MENTAL HEALTH AND THE LAW IN PENNSYLVANIA

MENTAL HEALTH AND THE LAW IN PENNSYLVANIA
Altoona, PA June 25, 2009 Thomas E. Sweeney, Esquire Tsoules, Sweeney, Martin & Orr, LLC 29 Dowlin Forge Road Exton, PA Tel: Fax::

Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC
MENTAL HEALTH AND THE LAW IN PENNSYLVANIA – CONSENT TO MENTAL HEALTH TREATMENT AGENDA CONSENT TO TREATMENT BALANCING THE RIGHTS OF MINORS, PARENTS AND PROVIDERS: ACT 147 CONFIDENTIALITY OF MENTAL HEALTH RECORDS AND ACT 147 SPECIAL AREAS: CONFIDENTIALITY RESPONDING TO SUBPOENAS, CORUT ORDERS AND LAW ENFORCEMENT PERSONNEL AUTISM INSURANCE ACT LEGAL LIABILITIES Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SECTION I. CONSENT TO TREATMENT
Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT Battery: Intentional and wrongful physical contact with a person without his or her consent that entails some injury or offensive touching. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT “Every human being of adult years and sound mine has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (1914). Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT Classic Elements of Informed Consent The common law doctrine of informed consent requires that the following be explained to the patient: purpose of procedure or service; nature of procedure or service; risks reasonably to be expected; benefits reasonably to be expected; and alternative methods of treatment. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT PENNSYLVANIA: STATE BOARD OF PSYCHOLOGY
APA ETHICAL STANDARDS – SELECTED SECTIONS § 3.10 Informed Consent § 8.02 Informed Consent to Research § 8.03 Informed Consent for Recording Voices and Images in Research § 9.03 Informed Consent in Assessments §10.01 Informed Consent to Therapy Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INFORMED CONSENT APA Ethical Standards (3.10(a))
When psychologists conduct research/provide assessment, therapy, counseling, or consulting services, they obtain the informed consent of the individual using language that is reasonably understandable to that person except when conducting such activities without consent is mandated by law or governmental regulations or as otherwise provided in this Ethics Code. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INFORMED CONSENT APA Ethical Standards (3.10(b))
When patient is legally incapable, psychologist must: (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences/best interests, and (4) obtain appropriate permission from a legally authorized person. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INFORMED CONSENT APA Ethical Standards (3.10(c))
When services are court ordered, inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

IMFORMED CONSENT IN APA ETHICAL STANDARDS (9.03)
Assessments. Psychologists obtain informed consent for assessments, evaluations, or diagnostic services, as described in Standard 3.10, Informed Consent, except when Testing is mandated by law or governmental regulations; Informed consent is implied because testing is conducted as a routine educational, institutional, or organizational activity (e.g., when participants voluntarily agree to assessment when applying for a job); One purpose of the assessment, fees, involvement of third parties, and limits of confidentiality and sufficient opportunity for the client/patient to ask questions and receive answers Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INFORMED CONSENT TO THERAPY (§ 10.01)
Inform Client as early in the Therapeutic Relationship about: The nature and anticipated course of therapy Fees Involvement of 3rd parties Limits of confidentiality Provide sufficient opportunity for questions/answers Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT Informed Consent: Capacity
Patient who was medicated and disoriented signed forms for voluntary inpatient treatment. Patient alleges physician and administrator knew patient could not give informed consent. United States Supreme Court affirms that a “cause of action” under federal law (violation of due process rights) was stated. Zinerman v. Burch, 494 U.S. 113 (1990) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT WHOSE CONSENT IS NECESSARY?
Competent Adult. There is a strong legal presumption of a person’s competence to make informed decisions. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT Competence To Consent To Treatment
Deliberate About the Information Which Needs to be Considered in Reaching the Decision Decide to Accept or Reject a Proposed Plan of Treatment Understanding the Relevant Information Necessary to Reach a Decision Source: “Competence to Consent to Treatment as a Psychological Construct,” Allan Tepper and Amiram Elwork Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SUBSTITUTE DECISION MAKING
Incapacitated Person Persistent Vegetative State Advanced Directives for Healthcare (20 Pa. C.S.A. § 5421) Advanced Directives for Mental Healthcare (20 P.S. § 5801 et seq.) Guardianship Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT ADVANCED DIRECTIVES FOR MENTAL HEALTH CARE ACT – 20 Pa. C.S.A. § 5801 et seq. Purpose: Permit a competent person age 18 or older, or an emancipated minor to execute a document that outlines preferences regarding mental health treatment in the event that person in the future is incapacitated by mental illness. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT ADVANCED DIRECTIVES FOR MENTAL HEALTH CARE ACT – 20 Pa. C.S.A. § 5801 et seq. Advance Directives may take 3 forms: Declaration- contains express instructions to health care providers about details of treatment Mental Health Power of Attorney – directive that allows “agent” to make treatment decisions on individual’s behalf Combination of both Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT ADVANCED DIRECTIVES FOR MENTAL
HEALTH CARE ACT – 20 Pa. C.S.A. § 5801 et seq. Formalities: Signed, witnessed, dated by witnesses at least 18 years old Advance Directive valid for 2 years from the date of execution unless: It is revoked The individual creates a new directive The individual does not have capacity to make decisions at the time of expiration Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT ADVANCED DIRECTIVES FOR MENTAL HEALTH CARE ACT – 20 Pa. C.S.A. § 5801 et seq. When Advance Directive Becomes Operationalized: When presented by the individual to the attending physician – duty on patient to inform provider of its existence When the individual is deemed incapacitated When the conditions stated are met Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT ADVANCED DIRECTIVES FOR MENTAL HEALTH CARE ACT – 20 Pa. C.S.A. § 5801 et seq. Provider Responsibilities Determine incapacity (presume competent when Advance Directive executed absent involuntary commitment or adjudicated incompetent) Honor directive if consistent with standard of care or transfer While awaiting transfer, treat patient consistent with directive If unable to transfer, “may” discharge individual Copyright© Tsoules, Sweeney, Martin & Orr, LLC

REFUSAL OF TREATMENT Limitations State’s interest in preserving life Patient’s refusal constitutes a suicide attempt State’s interest in preserving the integrity of the medical profession Termination of pregnancy Copyright© Tsoules, Sweeney, Martin & Orr, LLC

RESTRAINTS/SECLUSION
Private Practices – without patient’s consent restraints constitute a battery Child Residential and Treatment Facilities – Pa. Code § DPW – 55 Pa. Code § 13.1 – applicable to facilities operated by Dept. (health centers, state hospitals,, institutions for mentally ill/retarded) (Continued) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

DPW – “The Use of Seclusion and Restraint in Mental Health Facilities and Programs” – OMHSH Bulletin applied to following mental health facilities and programs: Residential Treatment Facilities for Adults and Children; Adult Long Term structured Residence Programs; Crisis Residential Services; Crisis Mobile Services; Crisis Walk-in Services; Community Residential Rehabilitation Programs; Psychiatric Units in General Hospitals; Private Psychiatric Hospitals; Partial Hospitalization Programs; (Continued) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Psychiatric Outpatient Clinics; Behavioral Health Rehabilitation Service Programs; Family Based Mental Health Services; Intensive Case Management; Resource Coordination Programs; Community Treatment Teams; Vocational Rehabilitation Services; Social Rehabilitation Services; Housing Support Services; and Psychiatric Rehabilitation Programs. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SECTION II. INPATIENT MENTAL HEALTH TREATMENT
AGENDA Voluntary Inpatient Treatment Involuntary Inpatient Treatment Copyright© Tsoules, Sweeney, Martin & Orr, LLC

