HEALTH LAW SUPPLEMENT Winter 2016

Mental health parity is proving difficult to achieve but steps are being taken.
There are large class action lawsuits pending to enforce the federal Mental Health Parity and Addictions Equity Act (MHPAEA) including locally New York State Psychiatric Association v United Healthcare and American Psychiatric Association v Anthem Health Plans. The plaintiffs in these cases assert that these insurers curtail psychotherapy for patients requiring long-term treatment; allow no more than weekly psychotherapy for patients when greater frequency is recommended, and in cases of risk of hospitalization or self-harm, necessary; make it difficult to obtain initial and continuing authorizations for mental healthcare; systematically reimburse providers of mental health services at less favorable rates than providers of other healthcare services in order to discourage providers from accepting health insurance; use more stringent medical necessity review standards for mental healthcare than for medical-surgical benefits; and engage in a pattern of denying coverage for out-of-network mental health services due to purported failures by providers to respond to requests for back-up clinical information when in fact no such requests have been made. Further, the suits allege that the insurers manipulate non-quantitative treatment limitations, CPT code changes, reimbursement rates and documentation requirements in order to deny mental health patients insurance benefits to which they are entitled.
On October 28, 2016, a presidential task force took action to enhance enforcement of MHPAEA by awarding $10 million dollars to certain states including New York for enforcement efforts, creating a website to assist consumers to understand their rights under the law and to file complaints with the Department of Labor regarding violations of it,
http://www.hhs.gov/mental-health-and-addiction-insurance-help.
A bill was also introduced in the New York State legislature, S07988, for the State to enhance enforcement of MHPAEA and the State equivalent (Timothy’s law) by providing consumers with information about their rights, see http://www.ag.ny.gov/sites/default/files/pdfs/ publications/Mental-Health-Parity-Flyer-for-providers.pdf, and creation, based on objective analysis and patient complaints, of a “…mental health parity report that includes a ranking from best to worst based upon each (insurance) company’s compliance with mental health and substance abuse parity laws…”

Iowa becomes the fourth state to allow psychologists to prescribe.
This year, Iowa followed New Mexico, Louisiana and Illinois in granting prescription privileges to psychologists. As with the other states, the Iowa law requires that psychologists pass a certification exam, complete postdoctoral study in psychopharmacology, undergo a specified period of supervised experience, and utilize only a limited formulary. There are similar bills pending in the New York State legislature, S 5824 and A 9236, but if past experience in the State with such bills is a predictor, they stand little chance of passage given the strong opposition to them by the New York State Psychiatric Association. The Psychiatric Association asserts (on its website) that by lobbying for the bill, the State Psychological Association “apparently intends to renege on its 2002 agreement by seeking to remove the statutory prohibition on prescribing.” The State Psychological Association claims (on its website) that due to their more comprehensive therapeutic approach, psychologists have enhanced alliances with and better knowledge of their patients, and also that “rural areas of New York state are often underserved in the area of mental health and often have no immediate access to psychiatric care.”

Introduction of a duty to protect bill in New York.
This year, bills were introduced that would impose a duty to protect upon private mental health practitioners, A 9484, S 7424. Most practitioners and healthcare attorneys assume such a duty exists ethically and perhaps in State common law, but it has not as yet been made statutory in New York. There are philosophical and ethical arguments for and against such a bill, of course, and the bill would provide a certain clarity for clinicians. But in my opinion, it suffers from certain drafting deficiencies as well. As justification for the bills, the authors state that mental health professionals working in facilities licensed by the State Office of Mental Health already have such a duty. They do not. They have permission to break confidentiality when individuals are endangered, not a mandate to do so. See Mental Hygiene Law 33.13 (c)(6). Permissive laws have certain advantages over mandates, protecting clinicians from liability for disclosures without potentially imposing liability for failure to disclose. Secondly, and perhaps more semantic than substantive, the bill mandates disclosure in the event of threatened “serious imminent harm.” That seems to me to confuse or equate “harm” with “danger.” The former is broad and vague, while the latter is generally interpreted as relating to actions that may be life-threatening. Compare, for example, MHL 33.13 (c)(6) with 33.13(c)(9)(v). Perhaps the drafters adopted the “harm” standard from the New York Safe Act, Mental Hygiene Law 9.46, but the Guidance Document to that Act at least states that the threatened harm must also be “physical.”

State guidelines issued concerning providers and shared space.
Issued by the NYS DOH, OMH and OASAS on September 14, 2016, these guidelines pertain to arrangements where multiple providers, at least one of which is licensed by one of the above state regulatory agencies, share the same space either at different times or the same time. However, they provide guidance that is useful for all clinicians who share space with other clinicians. In such situations, a risk of vicarious liability may arise if clients might reasonably believe that services are being provided by a single group, with such belief founded on misleading displays (e.g., a sign on the door of an office suite housing several individual practices that reads, for example, “Island Mental Health Associates”) or a lack of notification disclaiming affiliation. According to the Guidelines, patients must understand exactly who is providing services to them, through the “use of clear signage … that the providers are separate and distinct.” And of course, medical records must be separated and secured, and shared only as consistent with State and federal law

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𝄞 HAPPY HANUKKAH, CHRISTMAS AND 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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