HEALTH LAW SUPPLEMENT Summer 2017

WE ARE MOVING! Effective July 17, 2017 our new larger offices will be in lovely downtown Garden City at 1122 Franklin Avenue, Suite 402. It’s about a mile away from our current offices. We will overlook the Garden City Golf Club and have unlimited parking. Our telephone and fax numbers and other contact information will remain unchanged.

Ethical and legal issues in collection. An article in the New York Times of April 19, 2017 caused some consternation among clients. It detailed a disciplinary complaint against a psychologist in New Jersey based in part on his taking collection action against former patients in which patients’ names, diagnoses, and treatments were disclosed to courts. As a defense, the psychologist countered that while he disclosed that information to his attorneys in order for them to pursue payment, he did not himself make any unauthorized disclosures and relied on his attorneys not to take any unlawful action.
Regarding the issue of therapists taking collection action, in compliance with ethics codes and federal and state regulations, healthcare professionals are permitted to take legal action against patients for non-payment.* Before doing so however, they should notify the patient in delivery-confirmed correspondence that a disclosure of otherwise confidential information will be required if payment is not made and collection action is consequently made necessary. The information that is to be disclosed in order to seek collection should be described to the patient in the correspondence, and such information should be limited to the minimum necessary to obtain payment. If the professional is HIPAA compliant, then he or she should sign a Business Associate Agreement with the collection agent. (It is better, but in my opinion, not essential, that the professional also state the above collection policy in any informed consent documentation given to the patient at the outset of treatment.)
Regarding the psychologist’s defense: Alas! There is a “reasonable reliance doctrine” to the effect that a person is excused for committing an offense if they reasonably relied on a statement of the law, later determined to be mistaken, that was obtained from a public officer or public body whose responsibility includes interpretation of the law.
But reliance on bad advice provided by a private attorney is not a viable defense. It does not constitute an exception to the general rule that a mistake of law is no excuse. The reason for this is that if an accused could be excused from penalty because their action was taken upon the advice of counsel, then such advice effectively becomes superior to the law. In my experience, however, some tribunals, including licensing boards, do reduce penalties based on respondents having acted in good faith on the erroneous advice of their lawyers.
* From a risk management perspective, it is inadvisable to allow debts to accrue and sometimes to take any or certain types of collection action.
New NYS participating provider directory. The New York State Department of Health has initiated a new website, the NYS Provider & Health Plan Look-up, that purports to give information to consumers as to the health insurance plans in which licensed healthcare professionals participate, https://pndslookup.health.ny.gov/. Many practitioners have found themselves listed as participating providers on plans when in fact the they are not. Clients are advised to check and correct their listings, by means of the “Contact” function at the website, in order to avoid problematic referrals based on any incorrect information.
Fee-splitting prohibition may be relaxed in New York State. NYS has had some of the strictest laws and policies against fee-splitting, which among other prohibitions forbid licensed healthcare practitioners from paying their billing or management companies on a percentage basis based on patient fees. The State Senate has voted to allow fee-splitting provided that the health care professionals receive third-party payments in their own name and do not receive referrals from the business entity who is paid on a percentage basis, S 2247. The Assembly has not yet voted on the bill, A193. The bills preserve the essential function of the prohibition to prevent the corporate practice of healthcare and referral fees (kickbacks).
New York State Department of Labor says employees must be allowed to discuss their wages with one another. In regulations published on February 1, 2017, the NYS DOL said that NYS Labor Law Section 194 regarding pay equality prohibits employers from trying to prevent employees from discussing their wages among themselves. The law is part of a trend to eliminate wage disparities due to discrimination, especially on the basis of gender, by enhancing transparency. It is consistent with Section 8 of the federal National Labor Relations Act which requires employers to allow employees to discuss wages among themselves for the purposes of labor organizing and collective bargaining.
Sometimes clients use employment contracts that attempt to bind employees to confidentiality regarding the terms of the contracts, but under the NYS and NLRA regulations, confidentiality provisions of any employment contract would be void and unenforceable insofar as discussion of employee compensation with other employees is concerned.
The “Goldwater Rule” remains intact. On March 16, 2017, the American Psychiatric Association reaffirmed its support for the Goldwater Rule that psychiatrists should not give professional opinions about the mental status of persons whom they have not personally evaluated. The rule is followed by all other mental health associations as well. It was first enunciated in 1964 following the publication of mostly negative commentary by psychiatrists on the mental status of then presidential candidate Barry Goldwater. Several clients interested in publishing their views of current political leaders have asked about consequences of violating the Rule. In my opinion, both defamation actions and ethics complaints are possible.

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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