HEALTH LAW SUPPLEMENT Winter 2007

New law limiting insurance company recovery demands. On August 18, 2006 Governor Pataki signed into law a bill (A11996/S8417) that imposes time limitations on recovery demands by insurance companies. The new law takes effect January 1, 2007 but is not retroactive. An unfortunate number of clients have been subjected to audits by insurance companies that result in demands for repayment of claims made up to six years previously; the six year “look-back” period was based on the “statute of limitations” on contract actions of that length. The new law imposes a two-year look-back period unless the insurer has a reasonable suspicion of fraud. This new law should be a great help to practitioners, theoretically cutting by two-thirds the amount of any recovery demands (such demands are usually based on missing or inadequate records). An unintended consequence of the change, however, may be an increase in fraud claims, though perhaps not because these must be based on “reasonable” suspicion, an ostensibly objective standard.

The new law has other provisions that benefit practitioners – it was passed largely through the lobbying efforts of the New York Medical Society. There is a new 30 day notice requirement before a health plan can offset for an amount they claim was previously overpaid by withholding a current payment due; a new 90 day limit on the health plans credentialing process for providers; and a requirement that plans accept the AMA’s CPT codes.

Social security numbers go private in New York State. A new New York State law prevents businesses from printing social security numbers on identifying documents such as membership cards, from requiring social security numbers as identifiers to access a website, and from transmitting social security numbers over any but a secure connection on the internet (A10076D/S6909C). This is a further attempt to combat the growing problem of identity theft.

In the past, patients’ insurance identification numbers were often their social security numbers. Be especially cautious regarding any release of patient records containing social security numbers; the information in the records in now doubly confidential.

Appeals court dismisses psychiatrist-psychoanalysts lawsuit: The New York State Psychiatric Association sued the New York State Commissioner of Education alleging that the recent licensing in New York State of psychoanalysts with masters degrees (see Health Law Supplement, Spring 2006, #16) dilutes the training necessary to be truly qualified to practice psychoanalysis, and therefore will harm both the public and purportedly better qualified doctoral-level psychoanalysts. A trial court disagreed in 2005, and this appeals court did too. The appeals court found that injury to the public was “speculative,” and that injury to Association members was “ephemeral” and in any case not of any consequence because the law was meant to protect the public, not doctors’ finances. New York State Psychiatric Association v. Mills, App Div, 3rd Dept, 2006 NYSlipOp 03490.

In my opinion the court’s finding that injury to Association members was “ephemeral” was either economically naive or disingenuous. How could doctoral level psychoanalysts not be harmed by creation of a new, less academically trained, more numerous class of psychoanalysts who because of the reduced cost of their training can, and because of their greater numbers must, offer psychoanalysis to the public for a lesser price? The finding that public policy does not cater to guild interests is the critical one though.

What’s MIB? It’s the “Medical Information Bureau,” a central database of medical information shared by insurance companies. If you apply as an individual for life or health insurance, you’re asked about your health and lifestyle. The insurance company to which you apply, if it’s a member of MIB, then reports your information to MIB. MIB will then provide that information in the future to other insurance companies to which you might apply. A MIB file contains only numerical codes indicating what medical conditions a person has, and certain medically relevant lifestyle choices, e.g., sky-diving and smoking. MIB files are not considered medical records and therefore are not subject to HIPAA privacy regulations. Rather, MIB is governed by the federal Fair Credit Reporting Act, the same law that governs credit reporting agencies like Experian. Once a year, you can get a free copy of your MIB file, if there is one on you, by calling them at 866 692-6901.

How lawyers pick lawyers. We’re often called by clients asking for referrals to attorneys in other practice areas. Usually, if it’s a local attorney who’s sought, and it’s a common enough specialty, we refer to someone we know personally who has delivered good service at a fair price to clients we have referred in the past. Sometimes though, an attorney is needed elsewhere geographically or in a practice area where we know no one personally.

Many laypersons don’t know that lawyers are rated by their peers (other attorneys and judges) and that the ratings are published by Martindale-Hubbell Law Directory, a division of LexisNexis. Martindale-Hubbell rates attorneys by soliciting opinions from those in the same practice and geographic area as the attorney being rated. There are two kinds of ratings, one for legal ability (A = Preeminent, B = High, C = Good) and one for ethical standards (just one rating, V = Very High, apparently you’re either ethical or you’re not, no in-between in this realm, and if you don’t get a V in the ethics area, then you cannot be rated in the legal ability category). Lawyers don’t pay for ratings. They are first rated after they’ve been practicing 5-10 years and then every 5 years or so after that. Not all lawyers have ratings; for some, an adequate sampling of peer opinions isn’t obtained and some attorneys choose not to have their ratings published. Five to ten percent of lawyers eventually attain the highest rating one can achieve, the “AV” rating. The rating system has traditionally been intended for use within the corporate and legal communities, mostly for attorney to attorney referrals, but more recently has been marketed to consumers also.

So, when we’re asked for a referral and we don’t know anyone personally, we look for a lawyer in the particular practice area in that geographic area who has an AV or BV Peer Review Rating. That way we feel assured that our client will most likely get competent and ethical service. All of this information, including lawyer ratings, is available to lawyers and the public at the website www.martindale.com.

WELCOME TO NEW MEMBERS OF THE NCPA LEGAL PLAN!

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.

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

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

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