HEALTH LAW UPDATE Spring 2003

HIPAA: The Privacy Rule is here, and so is our firm’s compliance manual! Almost all health care professionals are required to comply with the Privacy Standards beginning on April 14, 2003. Excepted are those who: do not and do not intend to, bill third-party payors, i.e., who bill only patients directly; do not use billing companies; and do not use electronic means (fax or email) to convey patient information to others. All other practitioners must have on April 14, a HIPAA privacy policy manual with compliant office procedures detailed in it, have a notice of privacy policy for patients to review and sign, be using HIPAA compliant authorization forms, etc. The Privacy Standards set a “floor,” so what actually goes into effect on the 14th is a combination of HIPAA as a new minimum level of protection for consumers, and State law where it provides greater protection and thus “preempts” HIPAA. New York State regulators have recently completed and published their first “preemption analysis.”

Many professional associations and private consulting groups are selling HIPAA compliance programs. HIPAA compliance seminars abound. Most seem to me to be lacking in coordination of New York State law and the federal law, which I guess should be expected since there are 50 states, and it takes, in my opinion, an experienced health lawyer or State regulator considerable time and effort to even attempt an analysis.

Nonetheless we have attempted it, and have a comprehensive manual with what we believe are current HIPAA/New York State instructions and forms. The manual is a complete one for healthcare professionals in solo and small office practices, and can be used as a basis for those in agencies and larger or different types of practices. The forms can be copied for office use. The manual is available to clients only for $50, payable in advance. The cost is considerably less than for other such manuals I have seen, in keeping with our firm’s philosophy of building lasting relationships with clients. We accept VISA or MasterCard if you wish to order a manual by phone, or you may send a check with a note requesting the HIPAA manual. Please feel free to call with any questions.

I have received a number of calls from clients alarmed about implementation of HIPAA or else about a supposed diminution of patient’s rights that it represents. Timely good faith efforts to comply, even if imperfect, are required; regulators are not going to focus on penalties now (certainly not for solos and small practices, anyway) nor should you. And HIPAA will not result in any lessening of already existing patients’ rights, including privacy rights (see above for explanation of preemption.)

New professions approved; problems for current professions: After years, in fact decades, of debate, New York finally passed laws in December that will effectively prohibit the unlicenced practice of psychotherapy. As part of this package of laws, four new masters-level mental health professions were created: creative arts therapist, marriage and family therapist, mental health counselor, and psychoanalyst. These new professions will first be licensed in January 2005. I think that the creation of these new professions will probably eventually exert downward competitive pressure on the price of psychotherapy services.

More immediately problematic for certain currently licensed psychologists is that part of the package was a licensing law for psychologists that will prohibit any practice of mental health counseling or testing by unlicenced persons, effective September 2003. That means that those of you who hire unlicenced persons as assistants must discontinue this practice. There may be an exception made for formal training programs.

A second problem created by the new package of laws involves social workers in PLLC’s. Previously, social workers were permitted to form PLLC’s (professional limited liability companies) with other licensed professionals except physicians. Thus there are multi-disciplinary PLLC’s practicing the professions of social work, psychology, nurse practitioner-psychiatry, occupational therapy and other professions. Under the new laws, social workers may only affiliate in PLLC’s with other social workers, thus eliminating for social workers the possibility of ownership of multi-disciplinary practices. I can see no rationale for social workers having voluntarily given up this privilege, so maybe it’s just an oversight in the law that will be corrected by amendment. It is likely that multi-disciplinary CSW PLLC’s already in existence will be “grandfathered in,” i.e., allowed to continue to operate.

Supervision and consultation: The legal difference: The training of psychotherapists typically includes mentoring that is usually characterized as “supervision.” When a therapist who is independently licensed is seeking this mentoring, the relationship is more accurately characterized as “consultation” most of the time. There are important legal distinctions between supervision and consultation, especially in the area of legal liability. A consultative relationship poses less risk of legal liability to the consultant than a supervisory relationship.

A consultant who simply offers advice based upon information provided by a consulting colleague usually will
not be subject to legal liability for the treatment of the colleague’s patient. The basis for the consultant’s lack of liability is his or her lack of control. The consulting clinician remains in control and retains the option to either follow the consultant’s advice or to disregard it. A consultant’s role is considered educational, and primarily for the benefit of the consulting colleague. It is only secondarily for the benefit of the patient. A consultant does not bill the patient and usually has no direct contact with the patient.

On the other hand, a supervisor often does assume responsibility for the evaluation, diagnosis, and treatment of patients. A supervisor undertakes a much greater role than a consultant in the treatment and progress of patients. If a supervisor and supervisee both expect the supervisee to rely on the supervisor’s specific recommendations regarding evaluation and treatment, then the supervisor may be liable to the patient, even if the supervisor has no direct contact with the patient. A supervisee ordinarily is not free to ignore the supervisor’s advice. Due to the expanded nature of the supervisor’s responsibilities, the law may view him or her as jointly liable for services provided to the patient.

One New York court offered guidelines to distinguish consultative from supervisory roles. A consultant: does not know the patient; does not examine the patient; does not speak with the patient; is not referred to the patient for in-person consultation or treatment by the consulting colleague; gives opinions only and directly to the consulting colleague; and gives recommendations for the consulting colleague to follow or not as the consulting colleague decides. (Gilinsky v. Indelicato, 894 F.Supp. 86, 92 , EDNY 1995)

Thus, between therapists, both of whom are licensed, most of what is called “supervision” is in fact, by legal definition, consultation. So:

■For consultants, it’s legally wise to label, and bill for, your services as consultations if that is what they truly are.
■But here’s some conflicting advice for supervisees. If you are relatively inexperienced, it may be to your advantage, if your decisions are questioned in a legal proceeding, to present yourself as one who was following the directions of a supervisor. Your responsibility will be diluted and your supervisor may share liability and damages, if any are found.
■If you are a psychotherapist who hires other therapists as independent contractors, do not provide the independent contractor with supervision. (Consultation is OK.) Presumably, you want the independent contractor to be solely responsible and liable for his or her actions; don’t contradict that intention by supervising him or her.

Consultants should bear in mind that in acting and labeling themselves as such, although they may avoid liability to patients for the negligence of the consulting colleague, it is possible (albeit unlikely) that they may still be liable to the consulting colleague for negligence in consulting. Lawsuits by consulting colleagues against consultants are quite unusual, and the standard of care of consultants to consulting colleagues is different from and less than that involved in professional-patient relationships. Some courts have found that a consultant’s duty to a consulting colleague is to advise and make appropriate recommendations based solely on information provided by the consulting colleague, and not based on the patient’s actual condition or needs. Some courts have refused to find that medical consultants have any duty at all to their consulting colleagues. Still, it’s probably wise to avoid what are sometimes called “curbside consultations” with colleagues, informal consults for which liability is unlikely, but which can result in involvement in a lawsuit brought against the colleague by a patient.

PLEASE KEEP IN MIND THAT INFORMATION IN THE NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH US OR ANOTHER ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING YOUR CIRCUMSTANCES.

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