VOLUNTARY INPATIENT MHT
Definition: Inpatient Mental Health Treatment “Inpatient Treatment” shall include all treatment that requires full or part-time residence in a facility.” 50 P.S. § 7103 “Inpatient Treatment” means all mental health treatment that requires full-time or part-time residence in a facility that provides mental health treatment. Act 147: § 1.1(c) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Persons Who May Authorize Voluntary Inpatient Treatment. “A parent, guardian, or person standing in loco parentis to a child less than 14 years of age may subject such child to examination and treatment under this act, and in so doing shall be deemed to be acting for the child. ” (50 P.S. § 7201) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Persons Who May Authorize Voluntary Inpatient Treatment. Any person 14 years of age or over who believes that he is in need of treatment and substantially understands the nature of voluntary treatment may submit himself to examination and treatment under this act, provided that the decision to do so is made voluntarily. (50 P.S. §7201.) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

REGULATIONS. “Notice to Parents Regarding Voluntary Inpatient Treatment of Minors.” (55 Pa. Code § ) Notice is given by telephone, when possible. Delivery of DPW From MH-781. Failure to determine whereabouts of parents; director to take reasonable action, including notifying appropriate agencies. If parents object – director of facility arranges for hearing. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Persons Who May Authorize Voluntary Inpatient Treatment “Person Standing In Loco Parentis” refers to a person who puts himself in the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of "in loco parentis" embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties." Cardomone v. Elshoff, 659 A.2d 575 (Pa. Super. Ct. 1995) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

EXPLANATION AND CONSENT “Before a person is accepted for voluntary inpatient treatment, an explanation shall be made to him of such treatment, including the types of treatment…and any restraints or restrictions…, together with a statement of his rights under this act. ” (50 P.S. § 7203) EXPLANATION AND CONSENT. The consent shall include that the person: understands his treatment will involve inpatient status; is willing to be admitted to a designated facility for the purpose of such examination and treatment; consents to such admission voluntarily, without coercion or duress; and if applicable, that he has voluntarily agreed to remain in treatment for a specified period of no longer than 72 hours after having given written notice of his intent to withdraw from treatment. The consent shall be part of the person’s record (50 P.S. §7203) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Withdrawal of Consent A person in voluntary treatment may withdraw at any time by giving written notice unless…he agreed in writing at the time of admission that his release can be delayed…such period shall not exceed 72 hours. (50 P.S. § 7206) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INVOLUNTARY INPATIENT MHT
WHO IS SUBJECT TO INVOLUNTARY TREATMENT A person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment, discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or to himself. (50 P.S. § 7301) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

WHAT IS “CLEAR AND PRESENT DANGER” The person … would be unable, without care, supervision and the continued assistance of others, to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety, and that there is a reasonable probability that death, serious bodily injury or serious physical debilitation would ensue within 30 days unless adequate treatment were afforded under this act. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

WHAT IS “CLEAR AND PRESENT DANGER” The person has attempted suicide and there is the reasonable probability of suicide unless adequate treatment is afforded under this act (proof of threats and acts in furtherance of the threat to commit suicide demonstrate a clear and present danger). Copyright© Tsoules, Sweeney, Martin & Orr, LLC

WHAT IS “CLEAR AND PRESENT DANGER” The person has substantially mutilated himself or attempted to mutilate himself substantially and there is a reasonable probability of mutilation unless adequate treatment is afforded under this act. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INVOLUNTARY COMMITMENT § Involuntary Emergency Examination and Treatment authorized by a physician Not-to-Exceed 120 hours. §303 - Extended Involuntary Emergency Treatment certified by a judge or mental health officer – Not-to-Exceed 20 days §304 - Court-Ordered Involuntary Treatment Not-to-Exceed 90 days §305 - Additional periods of Court-Ordered Involuntary Treatment Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT MINORS
SUPREME COURT OF PENNSYLVANIA Commonwealth v. Nixon, 563 Pa. 425 (Pa. Super. Ct. 2000). Concurring opinion of Supreme Court Justice Cappy: “Under common law, a minor is deemed incompetent to provide informed consent…Until the age of majority, a minor’s parents make medical treatment decisions on his or her behalf.” “The Pennsylvania legislature, however, has rendered the authority of parents to speak for their minor child with respect to health care less than absolute in certain circumstances, by enacting several statutes that allow minors to speak for themselves.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

MINORS CONSENT ACT 35 P.S. § 10101 Individual Consent: “Any minor who is 18 years of age of older, or has graduated from high school, or has married, or has been pregnant, may give effective consent to medical, dental and health services for himself or herself, and the consent of no other person shall be necessary.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

MINOR’S CONSENT TO MEDICAL, DENTAL AND HEALTH SERVICES
35 P.S. § 10102 Consent for Children with Minor Parents. Any minor who has been married or has borne a child may give effective consent to medical, dental and health services for his or her child. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

35 P.S. § 10103 Pregnancy, Venereal Disease and Other Reportable Diseases. Any minor may give effective consent for medical and health services to determine the presence of or to treat pregnancy, and venereal disease and other diseases reportable under the act of April 23, 1956 (P.L. 1510), known as the “Disease Prevention and Control Law of 1955,” and the consent of no other person shall be necessary. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

35 P.S. § 10104 When Consent Unnecessary. Medical, dental and health services may be rendered to minors of any age without the consent of a parent or legal guardian when, in the physician’s judgment, an attempt to secure consent would result in delay of treatment which would increase the risk to the minor’s life or health. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

35 P.S. § 10105 Liability for Rendering Services. The consent of a minor who professes to be, but is not a minor whose consent alone is effective to medical, dental and health services shall be deemed effective without the consent of the minor’s parent or legal guardian, if the physician or other person relied in good faith upon the representations of the minor. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

OTHER MINOR CONSENT AREAS
Emancipation Substance Abuse Services (71 P.S. § ) Abortion Control Act (18 Pa. C.S.A. § 3201 et seq.) Pennsylvania does not have an emancipation statute. Each county has developed its own procedures for a minor to petition the court for a judicial decree of emancipation. See Berks County Children & Youth Services v. Rowan, 631 A.2d 615 (Pa. Super. 1993); Trosky v. Mann, 581 A.2d 177 (Pa. Super. Ct. 1990). Also: 16 P.S. § 2175 (Care of Dependents and Children). Consent: An adolescent is legally permitted to consent to medical care or counseling related to diagnosis and treatment of the use of a controlled or harmful substance, and the consent of a parent is not required. (71 P.S. § ) Minor’s Consent is valid as if minor achieved his majority However, an agency, physician or organization who provides drug abuse counseling may – but is not legally obligated to – inform parents or legal guardians of the adolescent’s need for or receipt of services (71 P.S. § ) P/LG may petition juvenile court for commitment of minor to involuntary drug and alcohol services for up to 45 days Clear and convincing evidence A pregnant woman under 18 years old cannot obtain an abortion unless she receives the informed written consent of one of her parents or guardians or the approval of a judge. Both options require that a woman wait a mandatory 24 hours after receiving information from a doctor or counselor before consenting to the abortion. Abortion Control Act: 18 Pa. C.S.A. § 3201 If the adolescent asks a judge’s permission, the judge holds a conference with the adolescent to determine whether she is mature. If the judge decides the adolescent is mature, the judge must permit the abortion. If the judge decides the adolescent is not mature, the judge must decide whether an abortion is in the adolescent’s best interests. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

MINORS CONSENT ACT Act 147 Amends the “Minors Consent to Medical, Dental and Other Health Services” (35 P.S. §1010 et seq.) (the “Minors Consent Act”) Nothing in Act 147 is intended to restrict the rights of a minor who satisfies the conditions of the Minors Consent Act. Act 147: 1.1(c) Effective January 22, 2005 Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: DEFINITIONS “Facility” means any mental health establishment, hospital, clinic, institution, center, day-care center, base service unit, community mental health center, or part thereof, that provides for the diagnosis, treatment, care or rehabilitation of mentally ill persons. Act 147: 1.1(d) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147 “Mental Health Treatment” means a course of treatment, including evaluation, diagnosis, therapy and rehabilitation designed and administered to alleviate an individual’s pain and distress and to maximize the probability of recovery from mental illness. The term also includes care and other services which supplement treatment and aid or promote recovery. Act 147: 1.1(d) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147 “Inpatient Treatment” means all mental health treatment that requires full-time or part-time residence in a facility that provides mental health treatment. Act 147: 1.1(d) What is “Outpatient Mental Health Treatment”? Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: CONSENT FOR OUTPATIENT TREATMENT
“Any minor who is fourteen years of age or older may consent on his or her own behalf to outpatient mental health examination and treatment, and the minor’s parent or legal guardian’s consent shall not be necessary.” Act 147: §1.1(a)(1) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

