HEALTH LAW SUPPLEMENT Winter 2015

The New York State telehealth coverage law which takes effect January 1, 2016 is still lacking interpreting regulations. The law itself lacks clarity about particulars of coverage. For example, it’s unclear whether a physician’s order is required for ongoing treatment. Also unclear is whether telephone services are covered, i.e., must services be audio-visual? And how are telehealth services to be coded? Does the law cover mental health services only when they’re rendered by a MD, PhD or LCSW (and not by LMHC’s, LMFT’s, LP’s and LCAT’s)? Hopefully, regulations to answer these questions will be issued shortly.

Rest easy, advice columnists. A Kentucky state licensing board alleged that an advice columnist who gives psychological advice must be licensed in the state in which the advice is published. The licensing board sought to sanction a psychologist unlicensed in Kentucky (but licensed in North Carolina) who wrote a column for the Lexington Herald Leader. Kentucky officials issued a cease and desist order to the columnist. A US District Court judge overruled the Kentucky authorities, on the general principle that occupational licensing laws cannot censor free speech. The judge ruled that there was no patient relationship involved in writing an advice column, Kentucky had no compelling state interest necessary to forbid otherwise permissible speech, and that the cease and desist order was therefore unconstitutional. The judge stated that, “to permit the state to halt this lawful expression would result in a harm far more concrete and damaging to society than the speculative harm which the state purportedly seeks to avoid…” Rosemond v Conway et al., Kentucky Eastern District Court, No. 3/2013cv00042, 09/30/2015.

Change to “incident-to” billing rule. On November 16, 2015, the Center for Medicare and Medicaid Services issued new regulations that now require that the supervisor of the ancillary personnel who deliver services to patients must be the party whose billing number is connected to the “incident-to” service. Prior to the passage of this clarification, it was unclear whether services by ancillary personnel had to be connected in billing to the actual supervisor, or whether supervision could be provided by another supervisor. “Incident-to” is a much misunderstood category of healthcare service by which, if strict conditions are met, a supervisor may bill for the services of a supervisee as if the supervisor him or herself rendered the service, i.e., billing is at the supervisor’s rate. N.B. Almost all mental health managed care contracts with private practices prohibit “incident-to” billing.

New York State seeks to ban “conversion therapy.” A bill prohibiting conversion therapy was passed by the State Assembly in 2015 (A4958) but has not passed the State Senate. The proposed bill would protect minors from being offered “conversion” or “reparative” therapy whose goal is to change sexual orientation. All the major professional societies have condemned conversion therapy (also called Sexual Orientation Change Effort or SOCE) and support legislation similar to that proposed by New York. Illinois, California, New Jersey and the District of Columbia have passed such legislation. Legislation prohibiting SOCE has been constitutionally upheld as a legitimate restraint on free speech due to the state’s interest in protecting youngsters from the harm caused by it, US Ct of Appeals, 9th Circuit, Welch v Brown, Pickup v Brown, 2013.

Mental Health Public Awareness Tax Check Off. Something new. On November 23, 2015, Governor Cuomo signed the Mental Health Tax Check Off Bill into law. As of January 2016, New York State income tax forms will allow tax payers to make a tax free donation to a fund that will help end the stigmatization of mental illness. There are now 11 such check off boxes on NYS income tax forms. Others check-offs have raised up to $51 million. Funds collected from the new check off will be made available to the NYS Office of Mental Health.

For those who accept credit card payments. In October 2015, US credit card payment networks changed the rules for responsibility for credit card fraud. Prior to that date, credit card issuers took responsibility for fraudulent credit card transactions. As of October 2015, financial liability for fraudulent transactions shifted to merchants if they don’t use EMV (Europay Mastercard and Visa) chip-enabled devices to process credit card transactions. For the past few months, credit card issuers have been sending consumers new cards that have an embedded high-tech chip as well as the traditional magnetic strip. Merchants are supposed to follow suit and upgrade their credit card processors to accept the new EMV cards. If fraud occurs because a merchant used an older processor that wasn’t EMV enabled, then the merchant will be financially liable. The new standards do not mandate that merchants obtain the new processors, and do not render the old processors unusable (the new cards still have magnetic strips); they only shift liability. In Europe the new cards reduced credit card fraud by 63%. They don’t help cut down on online credit card fraud however.

Questionable means to control negative online reviews Negative reviews are, at the very least, a nuisance to healthcare practitioners. Sometimes they adversely affect livelihoods and reputations. Some consulting firms recommend that practitioners include a provision in their contracts with patients either prohibiting them from posting reviews or, alternatively, that assign all rights to online publications about the practitioner to the practitioner. The former type of clause prohibiting consumer reviews by patients was found by a New York court to violate consumer protection laws. New York v Network Associates, 758 NYS2d 466 (2003). The latter type, a copyright assignment by which practitioners are granted rights that allow them to control and remove negative reviews of themselves by their patients with a simple takedown notice are apparently increasingly used. In my opinion, they are subject to legal challenge because of the superior bargaining position of the practitioner, because patients don’t notice, understand and can’t really change them, and because they are unrelated to the provision of healthcare. They are also, in my opinion, ethically suspect because they place the practitioner’s financial interests ahead of the patient’s rights to free speech.

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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