HEALTH LAW SUPPLEMENT Winter 2022-23

Obtaining the new diagnostic privilege when it will become available (June 24, 2024) if you are already licensed and practicing as an LMHC, LMFT or LPsa in your own practice.. This issue seems to me the most critical for our current LMHC, LMFT and LPsa clients (referred to in this article as “practitioners”). The “grandparenting” provision for the diagnostic privilege is referred to as the “alterative pathway.” To use that pathway, current practitioners must first determine if their previous degree programs included 60 semester hours (some older programs required fewer semester hours for the degree) with 12 credits of clinical instruction. If not, then a return to a university-based supplemental educational program appears to be required.
Next, practitioners using the alternative pathway must determine if the clinical experience they have had so far includes three years of supervised experience in diagnosis and treatment planning. That experience may have been attained while the practitioner was working as a student intern, or as a limited permit holder or licensee working at a “facility or other supervised setting.” The latter includes work at a facility with a New York State operating certificate from one of the “O’s” (DOH, OMH, OASAS, OPWDD, etc) or at a private practice owned by an MD PhD, or LCSW (those are the license holders currently able to diagnose) with one hour per week supervision provided by a psychiatrist, psychologist or clinical social worker. If practitioners are currently lacking the necessary 3 years of supervised experience, they should now plan, sometime after June 24, 2022 and before June 24, 2027 when this “alternative pathway”expires, to work at a facility or practice of an MD, PhD or LCSW to obtain the necessary supervised experience.
In addition to the alternative pathway, there is a “standard pathway” that has the same educational requirement as the alternative pathway, but has an experience requirement that the applicant have 2000 hours of supervised direct client contact (rather than the three years of the alternative pathway0 prior to June 24, 2025. See New York Education Law 8401-A, and Rules of the Board of Regents, 8 NYCRR 79-9.4.
Of note with regard to both of the above pathways to the diagnostic privilege is that practitioners may not obtain supervised experience at their own practices. NYSED could have used the attainment of the “R” credential by LCSW’s as a template, whereby privately practicing LCSW’s without the credential may hire an outside supervisor to obtain the necessary supervision, but apparently chose not to do so for practitioners.

A possible relaxation of enforced standards for involuntary psychiatric hospitalization in New York (and possibly for other purposes). A less stringent standard was first enunciated in a memorandum (aka “guidance document”) dated February 18, 2022 of the New York State Office of Mental Health (OMH) entitled “Interpretative Guidance for the Involuntary and Custodial Transportation of Individuals for Emergency Assessments and for Emergency and Involuntary Inpatient Psychiatric Admissions.” The guidance document suggested that the current standard being enforced that limited the application of the Mental Hygiene Law’s (MHL) removal and admission provisions only to those “who present as imminently dangerous leaves vulnerable persons at risk in the community without an opportunity for assessment, care and treatment, and can also adversely affect public safety.”
The (OMH) then declared that it wished to “clarify”criteria for involuntary psychiatric admission to include individuals who are suspected of having a mental illness but would not be considered imminently dangerous. The document stated that a person with a mental illness who displays an inability to meet basic living needs might meet the involuntary admission standard for dangerousness to self even when there is no recent dangerous act. It further stated that “an inability to meet one’s need for food, clothing or shelter is sufficient to establish dangerousness to self for purposes of removal from the community for assessment and involuntary admission.”

New York City Mayor Eric Adams has apparently recently adopted this new or “clarified” standard in announcing a plan to have emergency responders take mentally ill persons in the City to hospitals against their will even if they do not appear to pose an active risk of danger to themselves or others, but only appear unable to meet their own basic needs by reason of their mental illness. This new interpretation of standards by both the State and City will likely be challenged in court, as lacking substantive due process requirements; after all, involuntary hospitalization is a deprivation of liberty.
Adoption of this new standard may have implications for certain reporting duties of private practitioners. SAFE Act reporting (reporting patients to criminal justice authorities under MHL 9.46 so that their access to firearms may be restricted) may now become more common if the standard as recently enunciated is actually enforced; the OMH has stated that the standard for SAFE Act reporting tracks that of the MHL standards for involuntary hospitalization, see https://nics.ny.gov/docs/guidance.pdf. And unauthorized disclosures to authorities, previously only legally advisable if a patient presented an imminent risk of danger to self or others, may now be advisable when patients appear unable to meet their basic needs even in the absence of any dangerousness.

Podcasts and other streaming media; risk management principles. An increasing number of clients ask about the risks of creating or participating in streaming social media. Usually it’s for the purpose of marketing their practices, but sometimes they’re selling some good or other service.
The first relevant legal issue is avoidance of allegations of malpractice. Such allegations can only be made if there exists a practitioner-patient relationship accompanied by a duty of care, a predicate to malpractice. Although patients cannot unilaterally create such a relationship, it’s best to disabuse listeners whenever it is possible that they might assume one. A disclaimer should explain that the practitioner is providing educational information and not advice to individuals. Further, if the practitioner is addressing individuals, statements to them should be general or educational in nature, and not specifically directed to a particular person. Thus, it would be better not to directly respond to a listener with advice starting with “you,” (e.g., “you might try a relaxation method to help with the anxiety you’re describing”), but rather with “persons with symptoms of anxiety are often helped by learning and practicing a method of relaxation.” If practitioners avoid giving advice to individuals, then even if incorrect or even harmful information is given, there would no malpractice due to the absence of a duty of care.
A second area of caution involves possible breaches of confidentiality. Practitioners often wish to educate using examples, i.e., case vignettes. Older legal and ethical standards assumed that there was no breach if no third party could identify a patient being described. More current standards suggest that a breach may be asserted even if patients discussed in the podcasts are unrecognizable to anyone except themselves. This it’s advisable not only to remove any identifying characteristics of patients in offering case examples, but also to change details (make up alternative facts) so that no patients can claim it was they to whom you referred (N.B. this may not be possible for certain information, for example it forecloses the use of any recordings of patients or of verbatim quotes of extended interchanges with them.) Breaches, more of privacy than of confidentiality, may also occur if participants are invited to disclose too much or too personal information about themselves. It’s best to avoid extended dialogues, and instead refer persons needing them to a private offline setting.
Finally, it is ethically necessary for practitioners to disclose any affiliation, compensation, sponsorship or remuneration of any sort that they receive for recommending or even just mentioning any goods or services during a podcast. The Federal Trade Commission (and also anti-kickback and other laws governing federal programs such as Medicare and Medicaid ) also requires disclosure of financial relationships whenever promotion of any product or service occurs.

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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