A parent (“P”) or legal guardian (“LG”) of a minor less than eighteen years of age may consent to voluntary outpatient mental health examination or treatment on behalf of the minor, and the minor's consent shall not be necessary. Act 147: §1.1(a)(2) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

“A minor may not abrogate consent provided by a P/LG on the minor's behalf, nor may a parent or legal guardian abrogate consent given by the minor on his or her own behalf.” Act 147: §1.1(a)(3) - “Abrogate” means to cancel, repeal or annul. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: OUTPATIENT TREATMENT
Issues/Topics Separate but Equal Consent Medications Non-MHT Services – P/LG Consent “In Loco Parentis” Medical Consent Act: 11 P.S. § 2511 Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: CONSENT FOR INPATIENT TREATMENT
“Parent/Legal Guardian (“P/LG”) of minor under 18 may consent to voluntary inpatient treatment pursuant to MHPA on the recommendation of a physician who has examined the minor. The minor's consent is not necessary.” Act 147: §1.1(b) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: INPATIENT TREATMENT
Act 147 does not restrict or alter: a minor’s rights in the Mental Health Procedures Act (“MHPA”) to consent to voluntary inpatient treatment at age 14 or older. Act 147: 1. § 1(b)(2) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Act 147 does not restrict or alter a P/LG’s right to object to minor’s (14+) consent to voluntary inpatient treatment under the MHPA. Act 147:1.1(b)(3) See 50 P.S. § 7204 (Notice to Parent) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

P/LG consent to inpatient treatment may be revoked; treatment will terminate unless minor 14 to 18 consents to continued inpatient treatment. Act 147: §1.1(b)(5) Why 18? Should be 17? CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Minor who has consented to inpatient treatment may revoke his/her consent; minor’s revocation of consent is effective unless P/LG of minor has provided for continued treatment. Why 18? Should be 17? See 35 P.S. §10101: “Any minor who is 18… may give effective consent…” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Facility Director shall: Provide minor (14-17 years of age) with an explanation of the nature of the treatment and minor’s rights; File a petition with the Court, if minor objects to treatment consented to by P/LG. Act 147: §1.1(b)(7)(8) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Court shall promptly: Appoint attorney for minor. Schedule hearing within 72 hours of the filing of the petition. Judge or mental health review officer determines whether voluntary mental health treatment is in the best interest of the minor. Act 147: §1.1(b)(8) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

For patient treatment to continue against minor’s wishes, the Court must find voluntary inpatient treatment necessary by clear and convincing evidence that: Diagnosed mental disorder; Disorder is treatment in the particular facility; or Least restrictive environment. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

• If Court orders minor to undergo treatment, minor shall receive services for up to 20 days. • Minor shall be discharged whenever: Attending physician determines that minor is no longer in need of treatment; Consent to treatment has been revoked; The end of the time period of the order; or Whichever comes first. Act 147: §1.1(b)(9) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Act 147: INPATIENT TREATMENT
• Court conducts a review hearing to determine whether to: release the minor; make a subsequent order for inpatient treatment not to exceed 60 days, subject to discharge whenever the attending physician determines the minor is no longer in need of treatment; consent (parental) is revoked under Paragraph 5; or Court may order 60-day period of treatment. Act 147: 1.1 (b)(9)(10) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Nothing in this subsection shall prevent a non- consenting parent who has legal custody rights of a minor child to object to “voluntary” inpatient services approved by consenting parent by filing a petition in Court; hearing to be held in 72 hours. Act 147: §1.1(b)(11) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Issues/Topics “Parental/LG Commitment” of minor 14 – 17 years of age Physician recommendation required. What type of physician? Right to object process created for “Parental Commitment Process” When is “petition” required to be filed? Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147 – INPATIENT TREATMENT
Issues/Topics • Act 147 Hearings Coordination With Local Court P/LG legal rights Utilization Review Retroactive Audits Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT SHARED CUSTODY
The term “shared custody” is defined as an order awarding shared legal or shared physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with physical access to both parents. The terms “shared custody” and “joint custody” are synonymous. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT TO TREATMENT SHARED LEGAL CUSTODY
In re Wesley J.K., 445 A.2d 1243 (Pa. Super. Ct. 1982) Hill v. Hill, 761 A.2d 1242 (Pa. Super. Ct. 2000) Senatore v. Senatore, 58 Pa. D. & C. 4th 564 (Pa D&C 2000) Andrews v. Andrews, 601 A.2d 352 (Pa. Super Ct. 1992) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

STATE BOARD OF PSYCHOLOGY
Grossman v. State Bd. of Psychology, 825 A.2d 748 (Pa. Commw. Ct. 2003). Grossman was reprimanded and fined $1,000 in civil penalties for having performed a custody evaluation on a child without the consent of both parents who share joint custody. Grossman met with the child even though the father expressly prohibited him from doing so. ( ) On appeal, Commonwealth Court affirmed the actions of the Board. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT ISSUES, AGENCIES AND FOSTER PARENTS
No regulation gives either private agencies or foster parents the authority to consent to medical examination/treatment. As general practice, agencies have parents/guardians sign release authorizing agency to obtain routine care; the agency in turn delegates this authority to foster parents. Non-routine treatment requires specific consent from the parent/guardian or court order. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT AND CLIENTS IN THE DEPENDENCY SYSTEM
Routine Treatment. Examples include: Well baby visits and child health examinations Immunizations Dental care Vision care Hearing care Treatment for ordinary injuries and illnesses Non-routine Treatment. Examples include: Nonemergency surgery Cosmetic surgery Experimental treatments Emergencies Physician does not need consent from parent/legal guardian to treat minor where physician determines that an attempt to secure consent would increase risk to the minor’s life or health. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT AND CLIENTS IN THE DELINQUENCY SYSTEM
Minor awaiting adjudication or post-adjudication in secure detention or secure care facility Routine Parent’s Prior General Written Consent OR Court Order Non-routine Parent’s Prior Written Consent To Each Instance of Treatment OR Emergency No Consent Needed Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT ISSUES AND THE DELINQUENCY COURT:
During pendency of a delinquency proceeding, delinquency court can order: (1) physical or mental examination of a minor; and/or (2) medical treatment of a minor who is suffering a serious illness that, in the opinion of a physician, requires prompt treatment 42 Pa.C.S. §. 6339 Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONSENT AND PROBATION OFFICERS
No regulation gives juvenile probation officers the authority to consent to medical examination/ treatment on behalf of the minor who they are monitoring Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SECTION III. CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS
1. GENERAL RULE: Obtain the Patient’s Authorization to Release Confidential Patient Information. 2. GENERAL RULE: Obtain a Court Order to Release Confidential Patient Information or to Testify at Trial. 3. GENERAL RULE: Error on Side of Caution. Document Cooperation and Confidentiality of Patient Information. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS
Constitutional Right to Privacy – Pennsylvania In re “B” 394 A.2d 419 (Pa. 1978) “We conclude that in Pennsylvania, an individual’s interest in preventing the disclosure of information revealed in the context of a psychotherapist-patient relationship has deeper roots than the doctor-patient privilege statute, and that the patient’s right to prevent disclosure of such information is constitutionally based.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Constitutional Right to Privacy – Pennsylvania In the Matter of T.R., 731 A.2d 1276 (Pa. 1999) “In holding that the mother should be compelled to undergo a psychiatric examination the results of which are to be released to the parties, Superior Court not only ignored the holding in re “B”, which we find indistinguishable from the present case, but also elevated the interests of the state beyond all reasonable limits. We conclude, as we did in re “B”, that there is no governmental interest sufficient to negate the mother’s assertion of her right of privacy.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INPATIENT PSYCHIATRIC SERVICES Confidentiality of Records (50 P.S. §7111) “All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except: Continued Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INPATIENT PSYCHIATRIC SERVICES Confidentiality of Records (Continued) (50 P.S. §7111) those engaged in providing treatment for the person; the county administrator, pursuant to Section 110; a court in the course of legal proceedings authorized by this act; and Pursuant to Federal rules, statutes and regulations governing of patient information where treatment is undertaken in a federal agency. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INPATIENT PSYCHIATRIC SERVICES Confidentiality of Records (Continued) (50 P.S. §7111) In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent.” Exceptions: Statistical collection of data as long as patient is not identified; court or county mental health officers may disclose to Pennsylvania State Policy relating to firearms. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INPATIENT PSYCHIATRIC SERVICES Case Law Interpreting the MHPA Commonwealth v. Moyer, 595 A.2d 1177 (Pa. Super. Cr.1991) Defendant was criminally convicted of statutory rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure, and corruption of minors. The Superior Court held that defendant’s inpatient mental health records were privileged under the MHPA and could not be used as evidence against defendant in criminal proceeding. “We note first that the ‘Mental Health Procedures Act’ is to be strictly construed.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INPATIENT PSYCHIATRIC SERVICES Case Law Interpreting the MHPA In the Interest of Frank Roy, 620 A.2d 1172 (Pa. Super. Ct. 1993) Heir petitioned for disclosure of decedent’s confidential mental health inpatient treatment records. Court denied request. Heir could not waive confidentiality with respect to decedent’s inpatient mental health records. Distinguish: Heir from Executor Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INPATIENT PSYCHIATRIC SERVICES Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456 (3rd Cir. 1996) Parents as conservators of estate of female patient at mental hospital who was sexually assaulted while at hospital brought action against hospital and sought disclosure of records relating to two patients who were alleged to have committed assault. Hospital was ordered by the District Court to produce any incident reports” created as a result of incident and to submit records of patients for in camera review, and parents moved court to hold hospital in contempt for failing to produce records. Hospital petitioned for writ of mandamus seeking to compel court to withdraw order. Records were absolutely privileged under Pennsylvania MHPA and did not come within exception to statute. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INPATIENT PSYCHIATRIC SERVICES Who has the Right to Release? Any competent individual over the age of 14 may authorize the release of his or her inpatient (i.e., residential) mental health records. In Christy v. Wordsworth-At-Shawnee, 749 A.2d 557 (Pa. Commw. Ct. 2000), a mental health patient brought suit against a treatment provider, fellow patient and others to recover for a sexual assault by a fellow patient. The parents authorized release of their child’s mental health records. The court held that the child who was over 14 was the only one who could authorize the release. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

