State boards of medicine, psychology, nursing, and other health care disciplines are the first place to look for legal resources relevant to health care practice.
New York, for example, offers a wealth of legal and practice guidance on a website for psychologists, including citation to relevant health care laws regarding the practice of tele-health or online psychology.
Practice Guidelines can help a psychologist understand the basic rules prior to consulting with an experienced health care attorney who understands the laws and regulations relevant to psychologists, psychiatrists, licensed social workers, marriage and family therapists, licensed professional clinical counselors and other allied health providers (as well as non-licensed individuals offering health care services such as life coaching).
Telehealth (or telepractice) is also huge. New York provides some guidance:
"Telepractice" is providing service that is not "in person" and is facilitated through the use of technology. Such technology may include, but is not limited to, telephone, telefax, e-mail, internet, or videoconference. It is considered a mode of practice and the same standards that apply to all forms of practice in psychology would apply to telepractice.
Practice as a licensed professional in New York State, even through telepractice, requires the practitioner to be licensed or otherwise authorized to practice in New York. Telepractice, when used as a form of mental health practice, is subject to all practice and ethical considerations discussed in this document and in the law, rules and regulations governing licensed practice in New York State. If you are licensed in New York State and wish to provide services in another jurisdiction, you should determine the qualifications for practice and any requirements for licensure imposed by that jurisdiction.
You should consider the particular impact of telepractice on dimensions of mental health practice, including, but not limited to:
- awareness and assessment of non-verbal behavior by the patient;
- ensuring the privacy of patients and protection of confidential information through the transmission of information;
- relational and transferential issues;
- access issues such as distribution of computers and familiarity with technology;
- temporal factors such as simultaneous communication, time between responses, and formalized "sessions";
- provisions for emergencies; and
- development of technological proficiencies and on-line culture/language.
Insurance issues also often occupy the landscape of consultations with lawyers around health care legal issues. New York offers these guidelines:
Insurance Billing and Pitfalls
Advisory Notice: The following advisory is a general discussion of the issues that may arise when a licensee is faced with situations that may be construed as sexual harassment. The discussion is intended to alert practitioners to questions and concerns that they may want to consider with their legal counsel, and is not to be construed as a directive or other requirement to take any particular action. This Advisory cannot be used as the basis for a charge of professional misconduct. The statements are generally based upon statutory and regulatory provisions relating to the practice of psychology, but are not legal interpretations of any of these provisions. The citations to the provisions are included to add clarity to the discussion. Practitioners are advised that if they decide to pursue any course of action based upon this discussion, private counsel should be consulted since there may be legal issues beyond those directly inherent in the practice of psychology that should be considered.
Insurance billing, though seemingly uncomplicated and straightforward, may easily lead to disputes and/or allegations of misconduct. To avoid this, billing statements, insurance claims, and treatment reports should be simple, clear, direct, and accurate representations of the services provided, the fees charged for each service, and the nature of the patient’s/client’s evaluation and treatment.
- Psychologists would be wise to have the patient’s written authorization to release the information necessary to process an insurance claim or to complete a treatment report for pre-certification, although the patient could give a verbal consent. Verbal consents are difficult to prove when charged by a client with releasing confidential information.
- Psychologists should be aware of precisely what they are stating when signing any insurance form or report. They should be aware that what they are asked to state could and does vary dependent upon the insurance form or report. For example, a signature as provider on the insurance form may be a claim that the signatory directly provided the services him or herself.
- When billing for services provided by employees, psychologists should identify the provider by name and title or degree, if it is required on the form. The same is true when insurance forms ask who personally, or directly, provided the service.
- Discussing payment arrangements and insurance issues (including pre-certification) at the first meeting with the patient or client, or soon afterward, could help to avoid any possible misunderstandings and subsequent disputes: for example, co-payments, contract differences, among others.
- Attention to details and making certain that all information is provided when completing insurance forms and reports can help to avoid delays in payment and subsequent misunderstandings and disputes between the psychologist and the patient/client
- When a patient cancels or does not appear for a session, it is usually considered fraudulent to bill an insurance company for that session unless the insurer has provided for cancellations within the contract.
The good news is that government websites can and do provide helpful advice. However, these areas are complex, and legal issues get thornier if addressed in the aftermath of failure to seek experienced legal counsel at the outset.
As we say, "don’t roll the dice, get legal advice." Attend to telemedicine, insurance (reimbursement), and other health law advice at the outset, while designing and developing your business, from a skilled health care law attorney who understands online health businesses and legal questions affecting mental health care and other professionals.
Michael H. Cohen is an experienced business law and health care law attorney. He has taught health care law and policy at Harvard University and counseled many different kinds of practitioners and businesses, including:
- entrepreneurial start-up ventures in many different industries
- physicians (MD’s and DO’s)
- physician groups, hospitals, and clinical facilities
- integrative medicine centers
- professional health care educational institutions and associations
- registered nurses and advanced practice nurses
- clinical psychologists
- massage therapists
- homeopathic physicians and homeopaths
- naturopathic doctors and naturopaths
- energy healers, hypnotists, medical intuitives
- dietary supplement manufacturers and distributors
- cosmetics manufacturers
- entrepreneurs and start-ups
- wellness clinics
- bio-energy companies
- medical device inventors
- telemedicine enterprises
- many different businesses
As an attorney at the cutting edge of health care and business law, he represents enterprises whose leaders are conscious and committed to a better world. He provides legal and regulatory expertise to a multitude of businesses and corporations, as well as to attorneys and law firms involved in various health care legal issues including:
- fee-splitting, Stark and anti-kickback
- corporate practice of medicine (including New York, California, Massachusetts, D.C.)
- medical board disciplinary proceedings and other professional discipline
- negligence, informed consent, and medical malpractice liability (negligence)
- HIPAA and patient privacy and confidentiality issues
- Medicare (including opting out vs. participation vs. non-participation)
- professional liability insurance and insurance (billing and coding) issues
- telemedicine, tele-psychiatry and telehealth
- litigation (plaintiff’s counsel and defense) and negotiation
- other legal and regulatory compliance issues.
To speak with a lawyer about health care law issues pertaining to complementary and alternative medicine, or to consult a business lawyer about laws and legal issues for entrepreneurs and new enterprises that are seeking legal advice, contact attorney Michael H. Cohen today.