HEALTH LAW SUPPLEMENT Winter 2021-22

Remaining Emergency Regulations in New York State. Most COVID emergency regulations that were promulgated in March 2020 by then Governor Cuomo that changed, usually by relaxing, licensure and related requirements for professionals, expired on June 25, 2021. Some changes have been continued or re-issued though. Clinical experience and supervision requirements imposed on permit holders and other supervisees in social work and the mental health professions (those professions include mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts) that prior to the pandemic were required to be in-person may continue through remote means, i.e.. characterized by NYSED as using “distance technology.” See FAQ 20 http://www.op.nysed.gov/COVID-19FAQS.htmlnder. The same appears to be true for limited permit psychologists and behavior analysts but the guidance is less clear, see FAQ’s 44, 45, 46 at the above, seeming to state a “don’t ask, don’t tell” policy of the licensing boards for those professions. Executive Order No 4 issued on September 27, 2021 allows physicians, nurse practitioners, and social workers (and some other physical healthcare professionals) licensed in other states to practice in New York due to continued staffing shortages. Apparently there is no shortage of psychologists, mental health professions (as defined above) or licensed behavior analysts, as out of state licensees in those professions are no longer permitted to practice in New York without first obtaining licensure here.

Confusion regarding telehealth for Connecticut residents by out of State licensees. As New York State did during the pandemic, so Connecticut did as well, allowing out of State licensed healthcare professionals to practice in Connecticut. Apparently the outcome of this relaxation was a success because on May 11, 2021, pursuant to an order signed by Governor Ned Lamont, Connecticut announced that though June 30, 2023, “Section 5(b) of Executive Order 7G allows a clinician licensed in another state to treat someone in CT through telehealth without getting licensed in CT.” See https://portal.ct.gov/Coronavirus/Covid-19-Knowledge-Base/Telehealth Thus it appeared that the relevant emergency regulation permitting out of state licensees to practice in CT that was scheduled to expire on July 20, 2021 would be extended for two years. But apparently the Governor neglected to consult with the Commissioner of Public Health because more recent guidance from CT indicates that the Commissioner of Public Health has not issued an order that is necessary for the Governor’s Executive Order to be effected. I guess this will be clarified shortly. It may just represent a lag between the Governor’s office and regulators or perhaps ongoing tension about the extent of the governor’s emergency powers.

Progress in interstate practice. When we have represented licensed professionals (almost all psychotherapists) accused of practicing in a state in which they are not licensed, the rationale given by regulators for the prosecution (always civil, not criminal, in my experience) is that their state’s citizens need recourse to their state’s licensing boards and courts in order to be protected from professional misconduct, incompetence and negligence, and that such recourse is lacking when a professional treating them is only licensed and has an office in another state, not their state. For example, neither a licensing board in California, nor courts in that State, have jurisdiction over a therapist licensed only in New York State who treats a California resident by telehealth. Some states have recently resolved this issue by requiring registration with their licensing boards and the appointment of a registered agent by out of state licensees, and with such registration and appointment, allowing out of state licensees to practice telehealth in their states without obtaining full licensure there. Such registration and retaining of a registered agent subjects the out of state licensee to the jurisdiction of the licensing board and courts of the state in which they are thereby permitted to practice. Florida, Arizona and West Virginia have recently taken such action, the former two including as a reason for the change that they wish to accommodate their snowbirds by allowing them access to their healthcare providers in their home states while they winter in warmer climes. See https://flboardofmedicine.gov/licensing/out-of-state-telehealth-provider-registration/ https://azgovernor.gov/governor/news/2021/05/governor-ducey-signs-legislation-dramatically-expand-telehealth and https://code.wvlegislature.gov/30-1-26/

And so has New Jersey begun an experiment in interstate practice. Somewhat similar to the above three states, New Jersey has recently implemented a policy of apparently allowing out of state licensed professional entities to practice telehealth in NJ if they register in NJ and appoint a registered agent there. The particulars of the policy are a bit unclear however. The fee required by NJ for registration there is more expensive than elsewhere, $1500 annually, and there is a deadline for registration, January 3, 2022. The reason for the deadline is unstated; it was extended once and may be again. See https://dohlicensing.nj.gov/telehealthtelemedicine/

New York City expands the Fair Chance Act (FCA). The FCA limits the type of inquiries that employers can make regarding criminal history during the hiring process. Changes in it took effect on July 29, 2021 that expand the protection afforded to job applicants. Now, employers are required to conduct background checks in a piecemeal fashion. Initially when employers assess a candidate’s qualifications, the employer may not undertake any review of criminal history. Then depending on the outcome of that assessment, the employer may make a conditional offer of employment to the applicant. Only after a conditional offer is made may a check of criminal history be conducted. The conditional offer may then be rescinded only if there is a direct conflict between the applicant’s criminal history and the prospective job, or if employing the applicant would present an unreasonable risk to property or persons.

It should be noted that professional misconduct for licensed professionals in New York State includes conviction of a misdemeanor or felony, New York State Education Law §6530 (9)(a), and that the New York State Board of Regents publishes on its website a listing of all professionals who have been sanctioned since 1994. Thus a review of a licensees professional status and disciplinary history will reveal any recent criminal convictions, see http://www.op.nysed.gov/opd/rasearch.htm

Required disclosure under the new federal “No Surprises Act.” Although effective January 1, 2022, it may take a while (a couple of months) before enough is known and disseminated about the interaction between mental health practice and the NSA in order for definitive advice to be given. In the meantime, in my opinion, practitioners should give at the outset of therapy (immediately for current patients) a written notice on their letterhead to each of their (a) uninsured self-pay patients and (b) out of network patients who are effectively self-pay, that is who intend not to submit claims to their insurers, with the following information on that notice (1) the patient’s name, diagnosis (TBD may suffice), and proposed type of treatment, e.g., individual psychotherapy (2) the fee per session, (3) the frequency of sessions, (4) the total estimated length of treatment and (5) the total estimated cost of treatment. It may be best to err on the side of lengthier estimates. Ranges may be acceptable. Estimates should be revised annually but new ones given to patients before exceeding the estimates, and especially before the total estimated cost is exceeded. Patients should be told, preferably in writing, that the fee per session is subject to change and that because of individual differences in responses to mental health treatment among patients, frequency and length of treatment, and hence the total estimated cost are really just educated guesses at a point in time, and might change significantly over the course of treatment. The current form recommended by CMS is at https://www.cms.gov/regulations-and-guidancelegislationpaperworkreductionactof1995pra-listing/cms-10791 The NASW has tried to adapt the form for psychotherapy practice, see http://www.socialworkblog.org/wp-content/uploads/Model-Good-Faith-Estimate.pdf

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFIC ASPECTS OF YOUR SITUATION.

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