DPW Regulations: (55 Pa. Code § ) Scope and Policy Nonconsensual Release of Information Patients Access to Records and Control Over Release of Records Consensual Release to Third Parties Release to Courts Departmental Access to Records Records Relating to Drug and Alcohol Abuse Child or Patient Abuse Release of Records Copyright© Tsoules, Sweeney, Martin & Orr, LLC

§ Patient Access to Records and Control Over Release of Records 14 years of age or older who understand nature of documents to be released A person chosen by client/patient If client/patient is deceased, client/patient’s executor or personal representative of estate Parent or Guardian if person is under 14 or incompetent Copyright© Tsoules, Sweeney, Martin & Orr, LLC

§ Patient Access to Records and Control Over Release of Records Access – does not mean a copy (See: HIPAA Duties) Denial of Access: substantial detriment or reveal confidential source Records from other Agencies become part of record; subject to control by client/patient Copyright© Tsoules, Sweeney, Martin & Orr, LLC

§ Release to Courts No release of records in response to a Subpoena or other Court discovery proceedings without patient consent or an additional court order Duty to Inform Court Inform client/patient’s attorney Defense counsel for Provider may review records; minimum necessary applies Employees are to be informed; violations include civil and criminal liability Copyright© Tsoules, Sweeney, Martin & Orr, LLC

