HEALTH LAW SUPPLEMENT Winter 2012

New CPT codes for much psychotherapy starting January 1, 2013. Beginning January 1, many but not all of the most frequently used psychotherapy codes will change. Among the new codes are 90791 replacing 90801, 90832 replacing 90804, 90834 replacing 90806 and 90837 replacing 90808. The codes now specify a single duration: 90832 is 30 minutes, 90834 is 45 minutes and 90837 is 60 minutes, but there remains some flexibility. The CPT states that 90832 can be used for therapy of 16 – 37 minutes length, 90834 can be used for therapy of 38 – 52 minutes length, and 90837 can be used for therapy of 53 or more minutes of length. There are other changes and clients are advised to seek a comprehensive listing and crosswalk from their professional associations or the AMA. With these changes, and also based on recent audits by insurers, we are advising clients to list on every progress note in patients’ charts the starting and ending times of psychotherapy sessions. Please note that start and end times of coded services should be based on time spent face-to-face with patients. For example, if a patient is 15 minutes late to a 45 minute session, he or she should be charged for a 30-minute session (90832) with the additional 15 minutes being billed as un-coded (and non-reimbursable) “reserved time.”

Health insurance for autism services, scheduled to take effect in November, partially delayed. As of November 1, 2012, under the New York Autism Mandate, coverage must be provided for care provided for autism spectrum disorders by psychiatrists, psychologists and LCSW/R’s. Also supposed to be covered under the mandate was applied behavior analysis provided by behavior analysts (BCBA’s) certified by the Behavior Analyst Certification Board, a national professional credentialing (but not state licensing) body, with a limit of $45,000/year for coverage of applied behavior analysis. However, the NY Department of Financial Services in Emergency Regulation 201 on October 31, 2012 determined that to allow reimbursement to unlicensed albeit certified BCBA’s would violate State policy against unlicensed practice. So reimbursement for applied behavior analysis is limited for now to those professionals who are both licensed mental health professionals in NYS and BCBA’s. There are just a few such dually credentialed professionals in the State making applied behavior analysis services difficult to access for many patients. There are bills pending that would license BCBA’s in New York (A10064, S7017) but the legislature has not yet acted on them. There are 31 states with some form of mandatory coverage for autism and 8 of them license BCBA’s.

States are starting to mandate coverage for telehealth services. 13 states now mandate that private insurance companies cover telehealth services that would otherwise be covered when provided face-to face. New York is not among them. Many clients call to ask about billing for telephone psychotherapy. Our experience has been that some insurers will approve telephone sessions for brief periods during a course of therapy that is otherwise face-to-face in the event of extenuating circumstances such as patient need when combined with patient disability, business or vacation travel*, or crisis management. Without pre-approval of the insurer, telehealth services should not be billed as a coded service by New York practitioners, as the codes remain reserved for face-to-face services.
* When patients travel out of state, there is the additional problem of establishing the right to practice in the state in which the patient is located; many states have guest licensure provisions that allow practitioners to provide telehealth services for a brief period of time.

Is judicial oversight required for release of child’s record in a custody dispute? In a case reported in the NY Law Journal on October 23, 2012, a judge refused to allow a parent to use records of a child’s therapy in a custody dispute between the parents. The father of a 9 year old girl obtained the child’s therapist’s treatment records with a properly executed HIPAA authorization. The therapist was reluctant to provide the records but did so upon the advice of her professional association that she was required to do so under HIPAA. The judge ruled that the lawyer for the father should have first come to the judge for approval of the release to secure the records. The judge also seemed to state that the therapist should have declined to provide records under the provision of HIPAA that permits a health professional to withhold information about a child’s treatment from a parent if it is in the best interests of a child to do so, 45 CFR §164.502(g). There is a similar provision in New York State’s access law, New York Public Health Law §18 (2)(c). The judge did not take into account that, by law in New York State, such denials of access by practitioners are subject to review by medical access review committees, not judges. NYPHL §18(3)(e). The judge also did not address the issue of whether therapists might be obligated to deny access to parents if they believe a child patient might be harmed; denial of access is permitted but not required under the federal and State access laws. Unanswered was the question of how a therapist might ascertain that records sought by a parent are to be used in a custody dispute. My thanks to Joe Scroppo JD, PhD for directing me to this case.

No firing permitted as retaliation for reporting suspected child abuse. A school nurse alleged that she was fired by a private religious school in retaliation for reporting suspected child abuse as required by law; the nurse was a mandated reporter. The school moved to dismiss the lawsuit on the basis that failure to report suspected child abuse did not present a “substantial and significant danger to public health or safety,” and therefore the nurse was not protected by New York State’s “Whistleblower” Law, NY Labor Law §240. The court disagreed with the school and found that a report of suspected child abuse was indeed indicative of a public health threat. Two of the appellate judges dissented arguing that a single instance of suspected child abuse did not present a threat to public health. This is the first time that New York’s Whistleblower Law has been used to protect a mandated reporter from retaliation for a report. Villarin v RHL School, 96 AD3d 1 (1st Dept 2012).

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.

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