HEALTH LAW SUPPLEMENT Summer 2011

Compliance with Subpoenas Duces Tecum: Many knowledgeable clients are aware that there is a relatively new New York State law, CPLR §3122(a) that requires that subpoenas for records (Subpoenas “duces tecum” in contrast to subpoenas ad testificatum “for testimony”) be accompanied by a patient authorization when the records demanded are healthcare records. Indeed that statute theoretically allows health practitioners to ignore subpeonas for records that are unaccompanied by such authorizations. Many lawyers however are still unaware of the statute or its applicability to mental health practitioners, and routinely seek contempt citations if their subpoenas are ignored.

The HIPAA compliant authorization form promulgated by the New York State Office of Court Administration, form OCA 960, to accompany subpoenas duces tecum is complicated, states that it excludes “psychotherapy notes,” (under HIPAA “psychotherapy notes” are process-type notes kept in addition to and separate from the clinical record; progress notes are not considered “psychotherapy notes”) and requires additional initialing by the patient (items 1 and 9(a) right) to be valid for the release of “mental health information.” In our experience, a significant portion of these forms are incorrectly completed by attorneys issuing subpoenas.

Rules governing the release of information obtained from collaterals in psychotherapy, that is, anyone other than the identified patient (IP’s) are complicated in New York State by an apparent difference of opinion between the Department of Education (governing licenses of healthcare professions) and the Department of Health (governing access to patient information). In many instances, it may be recommended, if not necessary, to obtain authorizations from collaterals as well as IP’s.

There is a split of authority as to whether a “So Ordered” subpoena duces tecum, i.e., one signed not only by an attorney but also countersigned by a judge, must be obeyed if it’s unaccompanied by an authorization (see Campos v Payne 76 NYS 2d 535, 2003 and In re C.D 6 Misc 3d 1034, 2005). Judges “So Order” subpoenas to expedite proceedings and expect prompt compliance regardless. Records ordered to be produced may be provided under seal, that is, under separate cover, directly to the judge and with a stated understanding of the applicable privacy protections.

Federal subpoenas duces tecum, those issued in US not State court actions, for healthcare information also require accompaniment by patient authorizations, but in any case, cannot be ignored. A motion to quash must be filed if authorization is lacking (Federal Rules of Civil Procedure, Rule 45).

Failure to comply with a subpoena duces tecum may result in service of an Order to Show Cause upon the non-compliant practitioner, necessitating attorney representation at a court appearance. Even a civil contempt citation with a small fine cannot be taken lightly by a licensed healthcare professional.

All of which is to say, if served with a subpoena, obtain legal assistance from an experienced healthcare attorney. Most malpractice carriers cover the cost, up to a limit, of attorney representation when an insured is served with a subpoena.

Waiving co-payments or deductibles: It’s common but risky for practitioners. Insurance companies consider it to be fraud (under NY Penal Law §176.05 and NY Insurance Law §403(c)), and call it NOOPEING (no out of pocket expense). If you’re out-of-network and don’t try to collect co-payments and deductibles, fee-for service insurers believe that you have falsely stated your fee. For example, suppose you submit a claim stating that your fee is $150/psychotherapy session knowing that the insurance company reimburses 80% ($120), and then you don’t try to collect the other 20% ($30) from the patient. The insurance company believes that in such a case, your true fee is $120, not $150, and that they should only reimburse 80% of $120 ($96).

If you’re in-network and your reimbursement is set by contract with a managed care company, it’s still ill-advised to waive co-payments as it is likely a breach of the contract. Managed care companies count on patients’ co-payments as a means of reducing utilization. Patients who know they are responsible for some out-of-pocket expense will presumably be less willing to seek treatment. So managed care companies typically have in their contracts with providers some clause to the effect that the company is not responsible for paying the provider for any services for which the patient is not also responsible for paying the provider. This provision is usually enforced after an audit that uncovers a waiver of co-payments and results in a demand from the insurance company for a refund of all fees paid to the provider.

Questions arise as to whether you can ever waive a co-payment or deductible, and what type of efforts must be made to collect the patient’s portion of the fee. Physicians have traditionally extended the “courtesy” to other physicians and their families of waiving co-payments and deductibles without any outcry from insurers. Psychotherapists should theoretically be allowed certain exceptions as well. One might be for professional courtesy, although most therapists don’t use that practice because of the extensiveness of most psychotherapeutic treatment. Another might be in cases where you have examined with the patient and documented an inability to pay. This however should be in highly exceptional cases, no more than a small percentage of your caseload, and if you have a provider agreement with a provision regarding non-payment as described in the paragraph above, then it would be wise to discuss the waiver with an insurance company representative before allowing it. If asked by an insurer for your usual and customary fee, you should be able to truthfully state it to be, and document that it is, the fee you almost always charge your patients. With managed care companies, you should be able to document that you almost always collect co-payments.

Insurers may ask you to document “good faith” efforts to collect patient co-payments and deductibles. What constitutes a good faith effort is largely determined by the amount of money at stake, and by your customary billing and collection practices. For example, your office policy may be to limit collection efforts to phone calls on amounts less than $300, to send letters on amounts greater than $300 but less than $500, and to refer other matters over $500 to a collection agency. If you follow such a policy and document its implementation in each case, that would seem to be evidence of good faith collection efforts.

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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