HEALTH LAW SUPPLEMENT Winter 2011

New York State has a new autism treatment law and relatedly a new mental health profession.. Signed into law by Governor Cuomo in October and to take effect November 1, 2012, the law (Assembly 8512) requires insurers to cover screening, diagnosis and treatment for autism spectrum disorders. The new law will include routine toddler screenings, behavioral health treatment, speech therapy, occupational therapy and physical therapy. About 1 in 110 children are now diagnosed with an autism spectrum disorder. The association of health insurers believes that premiums may rise hundreds of dollars as a result of the law and has stated an intention to negotiate changes to reduce coverage before the law takes effect. Supporters of the law foresee only very small increases in premiums.

One aspect of the law is the creation of a new mental health profession, and one that shares a privileged status together with MD’s, Ph.D.’s and LCSW/R’s as mandatorily reimbursable for its services. The new profession is “board certified behavior analyst” (BCBA). The new profession is limited in those services it may provide, that is, it may provide only “behavioral health treatment” to individuals with an “autism spectrum disorder.” The law includes a $45,000.00 annual cap on coverage for “such applied behavior analysis.” It also appears that BCBA’s may be permitted to supervise others to conduct behavioral health treatment for persons with autistic spectrum disorders. The commissioners of health and education are delegated authority to promulgate enabling regulations. It remains to be seen how BCBA’s will be established and regulated as a profession, including relative to the already established licensed mental health professions.

Homicide rates correlate with civil commitment. A new study (“Civil commitment law, mental health services and US homicide rates, S. Segal, Soc. Psychiatry Epidemiology, 11/10/2011) finds that mental health factors account for about 17% of the variance in homicide rates. Broader civil commitment laws and the availability of psychiatric beds especially are related to lower homicide rates. In its latest rating by the National Alliance for the Mentally Ill (NAMI), New York State rated a “B” in those areas as compared to the national average of “D.”

Independent contractors or employees. A number of clients, mostly large practices, have been audited by the New York State Department of Labor regarding alleged mis-classification of professional employees as independent contractors. Often, the audits are instigated by the DOL when a former “contractor” applies for unemployment benefits, to which he or she would not be entitled unless reclassified as an employee. While there are several factors that determine the difference and consultation with attorneys and accountants is advised in all cases, the DOL has seemed to focus on the lack of written contracts, and where there are written contracts, restrictive covenants prohibiting professional “contractors” from working for other practices, as indicative of employment rather than of a genuine contracting arrangement.

Termination by the therapist and the risk of a professional complaint. In my experience, complaints of patient abandonment to licensing boards when termination of treatment is initiated by a therapist are common. When therapists discontinue treatment of patients who would rather continue with them, patients may feel abandoned and rejected, as well as aggrieved due to perceived lost investments of time and money. Often the complaints are dismissed following investigation because the therapist’s clinical actions are found to have been justified. But even when therapists are ultimately absolved of any wrongdoing, dealing with a complaint is unpleasant and stressful, and it takes significant time and legal assistance to mount an effective defense.

Professionally and legally, therapists may terminate with patients for almost any reason, the only prohibited reason being discrimination based on the patient’s membership in a protected class.But when terminating with a patient in need of continued care, it’s not enough to simply make appropriate referrals as some believe. Absent extraordinary circumstances or clinical contraindications, if patients are in need of continuing care, then therapists must give the patients advance notice of termination and offer to continue to treat them in regularly scheduled sessions for that period of time that affords an adequate opportunity to them to seek alternative care.

The practical application of the legal and professional standard* is as follows. The therapist must notify the patient unequivocally that the therapist plans to terminate care, and set a date after which care will no longer be provided. That date is based on research by the therapist into the time needed for the patient to transfer his or her care to those referrals chosen by the therapist (not necessarily in consultation with the patient) that match the clinical and financial needs of the patient. The therapist must also offer to facilitate transfer by consulting with subsequent practitioners chosen by the patient. Correspondence to the patient confirming termination is strongly recommended for risk management purposes and because the emotional reaction of the patient to the premature termination so often leads to misunderstanding. From a legal standpoint it is not of consequence whether the patient actually transfers care, only that notice of termination is given and a transitional period of treatment is offered. (If, however, a patient does not transfer care because his or her judgment is so impaired regarding the need for continued care, then the therapist must assess whether a breach of confidentiality is warranted to notify relatives or others who might assist the patient to obtain the needed treatment.)

Usually this legal and professional standard requires a two-step termination procedure. Take the example of non-payment. The first step would be to inform the patient that unless past-due payments are paid by a certain date, a termination process will begin. Then, if payment by the date set is not forthcoming, the above steps are taken, i.e., an actual termination date is set, a transition period is offered and referrals given, and all aspects are confirmed in correspondence to the patient.

There are extraordinary circumstances when a therapist is constructively relieved of all or some legal duties by the conduct of a patient; for example, when a patient is guilty of criminal misconduct against or sues a therapist. Therapists may also terminate without notice and a transitional period if it’s necessary for the welfare of the patient; for example, when further contact with the patient is clinically contraindicated, such as when a patient is overwhelmed by and attempts to act on an erotic transference or becomes imminently dangerous and immediately requires a higher level of care.

* There is an additional ethical standard upon termination that, unless clinically contraindicated, the therapist offer a transitional period of adequate length to permit the patient to engage in a termination process.

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, 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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