HEALTH LAW SUPPLEMENT Winter 2014

E-prescribing to be required March 27, 2015
Effective March 27, 2015, under the I-STOP law, e-prescribing will be mandatory in New York State. Even though the purpose of the law is to reduce prescription drug abuse, all prescriptions and not just those of controlled substances, will be required to be issued by prescribing practitioners directly and electronically to pharmacies. Covered practitioners include dentists, midwives, nurse practitioners, optometrists, physicians, physician assistants, and podiatrists. Limited exceptions to the mandate exist where: the prescriber has a waiver from the Department of Health; there is a temporary technological failure; it would be impractical for the patient to obtain prescribed drugs in a timely manner; or the pharmacy that will dispense the medicine is outside New York State. Waivers from the mandate will be granted for reasons of economic hardship or technological limits outside the control of the prescriber, and must be renewed annually.

Prescription privileges for psychologists in New York
State Senator Catherine Young has introduced a bill to the New York State Senate (S-7488) that provides for the certification of psychologists to prescribe psychotropic drugs. The prescribing privilege would be granted to psychologists who obtain a masters degree or its equivalent in psychopharmacology, which must include clinical experience. Senator Young cited as reasons for the proposed legislation a shortage of physicians, the success of prescribing psychologists in New Mexico, Louisiana, and the US military, and studies that suggest that because psychologists prescribe fewer medicines and instead utilize behavioral therapeutic strategies, the incidence of side effect complications of psychotropic medicines would be reduced.

The New York State Psychiatric Association is opposed to prescribing privileges for psychologists, arguing that the ability to prescribe psychotropic medications should be limited to physicians who alone possess the requisite education, training and experience to safely prescribe.

The New Jersey Assembly passed a bill in June 2014 that grants prescribing privileges to psychologists. The bill has not passed the NJ Senate and is not law. The arguments pro and con are the same as in NY.

Insurance coverage for gender dysphoria and other DSM conditions
In an opinion dated December 11, 2014, the New York State Department of Financial Services (formerly State Insurance Department) stated that insurers in New York State may not exclude coverage for the diagnosis or treatment of Gender Dysphoria (DSM 5, 302.85). The opinion extended to all diagnoses covered by the DSM. “Issuers in New York should use the DSM as the recognized independent standard of current medical practice in determining what constitutes a mental health condition. Therefore since the DSM recognizes a diagnosis of gender dysphoria, an issuer’s definition of mental health condition is also required to include gender dysphoria, entitling a person with gender dysphoria to MHPAEA’s (the federal Mental Health Parity Act) protections.” Insurers have typically excluded other DSM-recognized mental health conditions from coverage, e.g., personality disorders, and are presumably now precluded from doing so.

Do State Boards have jurisdiction over VA (or other federally employed) psychologists?
In a case of first impression, the Montana Board of Psychologists answered this question in the affirmative. A VA psychologist evaluated a veteran at the VA Medical Center at Fort Harrison, and downgraded the veteran’s neuropsychological disability rating from 70% to 10%. The veteran unsuccessfully exhausted all appeals with the VA, and then complained to the Montana State Board that the psychologist was practicing outside the scope of his competence. The Board ruled that the psychologist had inadequate training to perform neuropsychological evaluations and sanctioned him for practicing outside areas of his expertise. Perhaps more importantly, the Board also ruled that it had jurisdiction over the federally-employed but State-licensed psychologist. A federal attorney had argued that the Board did not have such jurisdiction over an employee of the federal government working in a federal facility..

Restrictive covenants in employment agreements with professionals
Most employment contracts with mental health professionals contain restrictive covenants (a.k.a. non-compete agreements). These place limits on the professional’s ability to work in a specific geographic area for a particular period of time after employment. They may also prevent the professional from soliciting patients, employees or referral sources (non-solicitation clauses), and require confidentiality.

Many states limit or disallow restrictive covenants. In New York however, under certain conditions, restrictive covenants are valid and enforceable in court. The conditions are that the restrictions must be reasonable in time and area, must be necessary to protect an employer’s legitimate (not speculative) interests, must not be harmful to the general public (for example, they should reasonably accommodate the right of patients to select the practitioners of their choice) and must not be unduly burdensome to the practitioner.

Restrictive covenants are never favorable for practitioners. Almost always, practitioners should negotiate or have their attorneys negotiate to ensure that the restrictions are only as restrictive as they must be to protect the interests of the employer.

NB. Restrictive covenants are inappropriate in independent contracting arrangements and indeed likely convert the contractor into an employee.

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 NEW YEAR TO ALL! 𝄞

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

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