fiduciary nature of the relationship for the clinician to act in such a purely self-protective manner.

A different but similarly intended approach might be to require all patients, not just those paying lower fees, to mediate or arbitrate disputes with a practitioner, rather than sue. There is considerable interest currently in such arrangements and the law is less clear about their enforcement.

Medicaid reimbursement for clinical social worker services at FQHC’s. As of February 6, 2009, psychotherapy conducted by social workers at Federally Qualified Health Centers is billable to Medicaid. Prior to the change, neither “medical social services” nor psychotherapy were billable, although psychological evaluation was, see 10 NYCRR 86-4.9 (c). FQHC’s are non-profit medical clinics licensed by the State operating in under-served areas that accept Medicare and Medicaid (of approximately 1000 licensed facilities in the State, 58 are FQHC’s). The new regulation includes as social workers not only LCSW’s but also LMSW’s practicing under supervision. The State was compelled to make this change in order to conform to Federal law. The change is a victory for the poor more than for any profession, and it highlights that non-medical psychotherapy has become an integral part of general healthcare services.

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

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