HEALTH LAW SUPPLEMENT Summer 2022

Requirement of continuing education on boundaries for psychotherapists. The New York State Board of Regents will soon consider and likely approve a requirement that all psychologists, social workers and mental health practitioners (LMHC’s, LMFT’s, LCAT’s and LP’s) complete three hours of continuing education credits on issues related to maintaining appropriate boundaries with patients and clients. The Board believes that although, “professional education programs … include overviews of professional ethics that underlie those professions and discussions about transference and countertransference, licensees may be faced with real world challenges when engaged in practice that go beyond those covered by these educational requirements. Newly licensed and experienced professionals may blur the boundaries that separate the professional from the personal.” Examples given by the Board include clinicians leaving multiple inappropriate voicemail messages, sending “inappropriate text messages … causing patients to think that the licensee and patient were friends,” and leaving text messages for patients “which were not therapy related.”

It has indeed been my experience that psychotherapists are sometimes uncertain about maintaining boundaries with patients when using social media and messaging, especially given the expectations of some younger patients. I guess it is the hope of the Board that an educational approach may be ameliorative in such circumstances. On the other hand, it has been my experience as a defense attorney that it is not a lack of knowledge that causes most sexual boundary violations and other exploitative dual relationships.

May a psychotherapist have a sliding fee scale by which different patients pay different fees for the same service? This is a question commonly asked, and not one that lends itself to a simple answer, though I guess an answer would be, “Yes, but only if certain conditions are met.” New York State insurance regulators have opined with regard to an aspect of this issue, which is sometimes called the issue of “dual fee scheduling,” that practitioners may not “charge uninsured patients lower rates than … charge(d)… insured patients for the same services…” because “the charging of lower rates to non-insureds or to patients who pay by cash may suggest that the … usual and customary rate is not being accurately reported to the insurer,… which may be in violation of NY Penal Law 176.05” (Insurance Fraud). See NYS DFS Opinion, December 10, 2000.

But does that mean that a practitioner may not set different fees for different patients that are in part based on patients’ insurance coverage? In my opinion, therapists may set different fees in part based on insurance coverage. But the differential should be based not just on insurance coverage, but rather should be part of an objective scale that includes other criteria for calculating a fee for a given patient such as family size, earnings, debt and wealth, health, and other necessary expenses. Another way to ensure that your sliding fee scale would not be considered fraudulent would be if your basic fee, that is, the fee that “slides” up or down given patients’ particular circumstances is also the average fee that you charge all patients.

Notwithstanding the above, waiving or forgiving deductible or co-payments should be avoided, as doing so might well be considered fraudulent by out of network insurers. Whatever fee is stated on a bill given to a patient or on a claim submitted to an out of network insurer should be the fee that the practitioner uses his or her customary good faith efforts to collect in full. Use of a collection agency, or suing for unpaid fees is not required however, as long as your collection practices are consistent across all patients, those who pay on a sliding scale and those who pay the basic fee.

Federal telehealth flexibility extended. In the Federal omnibus spending bill signed in March, Congress extended Medicare telehealth reimbursement waivers related to the COVID-19 Public Health Emergency (PHE) to July 15, 2022. They may be extended even further if the PHE continues. The waivers include that telehealth services: may be delivered to patients wherever they are, including at their homes (previously they had to be at clinics); may be audio only (previously they had to be audio-visual); and need not include an in-person visit within 6 months of the beginning of treatment, and annual in-person visits thereafter. In addition, Congress is considering the Telehealth Extension and Evaluation Act that may make the above flexibilities permanent.

Progress in interstate practice. New York State has just introduced legislation to join PsyPact allowing participating psychologists to practice in all the states, currently 33, that have joined the Pact. Senate Bill 2394 Last year the Department of Defense issued a grant to the Council of State Governments (CSG) and the NASW to develop an interstate licensure compact for social workers. The CSG began drafting model legislation in April 2022. Nine states have signed the Interstate Counseling Compact (for licensed mental health counselors) into law, but so far New York has not indicated any interest in joining.

New York City postpones enforcement of its salary transparency law. Last year the City passed the law that was to have taken effect on May 15, 2022, but that date has been changed to November 1, 2022. On that date it will be required of all employers of four or more employees located in New York City that in advertising for both employees and contractors, they state the minimum and maximum compensation range, annually or hourly, for the position, and the range “must extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job…” The is no monetary penalty for a first violation as long as the employer corrects it within 30 days.

Changes in the new DSM-5-TR. Not much has changed in the revision, at least not much that affects diagnosis or getting paid for treatment Most changes are in terminology. One new diagnosis has been added, in the category of “Trauma and Stressor Related Disorders,” i.e., “Prolonged Grief Disorder, F43.8.” From commentary, it appears to be a controversial change as it is interpreted by some as further pathologizing grief. There are some new codes for self-destructive behaviors that do not meet criteria for an official diagnosis, but that may enhance the precision of, and possible likelihood of reimbursement for, official diagnoses, for example “Suicidal Behavior” as a behavior that accompanies a diagnosis of a depressive disorder, or “Non-Suicidal Self-Injury” as behavior, e.g., cutting, that accompanies a diagnosis of a personality disorder.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFIC ASPECTS OF YOUR SITUATION.

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