HEALTH LAW SUPPLEMENT Winter 2005

Proposed requirements promulgated for grandfathering into the new mental health professions:
During calendar year 2005 psychotherapists in New York State who have been practicing psychotherapy but are unlicensed will be required to apply for licensure in one of the four new mental health professions; Mental Health Counseling, Marriage and Family Therapy, Creative Arts Therapy and Psychoanalysis. After January 1, 2006, the unlicensed practice of psychotherapy will be prohibited and prosecuted in New York State. During 2005, special relaxed requirements for admission into the new professions will be applied to applicants who have been practicing without a license (initially using looser criteria for formerly practicing applicants is the essence of “grandfathering,” done for equitable as well as political purposes). Regulators have proposed that to be grandfathered into the new professions, applicants must have a bachelors degree related to the new profession, and have practiced it full-time for seven of the past twelve years, see www.op.nysed.gov/mhp.htm. There is a comment period on the proposed new regulations until December 10th, so they’re still subject to change. Non-practicing applicants to the new professions, i.e., those ineligible for grandfathering, will be required to have masters degrees and supervised experience.

Even “harmless” insurance fraud can result in license revocation:
A physician lost her medical license for filing a fraudulent medical report with a patient’s insurer. She had previously pleaded guilty to the crime of insurance fraud based on the same incident. She appealed the revocation of her medical license on the grounds that she didn’t benefit financially from the false report, and that it didn’t harm her patient. (It’s unclear what type of medical report was falsified.) The court said that the penalty was not disproportionate to the wrongdoing and upheld the license revocation. Zharov v. NYS Dept. of Health, 772 NYS2d 111 (3rd Dept., 2004)

Discussion: The criminal prosecution and revocation in this case are indeed draconian. Often criminal prosecution is avoided and professional penalties are less than this physician received. It appears that the initial hearing panel and reviewing court were most impressed with the physician’s refusal to acknowledge that the fraud was intentional (which it apparently clearly was) and to “apologize.” The case is a stark reminder though that there is no justifiable reason for falsifying reports or claims to insurers and that any falsification will be taken seriously by the authorities if discovered.

Who is a minor and when and when can a minor consent to mental health care without a parent? The age of majority for the purpose of consenting to any health care is 18 in New York State. Certain classes of persons under 18 are also considered competent to consent to any health care, including:
■parents of a child for themselves and the child,
■married persons for themselves and on behalf of their children,
■pregnant girls for prenatal care and counseling, and
■emancipated minors.
For parents, married persons and pregnant girls, practitioners are specifically allowed by law to rely solely on the person’s statements and need not seek other verification of his or her status. A pregnant minor seeking counseling for psychological issues related to her pregnancy may be characterized as seeking “prenatal counseling.” An emancipated minor is defined as one who no longer lives with his or her parents and no longer relies on them for financial support. An expanded definition of emancipation was provided by one New York court:
Children are emancipated if they become economically independent of their parents through employment, entry into military service, or marriage, and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision. Alice C. v. Bernard G.C.,602 NYS2d 623, 628 (2 Dept. 1993)
Sometimes, minors who do not fall into one of the above categories will independently seek mental health care and not wish their parents to know about or be contacted to consent to the treatment. New York State has a special law governing such situations, but it governs treatment in State-licensed facilities only. Section 33.21(c) of New York’s Mental Hygiene Law states that clinicians at a State operated or licensed facility may provide minors with mental health treatment without parental consent if the following three conditions are met:
One, the minor is knowingly and voluntarily seeking treatment; Two, the therapy is clinically indicated and necessary to the minor’s well-being; and Three, (a) no parent is reasonably available, that is, cannot be contacted despite the clinicians diligent efforts, (b) obtaining a parent’s consent would have a detrimental effect on the course of treatment; or (c) a parent has refused consent but a physician has determined that treatment is necessary and in the best interests of the minor.
The law further requires that the clinician fully document the reasons for his or her determinations and have the minor sign a written statement indicating that the conditions are met. The term “knowingly and voluntarily” in the statute refers to the minor’s capacity to consent. This is to be assessed by the clinician and is defined as “the minor’s ability to understand and appreciate the nature and consequences of the proposed treatment, including the benefits and risks of, and alternatives to, such proposed treatment, and to reach an informed decision.”
Note also that the law treats differently those situations where the parent doesn’t know of the child’s desire for treatment and, on the other hand, where a parent knows of the child’s desire for treatment and has actively refused to consent to it. In the latter instance, where the parent has actively refused, the clinician must consult with a physician and obtain from the physician an opinion that treatment is necessary; in the latter instance also, as clinically appropriate, the therapist may inform the parent of treatment having commenced.
Private therapists wishing to be cautious should probably refuse to treat minors without parental consent and instead refer such youngsters to a State-licensed clinic where such treatment is expressly allowed. (N.B. “Treatment” does not include an initial evaluation which is permitted under any circumstances.) Private practitioners who are willing to accept the risk of a lawsuit or licensing board complaint alleging that treatment was rendered without appropriate consent should follow strictly the above guidelines and might then have a better chance of justifying their actions. Private practitioners willing to accept minor patients without requiring parental consent should also be aware that services may, by necessity, be pro bono. Where appropriate, practitioners who assess a youngster as in need of treatment to which a parent refuses to consent, may inform the parent of mandatory reporting of child neglect whose definition includes the failure to provide necessary mental health care.

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