HEALTH LAW SUPPLEMENT Winter 2023-24

Restrictive covenants remain legal (and potentially problematic) in New York State. This month, Governor Hochul vetoed a bill that had passed the State Assembly and Senate that would have prohibited non-compete agreements, a type of restrictive covenant, in New York State. The governor believed that businesses might leave the State and relocate to one of the majority of other states that allow such covenants if the prohibition became law in New York, i.e., such prohibitions are considered “anti-business.” Thus the law in the State continues to be that restrictive covenants in contracts between employers and employees will be enforced by courts if the employer can show that: (1) the restriction is no greater than what is required to protect a legitimate interest of the employer (such interests are usually related to the employee having had access to trade secrets of the employer), (2) the restriction does not create an undue hardship for the employee, and (3) the restriction does not harm the public. Although they continue to be legal, certain restrictive covenants are potentially problematic for psychotherapy practices.
The first of the two types of restrictive covenants is a non-compete agreement. Non-compete agreements are of two kinds: geographic and temporal restrictions on where an ex-employee may be otherwise employed or practice; and a bar on ex-employees continuing to treat in their own or other practices patients introduced to them by their former employers. A typical non-compete of the first type would prohibit an employee from working in or opening an office of their own within a mile of their employer’s office. Of the second type would be a prohibition for a period of perhaps a year on an ex-employee treating any patient whom they previously had treated at their employer’s practice. Temporal geographic restrictions may be the easiest to prove and enforce but most recently they have become superannuated because of the prevalence of virtual psychotherapy. Whether a psychotherapy practice can absolutely prohibit, even for a limited period of time, an ex-employee from treating patients treated by the ex-employee at the practice of the employer is an open and I believe undecided issue in New York State. The as yet unlitigated issue is whether such a prohibition is void because it harms the public. Some states have held that it does, e.g., in New Jersey it is considered unprofessional conduct for a licensed psychotherapist to enter into an agreement that interferes with or restricts a client’s ability to see the client’s preferred therapist, N.J.A.C. 13:42-10.16.
The second type of restrictive covenant is a non-solicitation agreement. These also are of two types: a prohibition on employees or ex-employees soliciting or asking other employees of the employer to leave the practice of the employer and join the employee at their practice or some other practice; and forbidding employees or ex-employees from asking patients whom they have treated at their employer’s practice to leave that practice and instead enter treatment with the employee at their own or another practice. Non-solicitation agreements are probably enforceable in psychotherapy practice in my opinion because they meet the above criteria and need not compromise patient care. Ethics codes seem to allow and in some cases favor such provisions: see the NASW Code of Ethics 3.06(a) 3.09(a) and 4.07(a), and the ACA Code of Ethics C.3.d. The latter reads,“Recruiting Through Employment: Counselors do not use their places of employment or institutional affiliation to recruit clients, supervisors, or consultees for their private practices.”
Notwithstanding the likely legality of prohibitions on the solicitation of patients, there are significant evidentiary problems for employers in proving that an ex-employee solicited patients to leave the employer’s practice at the invitation of the ex-employee rather than at the volition of the patient. To contact ex-patients to ask for such information risks accusations of a boundary violation or, if evidence is be presented in a legal forum, of a breach of confidentiality.

A new State law requires forensic custody evaluators to receive specialized training in domestic violence and abuse. Effective December 23, 2023, with the passage of Forensic Evaluator Training Law, Laws of 2023, chapter 23, A632, S860, mental health professionals who wish to be certified to conduct court ordered forensic custody evaluations must obtain special training regarding domestic violence and abuse. The law mandates that all forensic evaluators be licensed psychologists, psychiatrists, or social workers and requires evaluators to receive training from the New York State Office for the Prevention of Domestic Violence (OPDV) every two years concerning the dynamics of domestic violence. Currently, initial Certification requires 24 hours of training offered by the OPDV. See https://www.op.nysed.gov/sites/op/files/2023-10/fce-training-flyer-2023.pdf
The justification for the new law, stated in its preamble is that, “According to the Center for Judicial Excellence (CJE), a child advocacy not-for-profit organization that promotes judicial accountability and child safety, more than 700 children across the nation have been killed by a parent or parental-figure during circumstances involving divorce, separation, custody, visitation or child support since 2008. Additionally, CJE has found that at least ninety-eight children in forty states have been killed by a parent or parental-figure after a family court allowed unsupervised contact with the child after the court was informed beforehand about the parent’s or parental-figure’s violent history, mental illness, or risk of harming a child.”
The curriculum for the course is required by the law to include, “ A review of: relevant statutes; case law and psychological definitions of domestic violence; coercive control and child abuse; the dynamics and effects of domestic violence and child abuse, including but not limited to, emotional, financial, physical, technological and sexual abuse; the barriers and fears associated with reporting domestic violence and child abuse and why victims may not have documented evidence of abuse; tactics commonly used by one party to induce fear in another party or child, including verbal, emotional, psychological, and/or economic abuse, isolating techniques, coercive control, and monitoring of a partner’s location and activities; litigation abuse and demands for custody or joint custody in order to pressure the partner to return or punish the partner for leaving; trauma, particularly as it relates to sexual abuse and the risks posed to children and the long-term dangers and impacts imposed by the presence of adverse childhood experiences; the increased risk of escalating violence that occurs during child custody proceedings; and the danger of basing child custody decisions on claims that a child’s deficient or negative relationship with a parent is caused by the other parent.”
Knowledge of the above topics would presumably be helpful as well to the many non-forensic clinicians who treat parents or children involved in legal custody or visitation disputes, a significant portion of patients treated by psychotherapists in their general practices.

Further extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications. On October 10, 2023, the federal Drug Enforcement Administration and Department of Health and Human Services extended to December 31, 2024 the exception that allows for the precribing of controlled medications by telemedicine encounters even when the prescribing practitioner has not conducted an in-person evaluation of the patient. This decision was urged by organizations like the American Telemedicine Association and the American Hospital Association, who argued that requiring in-person visits would impede access to necessary care, especially for patients with opioid use disorders, whose numbers have grown during the pandemic.