HEALTH LAW SUPPLEMENT Summer 2014

New CMS 1500 now required. As of April 1, 2014, CMS is requiring the use of the new CMS 1500 claim form (02/12) for Medicare claims and may reject claims sent using older forms. The new form supports the use of ICD 10 diagnoses, which will be required as of October 1, 2015 (not October 1, 2014; it was postponed a year by recent legislation). The new form also expands the number of possible diagnoses from four to ten.

HIPAA Guidance Document on Mental Health Information and the Privacy Rule. The US Department of Health and Human Services recently issued a new Guidance Document with FAQ’s regarding the privacy of healthcare information in mental healthcare, for example regarding communication with the families of patients, see www.hhs.gov/ocr/privacy/hipaa/understanding/special/mhgiudance.html.

Mandatory Continuing Education for Social Worker and Mental Health Practitioners comes to NYS. Chapters 443 and 448 respectively of Laws of 2013 require 36 hours of continuing education per triennial registration for social workers (LMSW’s and LCSW’s) and for Mental Health Practitioners (LMHC’s, LMFT’s, LP’s, and LCAT’s). The requirement for social workers becomes effective on January 1, 2015 and for mental health practitioners on January 1, 2017. There remains no mandatory continuing education for psychologists.

Forensic Transparency Bill introduced in New York Assembly. Bill A8342 would require “uniform access to court ordered forensic mental health evaluation reports and underlying data by litigants, their counsel and attorneys for the child.” Underlying data includes all notes, audio and video tapes, test data and materials, and any other material provided to or relied upon by the forensic evaluation. Many, but not all, judges currently restrict access to forensic evaluations to protect the privacy of children and informants and to decrease the potential for more litigation. As the name of the bill indicates, however, it would provide greater transparency to expert testimony in child custody litigation.

Clinical Social Workers may soon be Workers Compensation providers The New York State Assembly and Senate have passed bills that permit clinical social workers to independently treat workers who are insured by workers compensation insurance (A5299, S2360). All that remains is for the governor to sign the law.

Asking professional license applicants about their mental health may violate the ADA. In a letter dated February 5, 2014, the civil rights division of the US Department of Justice wrote that some of the questions asked of bar (attorney) applicants on the standard National Conference of Bar Examiners questionnaire (used by many but not all states) were unduly broad and violate the Americans with Disabilities Act. The DOJ stated that professional licensure systems cannot make discriminatory inquiries about mental health diagnoses and treatment, cannot burden applicants with supplemental investigations based on their mental health status or treatment, and cannot implement intrusive conditions on licensure that are based on mental health diagnoses or treatment. Licensure systems, such as New York State’s, that limit their queries to whether the applicant has a current mental health condition that impairs their ability to practice the profession seem to comply with the DOJ’s guidance and do not seem to violate the ADA. This letter from the DOJ might be useful as information for mental health professionals to reassure patients whose future plans include professional licensure that treatment for a mental health condition need not present a barrier.

New York law regarding consensual sex between teachers and students. We are sometimes asked by clients whether sex between students and their teachers is illegal in and of itself. All states prohibit consensual sex between adults and minors below a certain age. In New York State the age of consent for sexual relations is 17; sex with a person below that age cannot be considered consensual and an adult perpetrator can be criminally prosecuted for statutory rape. That is, however, the only law that applies to consensual teacher-student sex in New York. If a teacher has consensual sexual relations with a student 17 or older in New York State, the teacher will almost certainly be dismissed, but will not be criminally prosecuted.
In contrast, Connecticut criminal law defines sexual assault as including sexual intercourse between a school employee and a student under 18 enrolled in a school in which the employee works (CGS § 53a-71). Otherwise the age of consent for sexual relations in Connecticut is 16.

Unprotected sex while knowingly HIV positive is reckless endangerment in second, not first degree. So ruled a court in People v Williams, 111 AD3rd 1435 (4th Dept 2013). Under New York Penal Law § 120.25, Reckless Endangerment in the First Degree, a felony, requires that the person, “under circumstances evincing a depraved indifference to human life … engages in conduct which creates a grave risk of death to another person.” The court ruled that the victim, who was indeed infected by the perpetrator, was not at “grave risk of death” because the ability to treat HIV has increased dramatically over the past 15 years, and being HIV positive is no longer considered a death sentence. Second degree Reckless Endangerment, a misdemeanor, requires only the creation of a “substantial risk of serious physical injury to another person.”

Skype and HIPAA compliance. We’re frequently asked if the use of Skype for teletherapy is HIPAA compliant. We’re also frequently asked whether the use of Skype is prohibited for HIPAA compliant practices. The answers are “no” to both questions, in my opinion. Skype is not HIPAA compliant, that is, it does not use the HIPAA encryption standard, does not provide a protocol for trail audits or breach notification and does not offer to sign Business Associate Agreements (BAA). But Skype does provide strong encryption, stronger than that used by telephone companies, and Skype officials themselves are of the stated opinion that Skype, like telephone companies, is merely a conduit and need not be HIPAA compliant. (Apparently, Skype can and does use its encryption key to listen in on calls, i.e., for law enforcement purposes, and according to some, that makes it a Business Associate and makes a BAA required.) Reportedly, CMS, the federal agency that interprets HIPAA regulations, when directly asked, declined to opine about whether Skype is HIPAA compliant. And HIPAA regulations emphasize the flexibility and scalability of security measures. So, I do not believe it can be definitively stated that use of Skype for teletherapy is prohibited by HIPAA compliant practices.
There are video-conferencing services that are HIPAA compliant, e.g., Vsee, Secure Telehealth, eTherapi, that is who use government-standardized encryption and will sign Business Associate Agreements. If a practice regularly uses teleconferencing for teletherapy, then we suggest they use one of the HIPAA compliant video-conferencing services.
Whatever video-conferencing is used, written informed consent in which security measures and their limits are discussed is recommended.
Also keep in mind that this issue is moot for non-HIPAA compliant practices, i.e., those which don’t bill electronically. The use of video-conferencing for teletherapy does not itself necessitate HIPAA compliance.

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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