HEALTH LAW SUPPLEMENT Summer 2020

Will COVID be the cause of a paradigm shift toward delivery of mental health services by telehealth? The American Psychiatric Association in May found that 86% of psychiatrists responding to a survey were seeing 75% or more of their patients by telehealth means, presumably with similar efficacy of treatment as that for office visits. The survey also found that for telehealth visits, the rate of no-shows was less and the rate of patient satisfaction was higher than for office visits. Consequently, on June 1, the Association wrote to the Administrator of the Centers for Medicare and Medicaid Services (CMS) asking that the regulatory flexibility extended by CMS to telehealth during the pandemic be made permanent.
That flexibility has included: the removal of geographic and originating site limitations (not just in under-served and rural areas); allowing all mental health services to be rendered remotely (including group therapy); removing restrictions on frequency of telehealth services (currently some services may be rendered only once weekly); maintaining parity of payment for telehealth services with in-person services; allowing use of audio only care (not requiring services to include both audio and video components); and allowing supervision of trainees to be conducted remotely (currently such supervision must be “direct,” i.e., in person).
If CMS does make these changes permanent, then if precedent is a guide, Medicaid and commercial insurers will ultimately follow suit, even if with some delay.

Will COVID result in all commercial insurance companies being legally compelled to reimburse for telehealth? In 2014, New York State enacted legislation requiring that health insurers provide coverage for services provided by telehealth where the service would otherwise be covered as an in-network service if rendered face-to-face. However, the law did not apply to out of network benefits, or under ERISA (the Employee Retirement Income Security Act) to large multi-state employers, union plans and self-insured businesses.
Now before the US House of Representatives is HR 6644 which would temporarily require all group health plans and insurers – with no exceptions – to cover telehealth services if the service would otherwise be covered if rendered in-person. The legislation would expire when the COVID pandemic ends.
Notable about the legislation is that it is supported by the “Mental Health Liaison Group” which includes virutally all professional and consumer organizations representing mental health practitioners and consumers (letter to Rep. Kim Schrier from MHLG dated May 11, 2020). Because of bipartisan support, the bill is expected to pass. As with the changes in CMS policy during the pandemic (see above), once such changes are made, they are difficult politically to reverse because that deprives some of what they now view as their right.

Liability by professionals for COVID transmission at their offices
1. In general, for a practitioner to be found to have negligently allowed the transmission of an infectious disease such as COVID, a duty of care, already established by the practitioner-patient relationship, must be breached. For a mental health practitioner, breach ordinarily means violation of a directive of a State Department of Health or the federal Centers for Disease Control. For COVID, these might be: failure to “test” (testing may be by questioning rather than by physical testing) employees and patients for the virus; failure to screen employees, patients and any guests for symptoms; failure to enact reasonable safety protocols such as mandating the use of masks and requiring social distancing measures to protect patients; failure to adequately train staff in implementation of safety measures; and failure to enact disinfectant and social distancing guidelines for employees. Assurance of compliance with State guidelines is maintained by completing and affirming online the New York Forward Business Reopening Tool, found at https://www.businessexpress.ny.gov/app/nyforward. Not only should appropriate measures be taken and confirmed, but patients and staff should be notified of them. The best consent and notice to patients that I have reviewed is one published by the American Psychological Association: https://www.apaservices.org/practice/clinic/covid-19-informed-consent
After establishing a breach of duty, there is a need to demonstrate that the breach was the actual cause of the plaintiff’s harm, in other words, that the virus was transmitted at the premises of the practitioner. Such proof may be quite difficult to establish.
2. In April, New York State passed the “Emergency Disaster Treatment Protection Act,” (the “Act”) that provides immunity from liability to healthcare professionals for certain actions taken during the pandemic. Healthcare professionals covered by the Act include all mental health professionals and their contractors and employees. Under the Act, healthcare professionals are immune from any civil or criminal liability for harm alleged to have been sustained as a result of an act or omission in the course of providing “health care services,” if the healthcare services were being lawfully provided in accordance with State directives; the act or omission occurred while providing healthcare services; the treatment of the patient was affected by the professional’s actions taken as a result of the COVID outbreak; and the professional acted in good faith. Under the Act, “Health care services” include: any treatment for COVID, but more importantly for mental health practitioners who do not directly diagnose or treat COVID, “the care of any other individual who presents … to a healthcare professional during the period of the COVID-19 emergency declaration.” Immunity does not apply to gross negligence* or intentional or reckless misconduct. In my opinion, at least for the duration of the pandemic, the Act contains significant protection for practitioners against any allegations that their actions negligently caused the transmission of COVID to a patient. It also establishes a public policy of shielding practitioners who act in good faith that may influence legal decisions afterwards.
* Gross negligence is deliberate and reckless disregard for the safety of others. In contrast, “simple” negligence is the failure to use the level of care and caution that an ordinary person would use in similar circumstances, usually involving carelessness or inattentiveness that causes an injury.
3. Any claim by an individual that she or he became infected at a professional’s office may be covered for defense costs and indemnification under the professional’s business owner’s or general liability policies* that insure against “bodily injury” arising from an “occurrence.” An individual who becomes sick as a result of exposure to COVID suffers a covered “bodily injury.” Such policies also commonly require an “occurrence,” which is usually defined as being “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” From the standpoint of the insured, any viral transmission was the result of an “accident,” i.e., was unexpected and unintentional. To decline coverage, insurers may try to argue that there was no “occurrence” or “accident” as such if (1) viral spread is so significant that a substantial portion of the relevant population are carriers (i.e., contagion was expected) or (2) a claimant asserts that the virus was transmitted by an employee or independent contractor of the insured who showed visible symptoms of COVID or who is known to have contracted the virus (i.e., contagion was intentional).
* Business and general liability insurance are different from professional liability (or malpractice) insurance. The main difference between business and general liability insurance and professional liability insurance is in the types of risks they each cover. Business and general liability covers physical risks, such as bodily injuries and may also cover property damage. Professional liability covers errors and omissions made in the course of providing your professional services.

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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