HEALTH LAW SUPPLEMENT Winter 2004

NEW PRACTICE LAW FOR PSYCHOLOGISTS. Recall from our last issue that under the new law that became effective September 2003, all employees of psychologists who are delegated clinical responsibilities must themselves be licensed healthcare professionals, except for student interns. Several clients have inquired about the boundaries of “clinical” versus clerical duties. For now, it appears that the State Education Department is taking an absolute position. On behalf of a client we sought an opinion from the SED and were informed that even the administration and scoring of objective psychological tests are restricted to licensed professionals. This opinion runs counter to that of practice organizations and other states’ licensing regulations. My guess is that this interpretation may change when formal regulations are promulgated.

NEW PRACTICE LAW FOR MASTERS LEVEL THERAPISTS. Several clients have inquired as to whether the unlicenced practice of psychotherapy is now illegal in New York. The answer is “Not yet.” Despite the fact that they may no longer be employed by licensed professionals, unlicenced persons with a masters degree may continue to practice psychotherapy in their own independent practices. This will continue until January 2005, at which point they must seek licensure in one of the four new professions (mental health counseling, creative arts therapy, psychoanalysis or marriage and family therapy). There will be grandparenting provisions. Practice after January 2006 without a license will be illegal. Questions about the new professions may be answered at the website of the new state board that will regulate them, the Board for Mental Health Practitioners, www.op.nysed.gov/mhpqies-ans.htm.

HIPAA AGAIN. No, not the Privacy Rule this time, but instead technical compliance with the Electronic Transactions and Code Sets. Practitioners who bill electronically must ensure that their software or that of the billing company they use, is capable of sending and receiving electronic submissions in the standard HIPAA format. Compliance was required as of October 16, 2003.

PRACTITIONERS WHOSE CONTRACTS ARE TERMINATED HAVE A RIGHT TO SUE HMO’S. Empire Blue Cross terminated Dr. Foong’s contract with the HMO due to their concerns about supposed over-utilization. Dr. Foong engaged in the internal review process provided by Empire, but the in-house panel upheld his termination. He then sued Empire. Empire argued that New York’s governing law (PHL§ 4406-d), which is somewhat unclear, does not give practitioners the right to sue HMO’s but rather the law requires only that termination not be arbitrary, and an in-house determination suffices to make that determination. The court disagreed, and said the law gave Dr. Foong the right to sue to have a court decide if the HMO’s decision was arbitrary. Foong v. Empire Blue Cross, App. Div, 1st Dept., Slip Op. 14567.

EVOLVING STANDARD OF CARE FOR SUICIDAL STUDENTS AT COLLEGES. Several recent high-profile cases in this area have questioned what the responsibility of a college is when a student (usually not a minor) announces an intent (to other students, administrators or educators) to kill him or herself. It’s now clear that in such circumstances, the college must require professional assessment and consequent protective measures if warranted. A recently settled case against Ferrum College in Virginia suggests that obtaining a promise from a student that his intention had changed is inadequate; rather, the college should have required a mental health assessment and maybe even notified the student’s parents. It appears that colleges will be expected to assume an in loco parentis role in this situation even though they ordinarily don’t do so and their students are not minors.

Also complicated is the situation when the college student indicates his or her suicidal intent to a college counselor who is bound by confidentiality. Must the counselor notify school administrators (perhaps in addition to others) so that the college can fulfill its duty to protect? Perhaps. When we consult with university counseling departments, we generally err on the side of disclosure because a complaint by a student of breach of confidentiality is preferable to possible death or injury (and resulting lawsuit). One means of handling these situations is to have students agree in advance to permit certain disclosures in the event of imminent danger to self or others. Perhaps also adequate is a statement of policy to that effect as part of an informed consent procedure.

DO YOU HAVE A HEALTH CARE PROXY? You should. How else will your wishes regarding healthcare and end-of-life decisions be known and carried out? On admission to hospital, you may be asked to complete one, but that’s not always possible. That, in fact, is the point. New York State makes it as easy as possible; there is a website with the form and directions for its completion, www.oag.state.ny.us/health/proxy_form.pdf. An attorney is not necessary, but if you wish, an attorney can assist you.

LAW FIRM NEWS. Bruce was recently awarded with appointment to the Bar Register of Preeminent Attorneys®. The Register includes only those select attorneys who have earned the highest rating in the Martindale-Hubbell Law Directory and have been designated by their colleagues as preeminent in their field. Less than 10% of attorneys are appointed. See www.martindale.com for more information about attorney ratings and the Register.

WELCOME TO NEW MEMBERS OF THE NCPA LEGAL PLAN!

PLEASE KEEP IN MIND THAT INFORMATION IN THE NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING YOUR CIRCUMSTANCES.

𝄞 HAPPY THANKSGIVING, CHANUKAH, CHRISTMAS AND NEW YEAR TO ALL! 𝄞

WE WISH YOU PEACE AND PROSPERITY AND THANK
YOU FOR YOUR TRUST AND BUSINESS THIS PAST YEAR!

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