IMPACT OF ACT 147 §1.2(A) Limited P/LG Rights to Release Minors (14+) Records §1.2(B) Limit on P/LG Rights to Release §1.2(C) P/LG Right to Information to Give Informed Consent §1.2(D) Minor (14+) Control of Mental Health Treatment Records §1.2 (E) Consent to Release Other Than Those Above Subject to MHPA Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: ADOLESCENT RIGHTS Consent to release of mental health records for all purposes and in all circumstances other than those provided for in this section shall be subject to the provisions of the “Mental Health Procedures Act,” and other applicable federal and state statutes and regulations. Act 147: 1.2(E) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: RELEASE OF RECORDS Except to the extent set forth in subsection 1.2(A), (B) or (C), the minor shall control the release of the minor's mental health treatment records and information to the extent allowed by law. Act 147: 1.2(D) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: RELEASE OF RECORDS When a minor has provided consent to outpatient mental health treatment under Section 1.1(a)(1), subject to subsection 1.2(A)(2) (records related to prior treatment consented to by minor), the minor shall control the records of treatment to the same extent as the minor would control the records of inpatient care or involuntary outpatient care under the “Mental Health Procedures Act” and its regulations. Act 147: 1.2(D) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: LIMITED RIGHTS OF P/LG When a parent or legal guardian (“P/LG”) has consented to treatment of a minor fourteen years of age or older under Section 1.1(a)(2) (Outpatient Treatment) or (b)(1) (Inpatient Treatment), the following shall apply to the release of the minor's records and information: Act 147: § 1.2 (A) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: LIMITED RIGHTS OF P/LG “The P/LG may consent to release of the minor's medical records and information, including records of prior mental health treatment for which the P/LG had provided consent, to the minor's current mental health care treatment provider.” Act 147: §1.2(A)(1) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: LIMITED RIGHTS OF P/LG If deemed pertinent by the minor's current mental health treatment provider, the release of information under this subsection may include a minor's mental health records and information from prior mental health treatment for which the minor had provided consent to treatment. Act 147: §1.2 (A)(2) CONTINUED Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: LIMITED RIGHTS OF P/LG “The P/LG may consent to the release of the minor's mental health records and information to the primary care provider if, in the judgment of the minor's current mental health treatment provider, such release would not be detrimental to the minor.” Act 147: §1.2(A)(3) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: LIMITED RIGHTS OFP/LG Release of mental health records and information under subsection (A) shall be limited to release directly from one provider of mental health treatment to another or from the provider of mental health treatment to the primary care provider. Act 147: §1.2(B) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ACT 147: LIMITED RIGHTS OF P/LG The P/LG who is providing consent to inpatient and outpatient mental health treatment of a minor (14+) shall have the right to: information necessary for providing consent; symptoms; conditions to be treated; medications; other treatments; risks and benefits; expected results. Act 147: §1.2(C) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SHARED LEGAL CUSTODY Access to Records and Information: In view of the public policy that each parent shares in the rights and responsibilities of the rearing “…each parent shall be provided access to all the medical, dental, religious or school records of the child, the residence address of the child and of the other parent and any other information that the Court deems necessary.” (23 Pa. C.S.A. § 5309) Joint Access After Act 147? Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONFIDENTIALITY OF RECORDS
v. PROFESSIONAL STANDARDS Rules of professional conduct Protect patients Founded on principles of ethics Statutes prevent improper disclosure of private information Not all disclosures protected – child abuse TESTIMONIAL PRIVILEGES Rules of evidence Protect patients Founded on individual’s right to prohibit disclosure Privileged communications are protected Privilege is not absolute – child abuse Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS Title 49 Part 1 Department of State Subpart A. Professional and Occupations Chapters 16 and 17 State Board of Medicine – Medical Doctors Chapter 21 State Board of Nursing Chapter 41 State Board of Psychology Chapters 47, 48 and 49 State Board of Social Workers, Marriage and Family Therapists and Professional Counselors – Licensure of Marriage and Family Therapists Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS State Board of Medicine – Medical Doctors §16.61 Unprofessional and Immoral Conduct (a) A physician who engages in unprofessional or immoral conduct is subject to disciplinary action under Section 41 of the Act (63 P.S. §422.41). Unprofessional conduct includes, but is not limited to, the following: (1) Revealing personally identifiable facts, obtained as the result of a physician-patient relationship, without the prior consent of the patient, except as authorized or required by statute. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS Standards of Practice – Psychiatrists The American Psychiatrist’s Association – Principles of Medical Ethics: “A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences within the constraints of the law. ” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS Chapter 21: Standards of Nursing Conduct “A registered nurse shall: Safeguard the patient’s dignity, the right to privacy and the confidentiality of patient information. This standard does not prohibit or affect reporting responsibilities under 23 Pa. C.S. Chapter 63 (relating to the Child Protective Services Law), the Older Adults Protective Services Act (35 P.S. §§ ) and other statutes which may mandate reporting this information.” (49 Pa. Code 21.18) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS Social Workers (63 P.S. §1911(a)) Grounds. The Board may refuse, suspend, revoke, limit or restrict a license or reprimand a licensee for: Being found guilty of immoral or unprofessional conduct. Unprofessional conduct shall include any departure from or failure to conform to the standards of acceptable and prevailing practice. In proceedings based on this paragraph, actual injury to the client need not be established. For example, the National Association of Social Workers (“NASW”) code of ethics could be used to establish the standards for acceptable and prevailing practice. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS Psychologists (49 Pa. Code Chapter 41) Principle Confidentiality “(a) Psychologists shall safeguard the confidentiality of information about an individual that has been obtained in the course of teaching, practice or investigation.” “Information may be revealed with the consent of the clients affected only after full disclosure to them and after their authorization.” “Psychologists shall exercise reasonable care to prevent their employees, associates and others whose services are utilized by them from disclosing or using information about the client.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS Chapter 41. Psychologists Principle 5. Confidentiality (Continued) A psychologist may reveal the following information about a client: (1) Duty to warn. (2) Information discussed for professional purposes. (3) Classroom/Teaching/Writing: must de-identify the client. (4) Limits of Confidentiality – only with written permission of a third person (“originator”) is a confidential communication about the client disclosed. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL AND VOCATIONAL STANDARDS Chapter 41. Psychologists Principle 5. Confidentiality (Continued) (b) A psychologist may reveal the following information about a client: (5) Explicit permission required to identify research subjects. (6) Maintains confidentiality in the preservation and ultimate disposition of records. (7) Special care to protect persons (minors) who are unable to consent. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TESTIMONIAL PRIVILEGES – FEDERAL LAW “The federal privilege, which clearly applies to psychiatrists and psychologists, also extends to confidential communication made to licensed social workers in the course of psychotherapy.” United States Supreme Court Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TESTIMONIAL PRIVILEGES – FEDERAL LAW “The reasons for recognizing the privilege for treatment by psychiatrists and psychologists apply with equal force to clinical social workers…” “Significant private interests support recognition of a ‘psychotherapist privilege’:” Effective psychotherapy depends upon an atmosphere of confidence and trust. The mere possibility of disclosure may impede successful treatment. The mental health of the Nation’s citizenry, no less than its physical health, is a public good of transcendent importance. The likely endentiary benefit is modest. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TESTIMONIAL PRIVILEGES – PENNSYLVANIA Physician-Patient – (42 Pa. C.S. §5944) Psychiatrist/Psychologist – (42 Pa. C.S. §5944) School Personnel – (42 Pa. C.S. §5945) Sexual Assault Counselors – (42 Pa. C.S. §5945.1) Spousal Communications to a Qualified Professional – (42 Pa. C.S. §5948) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TESTIMONIAL PRIVILEGES Confidential Communications to Psychiatrists or Licensed Psychologists “No psychiatrist or person who has been licensed…to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services on behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.” (42 Pa. C.S. § 5944) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TESTIMONIAL PRIVILEGE: PSYCHOLOGISTS (49 Pa. Code Chapter 41) Principle 5. Confidentiality “Psychologists may not, without the written consent of their clients or the client’s authorized legal representative, or the client’s guardian by order as a result of incompetence proceedings, be examined in a civil or criminal action as to information acquired in the course of their professional service on behalf of the client.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Rost v. State Bd. of Psychology 659 A. 2d 626 (Pa. Commw. Ct. 1995) “In the present case, Rost did not even attempt to obtain the consent of her client before releasing confidential information. Although S.P. was eventually found to have waived the psychologist- client privilege, this does not absolve Rost from her psychologist-client privilege, this does not absolve Rost from her ethical duty of confidentiality. Rost had a duty to either obtain written permission to release the records from S.P. or challenge the propriety of the subpoena before a judge. Rost did neither.” Continued Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Rost v. State Bd. of Psychology 659 A. 2d 626 (Pa. Commw. Ct. 1995) “Since the language of Ethical Principle 5 of the Board Regulations unambiguously prohibits this type of conduct, we must concur with the Board’s Conclusion that Rost violated…the Act. Additionally, we agree with the Board that Rost’s breach of her duty of confidentiality constitutes unprofessional conduct in violation of…the Act.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TESTIMONIAL PRIVILEGES: Sexual Assault Counselors (42 Pa. C.S. § ) TESTIMONIAL PRIVILEGES: Spousal Communications to Qualified Professionals (42 Pa. C.S.A. §5948) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Exceptions to Privilege Communication Restrictions Child Abuse (23 Pa. C.S.A. § 6311) Patient claim of personal injury due to malpractice/improper conduct of provider Motor Vehicle Laws – Impaired Drivers: 75 Pa. C.S.A. § 1517, 67 Pa. Code § 835 Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SECTION IV. SPECIAL ISSUES - CONFIDENTIALITY

SPECIAL ISSUES - CONFIDENTIALITY
AGENDA Special Situations Duty to Warn HIPAA Child Protective Services Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Duty to Warn – Psychologists Principle 5(b)(1) “This Code of Ethics does not prohibit a psychologist from taking reasonable measures to prevent harm when a client has expressed a serious threat or intent to kill or seriously injure an identified or readily identifiable person or group of people and when the psychologist determines that the client is likely to carry out the treat or intent. Reasonable measures may include directly advising the potential victim of the threat or intent of the client. Because these measures should not be taken without careful consideration of clients and their situation, consultation with other mental health professionals should be sought whenever there is time to do so to validate the clinical impression that the threat or intent of harm is likely to be carried out.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Duty to Warn – Mental Health Professionals Emerich v. Phila. Ctr. for Human Dev. 720 A.2d 1032 ( Pa. 1998) Administrator of the estate of the murder victim sues the Agency alleging negligence. The victim and patient (girlfriend and boyfriend) were receiving treatment from Agency. Patient suffered from a host of mental health conditions. Patient also had a history of violent propensities and often threatened victim. Victim terminates relationship. Patient is angry and in several therapy sessions threatens victim. Counselor advises victim not to return to old apartment. She does. Patient shoots her. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

DUTY TO WARN: Key Elements of Emerich Specific and Immediate Threat of Serious Bodily Injury that has been communicated to the Mental Health Professional. Threat is against specifically identified or readily identifiable victim. Mental Health Professional determines or should determine patient presents serious threat of violence to patient – Mental Health Professional owes Duty of Care to Warn. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CONFIDENTIALITY OF RECORDS HIPAA-Federal Confidentiality Regulations

PREEMPTION OF STATE LAW GENERAL RULE
State law will be preempted if a standard, requirement, or implementation specification of the Federal Privacy Regulations is contrary to a provision of State law. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

HIPAA APPLICABILITY General Rule: If a Covered Entity conducts with another covered entity (or within same entity), using electronic media, a transaction identified in rule, the transaction must be conducted as a standard transaction. Electronic Media Includes the Internet, extranets, leased lines, dial up lines, private networks, and transmission physically moved using magnetic tape, disk, or CD media. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TWO BASIC CONDITIONS FOR HIPAA COMPLIANCE
You meet the definition of a provider, plan or clearing house. You exchange (send/receive) information utilizing Standard Transactions. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Transaction means the transmission of information between two parties to carry out financial or administrative activities related to health care. It includes the following types of information transmissions 1. Health care claims or equivalent encounter information. 2. Health care payment and remittance advice. 3. Coordination of benefits. 4. Health care claim status. 5. Enrollment and disenrollment in a health plan. 6. Eligibility for a health plan. 7. Health plan premium payments. 8. Referral certification and authorization. 9. First report of injury. 10. Health claims attachments. 11. Other transactions that the Secretary may prescribe by regulation. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

