HEALTH LAW SUPPLEMENT Summer 2013

Agency exemption continues. Governor Cuomo’s 2013 budget extends to 2016 the former July 1, 2013 expiration date for the exemption for State licensed programs (DOH, OMH, OASAS, OPWDD) that allows them to hire unlicensed mental health clinicians to perform services that would require a license to perform in the private sector. The State-licensed agencies argued that a requirement that they hire only licensed professionals would increase their costs significantly. Professional associations argued that patients at State-licensed agencies should be granted the same protection – services rendered only by licensed professionals – that patients receiving care in the private sector are granted. The exemption is still time-limited and not the permanent one that the agencies lobbied for, and in that sense, represents a victory for the professional associations.

New HIPAA rules. By September 23, 2013, covered entities must be in compliance with the new HIPAA Privacy, Security, Enforcement and Breach Notification Rules (aka the Omnibus Rule) which were finalized on January 25, 2013. There are quite a number of new provisions, but many of them had already been proposed in the interim HITECH rules of 2009 and updates of 2010. The current edition of our firm’s HIPAA Manual anticipated many of the changes, but will be fully updated in the Fall. For now, we are recommending that covered entities add to their Notice of Privacy Practices the following section:
Omnibus Final Rule
Final modifications to the HIPAA Privacy, Security, and Enforcement Rules mandated by the Health Information technology for Economic and Clinical Health (HITECH) Act, and recent changes to New York State law, are as follows:
We are required by law to report to the authorities patients who are at imminent risk of harming themselves or others for the purpose of those authorities checking to see whether such patients are owners of firearms, and if they are, or apply to be, then limiting and possibly removing their ability to possess them.
You have the right to be notified of a data breach.
You have the right to ask for a copy of your electronic medical record in an electronic form.
You have the right to opt out of fundraising communications from us, and we cannot sell your health information without your permission.
Certain uses of your medical data, such as use of patient information in marketing, require prior disclosure and your authorization. Uses and disclosures not described in this Notice will be made only with your authorization.
If you pay in cash in full (out of pocket) for your treatment, you can instruct us not to share information about your treatment with your health plan.
More on HIPAA enforcement. In it first prosecution and settlement of a breach of unprotected electronic protected health information (ePHI), a fine of $50,000 was imposed on a hospice for that infraction by the US Department of Health and Human Services (HHS). The hospice, as required by the breach notification provisions of the Omnibus Rule, notified HHS that a laptop computer containing ePHI was stolen. The hospice had not conducted a risk analysis to safeguard ePHI and the ePHI was apparently neither password-protected nor encrypted. HHS recommends encryption for ePHI maintained on computers. See www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/honi-agreement.pdf (Thanks to Dr. David Phillips for referring me to this case.)
Medicare Physician Quality Reporting System ( PQRS). This voluntary reporting system applies to PhD’s and LCSW’s, not just MD’s. If you fail to participate in PQRS in 2013 (on at least half your cases, so you must start by July 1, 2013 at the latest) you will be penalized 1.5% of your 2015 Medicare billings. There is an incentive as well: a bonus payment of 0.5% of all Medicare charges for the year. There are about a dozen measures available to non-medical mental health care practitioners. More information about how to use the PQRS is available at the websites of CMS, the American Psychological Association, NASW and on youtube.
Federal Parity Law cases, 2013. The New York State Psychiatric Association has brought suit against UnitedHealth Group, including United Behavioral Health, alleging violations of the federal Mental Health Parity and Addiction Equity Act. Allegations include that the insurer allows only weekly psychotherapy sessions for seriously mentally ill patients, and that the insurer has made authorizations for initial and continuing care difficult to obtain. In a similar case in Vermont brought by a patient (C.M.) against insurer Fletcher Allen Health Care Inc, the patient alleged a lack of parity with physical healthcare because for mental healthcare the insurer required preapproval, concurrent treatment reviews and automatic reviews triggered by a fixed number of visits for psychotherapy. These cases are likely the first of many more to come.
Treatment records destroyed. With another hurricane season upon us, procedures for dealing with records that are destroyed should unfortunately be reviewed. First, salvage any records that are savable. If you hire a salvage company and are HIPAA compliant, have them sign a Business Associate Agreement. Reconstruct destroyed records to the extent possible, dating any reconstruction contemporaneously. Write treatment summaries of prior treatment for which records cannot be saved. If you’ve provided copies of destroyed records to someone in the past, ask them to send you copies. For those who might request copies of the destroyed records, record the date of the loss, the exact extent of the loss, salvage and reconstruction efforts and their outcome, and reports made to insurers that support the claim of destruction.
Bruce is a “Superlawyer” again. Bruce is pleased to announce that he’s been named a New York Metro Area Super Lawyer for 2013 in the category of Health Care Law. Each year, only 5% of lawyers receive this honor from Thomson Reuters, the world’s leading source of information for businesses and professionals. Super Lawyers can be found online at superlawyers.com and the listing will also be published in the October 6, 2013 edition of the New York Times Magazine. This is the second time Bruce has been named to the list.
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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