HEALTH LAW UPDATE Summer 2003

The HIPAA Privacy Rule: most common (simply answered) remaining questions.
1. “I don’t bill or communicate electronically and don’t think I will but I might. Can I wait until I am about to bill electronically to become HIPAA compliant?” Yes.
2. “Are there any reasons to wait to comply?” Yes. If you are HIPAA compliant, you subject yourself to the jurisdiction and oversight of a federal agency that otherwise would have no interest in your practice. Compliance adds paperwork to a practice.
3. “Are there reasons to become HIPAA compliant if I have a choice whether to be or not?” Yes. At the end of this year, electronic billing will become the norm. Although most insurers, including Medicare, will allow small practices (under 10 employees) to bill by paper, they will impose a surcharge for paper billing. Electronic billing is easier and results in faster payment.
4. “I only bill electronically for one patient. Must I be HIPAA compliant for all my patients or just that one?” All. Your office is either HIPAA compliant or not for all patients.
5. “Must I use informed consent forms under HIPAA?” No. Some compliance programs include informed consent forms, but their use is optional. The consent requirement was eliminated from the final version of the regulation. If you do use informed consent documents, however, they must incorporate references to HIPAA.
6. “What treatment records does HIPAA require that I maintain.” None. HIPAA deals only with privacy of and access to records. There are an assortment of ethical principles, State laws and regulations, licensing board guidelines, and payor requirements that compel record-keeping. And certain provisions of HIPAA do have implications for record-keeping, for example, distinguishing between “progress notes” and “psychotherapy (or process) notes.”
7. “Can I really be sent to prison or financially ruined if I don’t comply properly?” No. The Office of Civil Rights that enforces HIPAA has given every indication that, especially for small practices, they will take an educational approach, including an amicable resolution of complaints, for the foreseeable future.

Our HIPAA Handbook and two new ancillary packages: We continue to offer our firm’s HIPAA Handbook for sale at the price of $50 + $6 S/H. The pre-payment requirement was eliminated; it is shipped with an invoice. We have two ancillary packages now for sale: “Informed Consent Forms for HIPAA Compliant Offices in New York State” and “Psychotherapy Record-Keeping Forms for New York State, HIPAA Compatible.” These packages are $25 each and can be ordered by phone and without prepayment.

Kieran’s law and Kendra’s law. The similar names of these two recently-passed New York laws sometimes cause confusion. Kieran was an infant who was killed by his nanny. A law (Executive Law §837-n) whose name is in his memory was enacted that allows parents to gain access to the criminal records of prospective nannies (with the nanny’s consent). Kendra was a young woman pushed into a subway train and killed by an unmedicated seriously mentally ill person. A law (Mental Hygiene Law §9.60) named for her was passed that provides for “outpatient commitment,” that is, procedures for making it a condition by court order that a seriously mentally ill person who may present a danger to self or others either take medication on a supervised outpatient basis, or, alternatively, if non-compliant, be involuntarily hospitalized.

A primer for mental health professionals on statutes of limitations. Statutes of Limitation are created by state legislatures to establish deadlines for legal actions. Their rationale is that after a certain length of time it would be unfair to defendants to allow them to be sued because the possibility of fictitious suits presumably increases with time, and because with time, evidence that might exculpate them becomes harder to obtain. Also, it is believed that everyone has a right, after a certain period of time has elapsed after a transaction has occurred, to the peace of mind that comes with knowing there will be no legal repercussions of the prior action. Actions that cannot be commenced because the statutory period has elapsed are referred to by lawyers as “time-barred.”

The Statute of Limitations in New York State on malpractice actions against non-medical professionals, including psychologists, social workers, psychiatric nurses, and counselors is 3 years. For actions against physicians including psychiatrists, the time-limitation is 2½ years. (The above limitations and this discussion apply only to malpractice actions in civil courts; there is no time bar on complaints to State licensing boards in New York.)

The Statute of Limitations on intentional torts, including assault, battery, false imprisonment, defamation and invasion of privacy, all of which are sometimes alleged against therapists in conjunction with allegations of
malpractice, is one year. Sexual impropriety would appear to be an intentional act on the part of therapists akin to an
assault, but most of the time plaintiffs’ attorneys, both to avoid the shorter Statute of Limitations and to obtain insurance
coverage for the claim (malpractice insurance covers negligence only, not intentional misconduct), will allege malpractice, i.e., that the sexual impropriety was a negligent mishandling of the transference and counter-transference.

There are two statutory exceptions in New York that extend time for plaintiffs to bring suit that are relevant to psychotherapists. The first is for minors, who, in legal parlance are termed “infants.” They may bring actions against non-medical therapists for up to 3 years (and against physicians for up to 2½ years) after they reach the age of 18 or for up to 10 years after the malpractice occurred, whichever is shorter.

The other statutory exception is for “insanity,” another archaic legal expression. Persons are “insane” under this law if they have an emotional or mental illness which impairs their overall ability to function in society. Such “insane” persons may bring actions against non-medical therapists for up to three years (2½ years for physicians) after their disability ends or for up to 10 years after the malpractice occurred, whichever is shorter. One plaintiff tried to use this exception based on a diagnosis of post-traumatic stress disorder; despite the disorder, however, he had attended college, worked and managed his own affairs. New York’s highest court denied his request.

There is another statute which sometimes effectively shortens the Statute of Limitations when defendants are public hospitals or employees of one. In such cases, plaintiffs must notify the hospital and its employees within 90 days after the malpractice occurs of a potential claim, the nature of the allegations, and the possible damages. If they timely file this Notice of Claim, however, the plaintiffs still have the statutorily allowed amount of time (2½ or 3 years) to actually begin the lawsuit in a court. If they don’t file the notice on time, a court may excuse the failure if there is a good reason for it and the defendants won’t be harmed by the exception; absent such findings, the action will be barred.

New York State law does not contain “time of discovery” exceptions to the Statutes of Limitation that most other states have, at least not exceptions that are relevant to actions against psychotherapists. Thus in New York, patients who claim to have had repressed memories of misconduct by a therapist, to have not known that a therapist’s actions constituted misconduct or to not have known that they were harmed by a therapist’s misconduct must begin any lawsuits within the time periods set by the Statutes of Limitation, regardless. Proponents of such exceptions claim that patients who have been sexually exploited by therapists (and also by other fiduciaries such as teachers or clergy) often are unable to bring suits in compliance with statutes of limitation, and should be granted exceptions so that the statutes begin to run only after the victims have “discovered” the misconduct or harm.

There is another statute New York plaintiffs can use to extend the Statute of Limitations, based on principles of “equity” or fairness. To successfully plead this case, a plaintiff must prove that the defendant “conducted himself in such an overt manner, after his wrongdoing, as to cause the plaintiff to delay commencement of her action or otherwise prevent her from doing so.” (Under common law this is called “equitable estoppel.”) This doctrine will not apply, however, if the plaintiff had timely knowledge of the wrongdoing sufficient to place her under a duty to inquire and ascertain facts relevant to the claim prior to the expiration of the Statute of Limitations. Equitable estoppel was successfully used by one plaintiff who allegedly entered into a sexual relationship with her psychiatrist. She sued him after the Statute of Limitations on medical malpractice had passed. The patient argued, and the court agreed, that because her psychiatrist had allegedly falsely advised her that her romantic feelings toward him were not based on transference, he should be “estopped” from using the Statute of Limitations as a defense.

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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