HIPAA PRIVACY: GENERAL RULE
A Covered Entity may not use or disclose protected health information, except as otherwise permitted or required under the privacy regulations. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

AUTHORIZATION: PSYCHOTHERAPY NOTES
With a few exceptions, Covered Entities must obtain the individual’s specific authorization to use or disclose psychotherapy notes for most purposes, in other words, to carry out treatment, payment, or health care operations. Psychotherapy notes are given heightened protection because they are viewed as “unique types of protected health information that typically are not used or required for treatment, payment or health care operations other than by the mental health professional that created the notes.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PSYCHOTHERAPY NOTES DEFINED
"Notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record. Psychotherapy notes exclude medication prescription, monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date." Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PSYCHOTHERAPY NOTES -AUTHORIZATIONS
A Covered Entity must obtain an Authorization for any use or disclosure of psychotherapy notes except for: Use by the originator of the psychotherapy notes for treatment purposes; Use by the Covered Entity for its own training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling; or Use by the Covered Entity to defend itself in a legal action or other proceeding brought by the individual. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PSYCHOTHERAPY NOTES – AUTHORIZATIONS (cont.)
Finally, Covered Entities may use or disclose psychotherapy notes without an authorization when: Required for HIPAA enforcement purposes; Mandated by law; Needed for oversight of the health care provider who created the psychotherapy notes; Needed by a coroner or medical examiner; or Needed to avert a serious and imminent threat to health or safety. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PSYCHOTHERAPY NOTES AND MEDICARE AUDIT OF 90806
Medicare cannot require release of psychotherapy notes Provider must produce documentation of excluded information: start/stop time; diagnosis; symptoms; prognosis; progress to date Copyright© Tsoules, Sweeney, Martin & Orr, LLC

HIPAA PERSONAL REPRESENTATIVES - ADULTS AND MINORS
Rule: If under applicable law a person has authority to act on behalf of an individual who is an adult or an emancipated minor in making decisions related to health care, a covered entity must treat such person as a personal representative with respect to PHI. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

HIPAA PERSONAL REPRESENTATIVES – ADULTS AND MINORS
Exceptions to Rule: Minor consents to health care services and no other consent is required under law Minor may lawfully obtain health care service without consent of Personal Representative Personal Representative agrees to confidentiality agreement between CE and minor Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CHILD PROTECTIVE SERVICES
4 Categories of Child Abuse Non-accidental physical injury Neglect Sexual Abuse or exploitation Serious mental injury Non-accidental Physical Injury Any recent act or failure to act by a perpetrator which causes non-accidental serious physical injury to a child under 18 years of age: Causing a child severe pain or Significantly impairs a child’s physical functioning either temporarily or permanently Neglect Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child’s life or development or impairs the child’s functioning. Sexual Abuse or Exploitation The employment, use , persuasion, inducement, enticement or coercion of a child to engage in sexually explicit conduct The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in simulation of sexually explicit conduct for the purpose of producing visual depiction, including photographing, videotaping, computer depicting and filming. Any of the following offenses committed against a child: Rape Sexual assault Involuntary deviate sexual intercourse Aggravated indecent assault Molestation Incest Indecent exposure Prostitution Sexual abuse Sexual exploitation Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Serious Mental Injury A psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that: Renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child’s life or safety is threatened; Seriously interferes with a child’s ability to accomplish age-appropriate developmental and social tasks. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Child Abuse does not mean: Injuries that result solely from environmental factors that are beyond the control of the parent … such as inadequate housing, furnishings, income, clothing and medical care; Seriously held religious beliefs of the child’s parent, guardian or person responsible for the child’s welfare. The county agency shall closely monitor the child and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child’s life or long-term health. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Persons required to report suspected Child Abuse: A Persons who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator. (23 Pa. C.S.A. § 6311-(a)) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Persons required to report: Any licensed physician, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, day-care center worker or any other child-care or foster-care worker, mental health professional, peace officer or law enforcement official. § 6311(b) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Staff Members of Institutions: Staff members of institutions or agency who are mandated/ reporters are required to immediately notify the appropriate person in charge at the institution. Such person shall assume responsibility and legal obligation to report Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Persons permitted to report: In addition to those persons and officials required to report suspected child abuse, any person may make such a report if that person has reasonable cause to suspect that a child is an abuse child. § 6312 Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Privileged Communication Immunity from Liability Penalties for Failure to Report Privileged Communication Except with respect to confidential communications made to a member of the clergy, and to an attorney, the privileged communication between any professional person required to report and the patient shall not apply to situations involving child abuse and shall not constitute grounds for failure to report. Immunity from Liability A person, hospital, institution, school, facility, agency or agency employee that participates in good faith in the making of a report, whether required or not, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse, the taking of photographs or the removal or keeping of a child, and any official or employee of a county agency who refers a report of suspected abuse to law enforcement authorities or provides services under this chapter, shall have immunity from civil and criminal liability that might otherwise result by reason of those actions. Penalties for Failure to Report A person or official required to report a case of suspected child abuse or to make a referral to the appropriate authorities who willfully fails to do so commits a misdemeanor of the third degree for the first violation and a misdemeanor of the second degree for a second or subsequent violation. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SECTION V. RESPONDING TO SUBPOENAS, COURT ORDERS AND LAW ENFORCEMENT

RESPONDING TO SUBPOENAS
Definition Subpoena: A command to appear at a certain time/place to testify (deposition or trial) Subpoena duces tecum: Requires production of documents Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Types of Subpoenas PA Subpoenas For Attendance of a Party For Production of Documents Civil vs. Criminal At Trial or Deposition Administrative Agency Subpoenas Federal Civil Subpoena Office of Inspector General (OIG) Civil Investigating Demand HIPAA Subpoena (DOJ) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PENNSYLVANIA SUBPOENA
Issued by Prothonotary Served reasonably in advance of the date attendance required Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ADMINISTRATIVE AGENCY SUBPOENAS
Issued by professional board Result of a complaint alleging a violation of an act/regulation May compel attendance by a witness or production of documents at a hearing Copyright© Tsoules, Sweeney, Martin & Orr, LLC

FEDERAL CIVIL SUBPOENA
Federal court or a civil matter Production of records or testimony similar to state subpoena Must include name of court, title of action, action number Issued by court clerk or attorney Served within the district or within 100 miles of trial/deposition/hearing (Fed. R. Civ. P. 45) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

INSPECTOR GENERAL SUBPOENA
For the production of documents Signals: audits, civil/criminal investigations, i.e. health care fraud, social security fraud (5 U.S.C. App 3 § 6(a)(4)) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

CIVIL INVESTIGATORY DEMAND
Not a subpoena, but is used like one Produce documents, answer interrogatories, give oral testimony, or combination of above Only issued by the U.S. Attorney General’s offices Ex.: False Claims Act violations (31 U.S.C. § 3733) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

HIPAA SUBPOENAS Issued by the Department of Justice (DOJ) Administrative subpoena Production of documents, or to give testimony on the production and authentication of documents Range of 500 miles Issued for federal offenses relating to: Healthcare fraud Threats against the President (current, past, future) Sexual exploitation of children Attorney General Threats against person protected by secret service (18 U.S.C. § 3486) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Contesting a Subpoena Contact attorney issuing subpoena: To limit scope of subpoena Be excused from compliance Contact patient/patient’s attorney File Motion to Quash with Court (Con’t.) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Contesting a Subpoena Statutory Confidentiality Privileges DPW Regulations Professional Standards regarding confidentiality of protected health information Subpoena fails to comply with legal requirements Fails to provide assurance under HIPAA Copyright© Tsoules, Sweeney, Martin & Orr, LLC

