HEALTH LAW SUPPLEMENT Summer 2015

The child abuse reporting mandate does not necessarily waive privilege in criminal proceedings. In a case before the New York Court of Appeals, New York’s highest court, the Court ruled that although physicians (in this case a psychiatrist) must by law report suspected child abuse by parents or legally responsible persons to child protective services, physicians cannot be compelled to testify in related criminal proceedings against the perpetrator of the abuse. In The People v David Rivera, 2015 NY Slip Op 03764, 05/05/2015, the adult defendant had disclosed to his psychiatrist that he had sexually abused an 11 year-old relative. The psychiatrist notified CPS as required by the child abuse reporting mandate. The defendant was subsequently criminally charged with sexual assault against a child. The trial court judge decided that the admission made by the defendant to his psychiatrist was admissible, even though the defendant objected that his statements to the psychiatrist were protected by the physician-patient privilege under NY CPLR 4504. The defendant was convicted and appealed.

The appeals court ruled that the trial court erred. “It is one thing to allow the introduction of statements or admissions in child protection proceedings whose aim is the protection of children, and quite another to allow the introduction of those same statements, through a defendant’s psychiatrist, at a criminal proceeding, where the People seek to punish the defendant and potentially deprive him of his liberty.” The New York State Psychiatric Association had filed an amicus brief in support of the defendant’s appeal.

The Court would almost surely have come to the same conclusion if the treating professional had been a psychologist, as the privilege statute for psychologists is even more protective of patient confidentiality than the physician-patient privilege. NY CPLR 4507. In my opinion, it is likely though not certain that the Court would have come to the same conclusion had the professional been a social worker. The social worker privilege does not apply to the contemplation of crimes or when the client is under 16 and the victim of a crime. Neither exception directly applies to this case – it was not contemplation of a crime that was disclosed, but the committing of one and the client was an adult perpetrator and not a child-victim; but these exceptions might weaken the perceived intent of the social worker privilege generally, although logic would suggest the same rationale for upholding the privilege for social worker-psychotherapists. NY CPLR 4508.

Interestingly, the Court of Appeals in a footnote once again declined to address the issue of whether New York should adopt the so-called “Tarasoff” doctrine, by which mental health professionals might be required to breach confidentiality to protect intended third party victims of violence by patients.

Social workers are not yet workers compensation providers. Governor Cuomo vetoed a bill that would have authorized clinical social workers to become providers under New York’s workers compensation program. His stated reason was that the program is currently being reviewed in its totality and piecemeal changes should not be made at this time. Bill No. A05299B, vetoed memo. 533.

The deadline for e-prescribing has been pushed forward to March 27, 2016. Governor Cuomo signed legislation that allows for a one-year delay in the e-prescribing requirement.

New York’s new “surprise medical bill” law. As of March 31, 2015, a new law took effect to protect consumers from “surprise” medical bills for out-of-network services. All providers in New York State are now required to (i) for non-emergency services, disclose verbally to patients their right to know what they will be billed for any proposed procedure and the total cost of the procedure, (ii) inform patients of their network and hospital affiliations in writing or on their websites, (iii) indicate verbally when patients make appointments whether they participate in the patient’s network, and (iv) advise patients of other professionals who might be involved in the patient’s care, and of how to learn whether and to what extent their networks will cover the cost of the other professionals’ care. For patients who receive out-of-network care, practitioners must include claim forms when sending out bills. Failure to follow the new requirements results in patients being responsible for paying only what they would have for in-network care. The new law has many other provisions that apply to emergency care, clinics, hospitals and health insurers. Part H of Chapter 60 of the Laws of New York (2014).

The Nurse Practitioner Modernization Act has become law (S.4611A). Effective January 1, this law permits nurse practitioners with more than 3600 hours of practice (about 2 years, full-time) to practice (i) without signed practice agreements with physicians and (ii) without practice protocols. The requirements of a signed practice agreement and mutually agreed upon practice protocols had previously been imposed on all nurse practitioners and are still imposed on NP’s with less than 3600 hours of practice. Experienced NP’s are still required to “maintain collaborative relationships”, that is, they should communicate with physicians as needed by phone or in writing to exchange information and to make referrals to provide comprehensive patient care. Effectively, however, experienced NP’s have become independent practitioners with full prescriptive authority in their practice areas.

This law is significant for psychologists because under New York’s very limited allowance for multi-disciplinary practice, psychologists and nurse practitioners in psychiatry (NPP’s) may together form professional limited liability companies (PLLC’s). This contrasts with psychologists and psychiatrists who may not form practices together, i.e., only other MD’s may practice with an MD in a PLLC. (And for unknown reasons, the law also prohibits social workers from forming multi-disciplinary PLLC’s.) Psychologists and nurse practitioners in psychiatry may form PLLC’s in order to provide the full array of mental health services – medical, diagnostic and therapeutic – to their patients. In the past our experience has been that the legal requirement that NPP’s have signed collaborative agreements with MD’s inhibited NPP’s from practicing with psychologists. Presumably, now more psychologists and NPP’s will find it mutually advantageous to form multi-disciplinary practices.

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.

Categories