HEALTH LAW SUPPLEMENT Summer 2019

Clinical social workers and nurse practitioners in psychiatry to be workers compensation providers. As of this date and for the past 30 years, the only non-medical mental health professionals in New York State who could be approved as independent workers compensation providers were psychologists. As recently as the 2018 session of the State Assembly, a bill that was introduced to include clinical social workers as independent workers compensation providers was tabled due to strong opposition by both unions, representing employees, and the business community, representing employers. A lot changed in 4 months due to the change in party control of the legislature and to the governor’s stated commitment to reduce the inefficiency and cost of the system and increase access to mental health care. On April 12, 2019, the governor signed a major revision of the workers compensation law that expanded the types of providers permitted to treat injured workers independently and be compensated through the workers compensation system to include clinical social workers and nurse practitioners, as well as certain other non-medical professions. (New York State Bill A02005C.) The law goes into effect January 1, 2020. With the increase in fees payable by workers compensation insurers to providers of mental health care that went into effect April 1, 2019 (currently $132.75/CPT 90834 in NYC for LCSW’s and NP-P’s working for and supervised by MD’s), it seems likely that LCSW’s and NP’s in Psychiatry will apply in significant numbers to be approved by the Workers Compensation Board as qualified independent providers. Based on its history approving psychologists, one obstacle may be the reluctance of the Board to approve individual mental health professionals who lack expertise in treating injured workers and their disorders with which they typically suffer, e.g. post-traumatic stress.
Ruling against UBH regarding its restrictive guidelines for medical necessity for mental health care. On February 28, 2019, in David Witt vs. United Behavioral Health, Case No. 14-cv-02346-JCS, a class action lawsuit, the US District Court for Northern California, ruled that UBH/Optum, the largest mental health managed care organization in the country, illegally denied coverage for mental and substance use disorders based on flawed medical necessity criteria. The denials were deemed to violate the federal mental health parity act. Among the court’s findings were that: UBH was wrong to focus exclusively on patients’ current symptoms and should instead have allowed treatment of patients’ underlying mental and emotional conditions because mental and substance use disorders are chronic conditions; guidelines for effective treatment should not focus exclusively on resolution of symptoms, but should include services necessary to maintain therapeutic gains and prevent deterioration; allowable treatment duration must be based on the individual needs of patients, not group norms; UBH was wrong to require less intensive and less restrictive (read less expensive) treatments where those treatments could also be expected to be less effective; and the unique needs of children and adolescents must be taken into account in making level of care decisions. (The plaintiff Witt’s daughter was denied residential treatment for substance abuse.) The case is expected to have a wide-ranging and meaningful impact. Those of us who represent individual mental health providers in insurance audits are familiar with the above (mis)applied criteria for medical necessity used by insurers, but contesting them and trying to protect clients from clawback attempts is complicated by the insurers use of procedural pretexts for denial and by the inequality of legal and financial resources.
A local case and an exclusion of wilderness therapy may also have violated mental health parity. In Gallagher v Empire HealthChoice, 399 F Supp 3d 248, SDNY 2018, a plaintiff insured by Empire alleged that the categorical exclusion by the insurer of payment for wilderness therapy as mental health treatment violated the federal parity act. The judge agreed that it might. The judge stated that if Empire paid for skilled nursing and rehabilitation care for medical/surgical patients, then it could not have a blanket exclusion of wilderness therapy for mental health patients, because the two types of care are analogs, the one for physical care, the other for mental health care. The court essentially ruled that Empire had to base any denials on the needs of individual patients, not on an absolute exclusion of wilderness therapy.
Emailing patients as a non-covered entity using unencrypted email. Many of our small group and sole practitioners fall into the category of non-covered entities who need not be HIPAA compliant because they do not bill insurers electronically; rather they are what the Department of Health and Human Services call “country doctors” who exclusively bill patients with paper bills and as out of network providers. Even if not following HIPAA regulations however, because of the continued stigma of mental healthcare, psychotherapists must be especially mindful of privacy concerns when using unencrypted email, and should be aware that encryption has become, in my opinion, a necessary element of maintenance of confidentiality, a standard of care, even for non-covered entities if (1) email is used customarily and regularly to communicate with patients, even if just regarding scheduling, and/or (2) email is used to transmit substantive personal health information, e.g., sending bills with diagnoses to patient, asking prospective patients to complete and return questionnaires about their mental status, transmitting narrative summaries or records of treatment. In the above situations, if unencrypted email is nevertheless used, then (1) it should be at the request of the patient, and (2) the patient should be advised, and sign written acknowledgment of notice of the potential for unauthorized access and the risk to privacy to unencrypted email.
Medical marijuana for opioid replacement. The NYS Department of Health added opioid replacement as an additional medical condition for which medical marijuana might be prescribed in the State. The DOH stated as its reasons that the prescription of medical marijuana for pain might reduce prescriptions of opioids for that purpose and might also reduce patient deaths due to opioid overdoses. 10 NYCRR 1004.2, 12/26/2018.
A NY court refuses to enforce a restrictive covenant. In Long Island Minimally Invasive Surgery PC vs St Johns Hospital, 164 AD3d 575, 2d Dept 2018, a court refused to enforce a restrictive covenant of 2 years and 10 miles against a surgeon in the New York City metropolitan area (Rockville Centre). The court stated that the hospital’s covenant was unreasonable because it (1) was not required to protect a legitimate interest of the hospital, (2) imposed an undue hardship on the former employee, and (3) was injurious to the public. Employer-clients are routinely advised of the difficulty involved in enforcing restrictive covenants.
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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