HEALTH LAW SUPPLEMENT Winter 2013

A proposed change in the law to allow psychologists to use testing technicians. New York State Senate bill number S4176 would allow psychologists to use unlicensed technicians to administer and score standardized psychological and neuropsychological tests. This was the common practice among psychologists prior to the passage of their 2002 scope of practice law. But following passage of that law, an interpretation of it in 2003 by the State Education Department opined that use of unlicensed technicians constituted the unlicensed practice of psychology because administration and scoring of tests was within the scope of practice of psychologists. The new bill, if passed by the New York State legislature and signed by the governor, would require unlicensed testing technicians to possess a bachelor’s degree and to be trained by a psychologist in a setting where the ratio of technicians to licensed psychologists did not exceed 3:1, and would prohibit technicians from interpreting data or giving opinions. Medicare permits the use of technicians under CPT code 96119. The American Psychological Association and other professional associations representing neuropsychologists support the proposed change in the law.

The US Department of Labor will investigate some managed care organization (MCO) denials as parity violations. Patients who work for employers who have over 50 employees and provide health care coverage have recourse to the Employee Benefits Security Administration (EBSA) of the USDOL if they believe that their MCO has used criteria or processes for determining medical necessity for mental health care different from those criteria and processes used for making determinations for medical and surgical care. Despite these being violations of the federal parity law, the Mental Health Parity and Addiction Equity Act of 2008, they continue to be common practices among MCO’s. One essential difference often found between the two types of criteria is that for medical/surgical decision-making regarding medical necessity, the standard used is a national standard of care related to current scientific knowledge and clinical practice, while for mental health care, the MCO used an internal and much more restrictive standard, one unrelated to customary clinical practice. Another difference is a procedural one: “pre-certification” is usually not required for medical or surgical care, but it is often needed for psychotherapy.

To make a complaint, a patient or practitioner would go to the EBSA/DOL website called “Request for Assistance from The Department of Labor, EBSA,” at www.askebsa.dol.gov/WebIntake/Home.aspx, click on “Plan is not complying with legal requirements (such as ERISA, COBRA, HIPAA, Affordable Care Act),” and then describe how the process of determining medical necessity or the requirement for pre-certification differs between mental health and medical care. Attaching the MCO’s benefits booklet can be helpful. A complaint can be submitted online or by mailing the printable form.

The Affordable Care Act (ACA), changes to Medicaid and Medicare, and the impact on psychotherapy practice. Two areas where psychotherapists are likely to see changes in their practices relatively soon are in referrals of lower income patients who now, under the ACA, qualify for Medicaid, and in the reorganization of Medicare based on Accountable Care Organizations (ACO’s). Under the ACA, employers of more than 50 employees can either purchase coverage for employees or not; if the latter, then the employer pays a fine of $2000 per employee. Still, the fine is less than insurance, and employers may decide to forgo the difficulties of negotiating and maintaining insurance for employees. If they do so, then many lower income workers now covered by employer-sponsored insurance are likely to be forced, under the individual mandate whereby individuals must buy insurance or pay a fine, to seek private insurance on the federal or state exchanges. When buying private insurance, a significant portion of such lower income workers are likely to be directed to Medicaid, which is relatively low-cost and has expanded eligibility requirements under the ACA. Most mental health practitioners do not accept Medicaid because of low reimbursement rates and the hassles involved with record-keeping and billing. Thus psychotherapists may lose a significant portion of their lower income patients.

Under the ACA, Medicare is to be reorganized based on ACO’s. ACO’s will provide, on a capitated basis, comprehensive care to patients, with contracts renewable every 3 years. The foundation of ACO’s will be primary care practices, hospitals and consortiums of provider entities. If ACO’s meet certain quality standards, then they will be eligible to share savings that presumably will result. Only one quality standard pertains to mental health, and that is screening for depression. Under the ACO model, “allied health professions,” including non-medical mental health professionals cannot share in these savings. Rather, those who do share savings will make the decision whether to refer to allied health professionals when doing so decreases their potential savings. Referring ACO’s will likely be reluctant to refer for psychotherapy and any speciality services where patient outcomes are not clearly beneficial in terms of a cost/benefit analysis, and that calculation will be hard to make regarding mental health care where quality standards are lacking.

Uncertain is whether these changes in Medicaid and Medicare coverage will also occur with non-governmental private insurers. If they do, then the practices of private psychotherapists, especially those working primarily out-of-network, may be adversely affected by the ACA, despite the Act creating more insured persons than before. Reimbursement rates for psychotherapy may decrease, or fail to increase. Private insurers may mimic Medicare ACO’s in insisting on cost-benefit analyses weighing the cost of care with quality of care outcome measures. Insurance payment for extended psychotherapy for all who seek it with its often slow progress may be replaced by more patients seen for brief interventions.

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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