HEALTH LAW UPDATE Winter 2002 – 2003

Welcome to new members of our legal plan!

HIPAA: A few months to catch your breath. HIPAA has two complete sets of standards, the Electronic Transaction Standards and the Privacy Standards. (Another set of standards, Security Standards, are not yet completed.) Some healthcare professionals have recently filed for an extension of compliance with the Electronic Transaction Standards to October 16, 2003. Those who haven’t filed for an extension and who transmit health information in electronic form must be in compliance now with the Electronic Transactions Standards. Those who have filed for an extension have until April 14, 2003 to decide whether the Electronic Transactions Standards actually apply to them, i.e., whether they will transmit any health information electronically, and then have until October 16, 2003 to comply if they decide the standards will apply to them.

Regardless, all health care professionals are required to comply with the Privacy Standards beginning on April 14, 2003. I am recommending that health care clients watch relevant websites for publication of forms that will ensure compliance with the Privacy Standards in New York State, for psychologists and other non-medical mental health professionals at www.apait.org/resources/hipaa, for psychiatrists at www.psych.org/pub_pol_adv/hipaa and for physicians at www.mssny.org (HIPAA Regulations Section.)

Please keep in mind that for some time to come, the focus of regulatory authorities will be on helping health care professionals understand and implement these new regulations, and not on finding and punishing those who are non-compliant.

Definition of Medicare “Incident to” Services Relaxed (A bit): Medicare rules regarding “incident to” services and billing were recently relaxed. From now on, the employment relationship between the supervising doctor and the auxiliary personnel will be disregarded; most pertinently, auxiliary personnel providing services may now be independent contractors and need not be (W-2) employees. Other restrictions remain in place. The relaxation should provide doctors (physicians and psychologists) whose practices include significant numbers of Medicare patients greater opportunity to enhance revenue by leveraging their time without the encumbrance of employment relationships.

Avoiding Abandonment of Psychotherapy Patients: A New York State professional regulation governing all health professions prohibits, “abandoning… a patient… under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care…” Almost always, however, if a psychotherapist wishes to end treatment with a patient for any reason, it can be done. But it must be done carefully, and in a manner that minimizes any risk of harm to a patient.

The legal principle of freedom of association applies to business and professional relationships, in that it is a basic right that the decision to enter into and continue relationships should be voluntary and mutual. For therapists, however, this freedom is qualified by the fiduciary relationship, which adds a requirement that the termination be in good faith, i.e., be non-discriminatory, and not constitute abandonment.

Therapists end therapy before treatment has been completed for many reasons, perhaps most often when they no longer feel competent to treat a particular patient, and when patients become unable to pay. Other examples are when therapists move or retire, when patients seem unable to benefit from the therapist’s approach or threaten the therapist, or when a therapist finds that a patient arouses unmanageable feelings.

■If at all possible, try not to terminate with a patient while he or she is in crisis.

■Discuss with the patient your decision to end therapy and the reasons for it, being careful not to needlessly give information that might harm the patient.
■If the patient is in need of continued therapy, offer referrals to other practitioners. The referrals should take into account your reasons for ending therapy and the patient’s circumstances, i.e., including clinical and financial considerations.

■Allow a period of continued therapy with you following this discussion. Legally, the time period must be one that allows the patient to act on the referrals you provide and to initiate therapy with another therapist, (N.B. You must give patients enough time to act, but cannot force them to do so, and need not wait for them to do so if they unreasonably delay.) Ethically, the period should suffice to allow the patient time to express, even if not to resolve, concerns and feelings about the termination with you.

■Once you have taken all circumstances into account, set a definite ending date.

■Tell the patient that you will confer with and send records to any subsequent therapist, at the patients request and with appropriate releases. In essence, you are making clear that you will try to facilitate in any possible way the transfer of the patient’s care.

■Send a certified letter, return receipt requested, to the patient, following your initial discussion of termination and confirming all of the above.

■It’s always wise to consult with a colleague about a decision to terminate with a patient, and in complicated cases to consult with a mental health attorney as well. Therapist-initiated terminations can be the occasion for complaints by patient to professional and licensing bodies.

Our AV rating: Bruce was recently honored with the prestigious “AV” rating by Martindale-Hubbell. The “AV” rating identifies an attorney with “very high to preeminent” legal ability, and is a reflection of expertise, experience, integrity and overall professional excellence. The “AV” rating is the highest rating awarded by Martindale-Hubbell and indicates that the individual has demonstrated the highest professional and ethical standards. See our website for more information regarding attorney ratings by Martindale-Hubbell.

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

𝄞 HAPPY THANKSGIVING, CHANUKAH, CHRISTMAS AND NEW YEAR TO ALL! 𝄞

WE WISH YOU PEACE AND PROSPERITY AND THANK
YOU FOR YOUR TRUST AND BUSINESS THIS PAST YEAR!

©Bruce V. Hillowe, 2002