§ Release to Courts No release of records in response to a Subpoena or other Court discovery proceedings without patient consent or an additional court order Duty to Inform Court Inform client/patient’s attorney Defense counsel for Provider may review records; minimum necessary applies Employees are to be informed; violations include civil and criminal liability Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Motion to Quash Filed by your Attorney with the Court Judge reviews prior to or at time of trial Prepare Memorandum of Law to outline: Unreasonable and oppressive Statutory privilege Professional standards Case law If production of documents, in camera review prior to disclosure Court grants motion, or Court orders you to testify/produce documents Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Protective Order To protect party from unreasonable annoyance, embarrassment, oppression or burden or expense include: Prohibiting Discovery/deposition Discovery shall be only on specified terms and conditions Discovery shall be only by a method of discovery other than that selected by the party seeking discovery That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters (Con’t.) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Protective Order That discovery be conducted with no one present except persons designated by the court That a deposition after being sealed be opened only by order of the court That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court Copyright© Tsoules, Sweeney, Martin & Orr, LLC

RESPONDING TO LAW ENFORCEMENT
Court Orders Issued by a Judge Court must have jurisdiction Duty to respond Can challenge: Overly broad, oppression Privileged (in camera review) Search warrant Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Search Warrant Requested by law enforcement agency Signed by a judge (Court order) Probable cause exists To search for and seize property that constitutes evidence of a crime, contraband or fruits of a crime Must specify date/time and specific items Immediate access to premises Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Search Warrants How to Respond Request to see and copy the search warrant Contact counsel immediately Verify it contains all necessary elements (date/time, scope, objects to be seized, reason for search Remain with officers during search Copy/record all items seized Request receipt from officers Copyright© Tsoules, Sweeney, Martin & Orr, LLC

DISCLOSURE TO LAW ENFORCEMENT - HIPAA
Pursuant to a HIPAA – compliant Authorization As required by law Court Order, Warrant, Subpoena, Grand Jury Subpoena Administrative Request Help Identify/locate suspect, fugitive, material witness, missing person Copyright© Tsoules, Sweeney, Martin & Orr, LLC

DISCLOSURES TO LAW ENFORCEMENT - HIPAA
Victims of a crime Decedents Crime committed on CE’s premises Crime in Emergencies Patient admits to committing a violent crime To avert threat to others National Security Purposes “Health Oversight Agency” Health, safety or healthcare of inmate Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SECTION VI.: ACT 62 THE AUTISM INSURANCE ACT

THE AUTISM INSURANCE ACT
Requires some private health insurance companies licensed in Pennsylvania to cover the cost of diagnostic assessment and treatment of autism spectrum disorder and services for children under the age of 21, up to $36,000 per year Effective on the health insurance plan’s renewal date on or after 7/1/09 (continued) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

THE AUTISM INSURANCE ACT
Requires the Pennsylvania Department of Public Welfare, DPW, to cover the cost of services for individuals who are enrolled in the Medical Assistance program and do not have private insurance coverage, or for individuals whose costs exceed $36,000 in one year; and Copyright© Tsoules, Sweeney, Martin & Orr, LLC

AUTISM SPECTRUM DISORDERS POLICY EXCLUSIONS
(e)(1) This section shall apply to any health insurance policy offered, issued or renewed on or after July 1, 2009, in this Commonwealth to groups of fifty-one (51) or more employees: Provided, that this section shall not include the following policies: (i) Accident only; (ii) Fixed indemnity; (iii) Limited benefit; (iv) Credit; (v) Dental; (continued) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

AUTISM SPECTRUM DISORDERS POLICY EXCLUSIONS
(vi) Vision; (vii) Specified disease; (viii) Medicare supplement; (ix) CHAMPUS (Civilian Health and Medical Program of the Uniformed Services) supplement; (x) Long-term care or disability income; (xi) Workers’ compensation; (xii) Automobile medical payment. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

AUTISM SPECTRUM DISORDERS COVERAGE
(7) “Health insurance policy” means any group health, sickness or accident policy, or subscriber contract or certificate offered, issued or renewed by an entity subject to one of the following: (i) This act (ii) The act of December 29, 1972, P.L. 1701, No. 364), known as the “health Maintenance Organization Act (iii) 40 Pa. C.S. Ch. 61 (relating to hospital plan corporations) or 63 (relating to professional health services plan corporations) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(3) “Autism spectrum disorders” means any of the pervasive developmental disorders defined by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), or its successor, including autistic disorder, Asperger’s disorder and pervasive developmental disorder not otherwise specified. ) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

WHAT DOES THE AUTISM INSURANCE ACT COVER?
Diagnostic assessment and treatment of autism spectrum disorders, which include: Prescription drugs and blood level tests Services of a psychiatrist and/or psychologist (direct or consultation) Applied behavioral analysis; and Other rehabilitative care and therapies, such as speech and language pathologist, occupational and physical therapists Copyright© Tsoules, Sweeney, Martin & Orr, LLC

TREATMENT REQUIREMENTS
Must be for an autism spectrum disorder; Must be medically necessary; Must be identified in a treatment plan; Must be prescribed, ordered or provided by a licensed physician, licensed physician assistant, licensed psychologist, licensed clinical social worker or certified registered nurse practitioner; and Must be provided by an autism service provider or a person, entity or group that works under the direction of an autism service provider. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(14) “Treatment of autism spectrum disorders” shall be identified in a treatment plan and shall include any of the following medically necessary pharmacy care, psychiatric care, psychological care, rehabilitative care and therapeutic care that is: (i) Prescribed, ordered or provided by a licensed physician, licensed physician assistant, licensed psychologist, licensed clinical social worker or certified registered nurse practitioner (ii) Provided by an autism service provider (iii) Provided by a person, entity or group that works under the direction of an autism service provider Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(15) “Treatment Plan” means a plan for the treatment of autism spectrum disorders developed by a licensed physician or licensed psychologist pursuant to a comprehensive evaluation or reevaluation performed in a manner consistent with the most recent clinical report or recommendations of the American academy of Pediatrics. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(12) “Rehabilitative care” means professional services and treatment, programs, including applied behavioral analysis, provided by an autism service provider to produce socially significant improvements in human behavior or to prevent loss of attained skill or function (13) “Therapeutic care” means services provided by speech language pathologists, occupational therapists or physical therapists Copyright© Tsoules, Sweeney, Martin & Orr, LLC

“Autism service provider” means any of the following: A person, entity or group providing treatment of autism spectrum disorders, pursuant to a treatment plan, that is licensed or certified in this Commonwealth. Any person, entity or group providing treatment of autism spectrum disorders, pursuant to a treatment plan, that is enrolled in the Commonwealth’s medical assistance program on or before the effective date of this section. (continued) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(4) “Behavior specialist” means an individual who designs, implements or evaluates a behavior modification intervention component of a treatment plan, including those based on applied behavioral analysis, to produce socially significant improvements in human behavior or to prevent loss of attained skill or function, through skill acquisition and the reduction of problematic behavior. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

