HEALTH LAW SUPPLEMENT Winter 2010

New York State’s new Family Health Care Decisions Act. Signed into law earlier this year, this law allows family members to make health care decisions, including with special protections for end-of- life decisions, for an incapacitated person even in the absence of a previously executed health care proxy. Many persons were under the mistaken impression that they could make such decisions for their next of kin, but that was not the case in New York State until now. The new law uses a listing of those surrogates to whom decision-making will be delegated in the following order: a legally appointed guardian, spouse or domestic partner, adult child, parent, sibling, and finally, close adult friend or relative. It’s still advisable to have a signed health care proxy because the priority established by law may be different from what you would wish, multiple individuals (e.g. children) may have the same priority and may disagree, surrogates may not know your wishes as you would state them in a proxy appointment, and a proxy has more power than a surrogate appointed by operation of the new law.

New York’s new Palliative Care Information Act. Just signed into law, this Act requires physicians and nurse practitioners to offer terminally ill patients or their proxies or surrogates information and counseling about palliative care and end-of-life medical treatment options such as the right to comprehensive pain management. The healthcare practitioner is only required to offer to provide such information; the patient may decline or accept the offer. The practitioner also has the option of referring the patient to obtain the information from another practitioner. Physicians opposed the law because there are criminal penalties for non-compliance, and from a concern that the information might give the appearance that the practitioner would not treat the terminal illness aggressively.

New York’s new HIV testing law. Passed in September and intended to increase HIV testing, this law requires that HIV testing be offered to anyone between the ages of 13 and 64 receiving hospital care, clinic care or treatment from a physician, physician’s assistant or nurse practitioner. A particular seven points of information about HIV are required to be given to obtain consent to the testing. The consent for testing may be oral if test results can be made available within an hour. If results take longer, then written consent that contains information about the test is necessary, but the form is simpler than the one previously required. Persons under 18 do not need parental consent to be tested for HIV (or other sexually transmitted infections for that matter). Post-testing, the special provisions regarding the confidentiality of HIV information under New York law continues in effect.

Psychiatrists are allowed use of and reimbursement for generic E/M codes in NYS. The New York State Insurance Department has recently issued an interpretation of New York Insurance Law that requires insurers to reimburse psychiatrists for all current Evaluation and Management (E/M) CPT codes. Insurers may not limit the types of CPT codes that they accept from psychiatrists to those specifically designated as “psychiatric.” Many insurers had limited psychiatrists to use of psychotherapy with E/M codes (the 908 codes), but NYSID stated that as physicians, psychiatrists must also have access to general medical E/M codes (99201-99499) for those services that are more medically oriented. For instance, psychiatrists may counsel patients with mental illnesses about many types of issues related to general medical health that are not strictly related to managing psychiatric medications.

Funeral or bereavement leave for same-sex partners in NYS. Many institutional clients have a policy of granting funeral or bereavement leave to employees whose spouse or member of the spouse’s family dies. Such a policy is optional and not required by law. Effective October 29, 2010, New York Civil Rights Law §79-N2 requires that if there is such a policy then it also must apply to same-sex committed partners and relatives of the partner. Those clients who have a written policy granting leave to spouses are advised to give written notice to all employees of the extension of the policy to same-sex partners. Failure to give such notice of change in the policy may give rise to allegations of unequal treatment based on ignorance of the change.

Does your answering service do this? Your answering service is your agent for whose actions you are vicariously liable. The first question a service should ask is, “Is this an emergency?” And, for those cases where the answer is affirmative, the service should either have immediate access to you or respond by informing patients to call 911 or go to an emergency room. If you use an automated messaging system, then the same information should be given.

Should I say I’m sorry? There is a movement afoot (called “Sorry Works!”) encouraging healthcare professionals to apologize to patients for mistakes as a means of risk management and for humane reasons. A significant legal issue may arise with apologies however, in that by common law they are considered admissions of wrongdoing, and despite being hearsay, are admissible in subsequent legal proceedings, e.g., malpractice and disciplinary proceedings. About half of all states now have laws that disallow apologies by healthcare practitioners to be used as evidence. New York State has no such protection for apologies however. In my practice, this vulnerability arises for mental health clinicians who have a patient suicide or injured by a suicide attempt. I generally advise the clinician to offer condolences or sympathy but in a manner that clearly does not and cannot be construed as an admission of any wrongdoing or responsibility.

DSM-5 expected in 2013. The new Diagnostic and Statistical Manual of Mental Disorders is expected to be completed by the American Psychiatric Association in 2013. Drafts can be viewed at www.dsm5.org. One immediately apparent change is the use of Arabic rather than Roman numbers for this and future revisions.

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 HANUKKAH (BELATED), 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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