AUTISM SPECTRUM DISORDERS BEHAVIOR SPECIALISTS
(g)(1) The State Board of Medicine, in consultation with the Department of Public Welfare, shall promulgate regulations providing for the licensure or certification of behavior specialists. Behavior specialists licensed or certified by the State Board of Medicine shall be subject to all disciplinary provisions applicable to medical doctors as set forth in the act of December 20, 1985 (P.L. 457, No. 112), known as the “Medical Practice Act of 1985.” Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(l) For purposes of this section, the term “autism service provider” shall include any behavior specialist in this Commonwealth providing treatment of autism spectrum disorders pursuant to a treatment plan until one (1) year from the time that regulations under subsection (g) are promulgated or until three (3) years from the effective date of this section, whichever is later. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(2) An applicant applying for a license or certificate as a behavior specialist shall submit a written application on forms provided by the State Board of Medicine evidencing and insuring to the satisfaction of the Board that the applicant: (i) Is of good moral character; (ii) Has received a master’s or higher degree from a board-approved, accredit college or university, including a major course of study in school, clinical or counseling psychology, special education, social work, speech therapy, occupational therapy or another related field; Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(iii) Has at least one year of experience involving functional behavior assessments, including the development and implementation of behavioral supports or treatment plans; (iv) Has completed at least one thousand (1,000) hours in direct clinical experience with individuals with behavioral challenges or at least one thousand (1,000) hours’ experience in a related field with individuals with autism spectrum disorders; (v) Has completed relevant training programs, including professional ethics, autism-specific training, assessments training, instructional strategies and best practices, crisis intervention, comorbidity and medications, family collaboration and addressing specific skill deficits training. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(h) An insurer shall be required to contract with and to accept as a participating provider any autism service provider within its service area and enrolled in the Commonwealth’s medical assistance program who agrees to accept the payment levels, terms and conditions applicable to the insurer’s other participating providers for such service. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(k)(1) Upon denial or partial denial by an insurer of a claim for diagnostic assessment of autism spectrum disorders or a claim for treatment of autism spectrum disorders, a covered individual or an authorized representative shall be entitled to an expedited internal review process pursuant to the procedures set forth in Article XXI, followed by an expedited independent external review process established and administered by the Insurance Department. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

(2) An insurer or covered individual or an authorized representative may appeal to a court of competent jurisdiction an order of an expedited independent external review disapproving a denial or partial denial. Pending a ruling of such court, the insurer shall pay for those services, if any, that have been authorized or ordered until such ruling. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

SECTION VII. LEGAL LIABILITIES

PROFESSIONAL OBLIGATIONS AND STANDARDS
General Complaint filed with State Board; revocation or suspension of license. Malpractice or professional liability. Administrative action: e.g. mandatory or permissive exclusion from Medicare/Medicaid; other administrative sanctions, including financial penalties. Criminal prosecution: Medicare/Medicaid Fraud. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

The Licensing Laws Statutes/Regulations Purpose. Protect the public. Scope of Practice. Licensing statutes define professional services. Licensing Boards Revocation of License Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL BOARD INVESTIGATION
Initiated as a result of: Complaint filed by patient Disciplinary action against Provider by 3rd Party Payor Referral by Administrative Agency: e.g., DPW Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL BOARD INVESTIGATION
Assign investigator to conduct investigation Interview all concerned Make a recommendation to the Board Attorney All information confidential (even to Professional) Notice and Order to Show Cause Filed by the State Attorney List factual allegations Counts that detail the allegations Penalties (fines, license revocation/suspension) Procedures 1 Pa. Code § 33.1 – 35.25 Copyright© Tsoules, Sweeney, Martin & Orr, LLC

RESPONDING TO ORDER File a written answer to Order Address each count Defense Request for judgment No Adjudication is valid unless afforded reasonable notice of a Hearing Before a hearing examiner within 90 days of receipt of Answer All relevant evidence, reasonable examination and cross-examination Prepare Briefs Findings of Fact/Conclusions of Law Memorandum of Law 2 Pa. C.S.A. § Copyright© Tsoules, Sweeney, Martin & Orr, LLC

JUDICIAL REVIEW Hearing Examiner prepares Proposed Adjudication and Order for the Board Board has right to accept/not accept – issues decision within 180 days of decision by hearing examiner Professional has right to appeal 63 P.S. § Copyright© Tsoules, Sweeney, Martin & Orr, LLC

Rost vs. State Board of Psychology – breached patient/physician privilege Morris vs. State Board of Psychology – sexual relations with patient Batoff vs. State Board of Psychology – misrepresented degree – overstepped his competency Grossman vs. State Board of Psychology – failed to obtain consent of both parents in custody evaluation Copyright© Tsoules, Sweeney, Martin & Orr, LLC

LEGAL CONSIDERATIONS IN QUALITY
Negligence: Failure to act in a reasonable and prudent manner Malpractice: Failure of a person with specialized education and training to act in a reasonable and prudent manner Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ELEMENTS OF NEGLIGENCE
DUTY = Created through the existence of a professional relationship with the patient Copyright© Tsoules, Sweeney, Martin & Orr, LLC

III. CAUSATION The patient (plaintiff) must prove by the greater weight of the evidence that the wrongful conduct was the proximate or direct cause of the injury Copyright© Tsoules, Sweeney, Martin & Orr, LLC

IV. DAMAGES Damages represent the injury to the plaintiff. Damages are also the monetary compensation which may be recovered by someone who has suffered loss, detriment, or injury to his person, property, or rights through the act, omission, or negligence of another. Copyright© Tsoules, Sweeney, Martin & Orr, LLC

PROFESSIONAL LIABILITY
Every person is responsible for the wrong or injury done to another resulting from carelessness Personal liability Requires you to assume responsibility for patient harm resulting from negligent acts Cannot be relieved of liability by another professional Copyright© Tsoules, Sweeney, Martin & Orr, LLC

THEORIES OF PROFESSIOINAL LIABILITY
Respondeat Superior (“Let the Master Answer”) = vicarious liability. An employer is responsible for the negligent acts of its employees if they were acting within the scope of their employment Copyright© Tsoules, Sweeney, Martin & Orr, LLC

EXAMPLES OF PROFESSIONAL LIABILITIES
State Board of Psychology: Duty to meet criteria of 49 Pa. Code § regarding “Standards for the Employment and Supervision of Unlicensed Persons with Graduate Training in Psychology” Insurance/Managed Care Contracts: Often prohibit billing for unlicensed personnel unless specifically credentialed by insurance/MCO Copyright© Tsoules, Sweeney, Martin & Orr, LLC

EXCEPTIONS TO RESPONDEAT SUPERIOR
Employers are not responsible for: the acts of independent contractor Ostensible Agency = provider appears to the patient to be an agent of the organization, but is not. Intentional acts When employee acted outside the scope of his/her practice Vicarious Liability: indirect legal liability Copyright© Tsoules, Sweeney, Martin & Orr, LLC

MEDICARE AND MEDICAID ENFORCEMENT
WHO ARE THE MAJOR PLAYERS? Department of Justice (“DOJ”) Center for Medicare and Medicaid Services (“CMS”) Office of Inspector General (“OIG”) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

LEGAL ENVIRONMENT WHO ARE THE MAJOR PLAYERS?
PENNSYLVANIA MEDICAID FRAUD CONTROL UNITS (MFCU) DPW: BUREAU OF PROGRAM INTEGRITY MANAGED CARE COMPANIES Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ESSENTIAL LAWS IMPLICATED
1. False Claims Act 2. Civil Money Penalties Anti-Kickback Law and Regulations (continued) Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ESSENTIAL LAWS IMPLICATED
4. Stark Law and Regulations 5. Medicare/Medicaid Laws/Regulations: Medical Necessity; Documentation 6. Insurance contracts; non-credentialed staff Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ELEMENTS OF EFFECTIVE COMPLIANCE PROGRAMS
Development and distribution of written standards of conduct and policies and procedures that promote the provider’s commitment to compliance and address specific areas of potential fraud Designation of a chief compliance officer with responsibility for operating and monitoring the compliance programs Development and implementation of mandatory effective education and training programs for all affected employees Copyright© Tsoules, Sweeney, Martin & Orr, LLC

ELEMENTS OF EFFECTIVE COMPLIANCE PROGRAMS
Maintenance of effective lines of communication, such as a hotline, to receive complaints, and the adoption of procedures to protect the anonymity of complainants and to protect whistleblowers from retaliation The enforcement of appropriate disciplinary action against employees who have violated internal compliance policies or applicable legal requirements Use of audits and other evaluation techniques to monitor compliance and assist in the reduction of identified problem areas The development of procedures to respond to detected offenses and initiate corrective actions and initiate corrective action Copyright© Tsoules, Sweeney, Martin & Orr, LLC

MENTAL HEALTH AND THE LAW IN PENNSYLVANIA

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MENTAL HEALTH AND THE LAW IN PENNSYLVANIA

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