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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.

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Presentation on theme: "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."— Presentation transcript:

1 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::

2 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 2 MENTAL HEALTH AND THE LAW IN PENNSYLVANIA – CONSENT TO MENTAL HEALTH TREATMENT AGENDA I.CONSENT TO TREATMENT II.BALANCING THE RIGHTS OF MINORS, PARENTS AND PROVIDERS: ACT 147 III.CONFIDENTIALITY OF MENTAL HEALTH RECORDS AND ACT 147 IV.SPECIAL AREAS: CONFIDENTIALITY V.RESPONDING TO SUBPOENAS, CORUT ORDERS AND LAW ENFORCEMENT PERSONNEL VI.AUTISM INSURANCE ACT VII.LEGAL LIABILITIES

3 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 3 SECTION I. CONSENT TO TREATMENT

4 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 4 CONSENT TO TREATMENT Battery: Intentional and wrongful physical contact with a person without his or her consent that entails some injury or offensive touching.

5 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 5 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 patients consent commits an assault, for which he is liable in damages. Schloendorff v. Socy of N.Y. Hosp., 105 N.E. 92, 93 (1914).

6 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 6 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.

7 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 7 CONSENT TO TREATMENT PENNSYLVANIA: STATE BOARD OF PSYCHOLOGY APA ETHICAL STANDARDS – SELECTED SECTIONS § 3.10Informed Consent § 8.02Informed Consent to Research § 8.03Informed Consent for Recording Voices and Images in Research § 9.03Informed Consent in Assessments §10.01Informed Consent to Therapy

8 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 8 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.

9 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 9 INFORMED CONSENT APA Ethical Standards (3.10(b)) When patient is legally incapable, psychologist must: (1) provide an appropriate explanation, (2) seek the individuals assent, (3) consider such persons preferences/best interests, and (4) obtain appropriate permission from a legally authorized person.

10 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 10 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.

11 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 11 IMFORMED CONSENT IN APA ETHICAL STANDARDS (9.03) (a)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

12 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 12 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 3 rd parties Limits of confidentiality Provide sufficient opportunity for questions/answers

13 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 13 CONSENT TO TREATMENT DPW – Prohibited Acts Social Workers – NASW Code of Ethics Licensed Professional Counselors – ACA Code of Ethics

14 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 14 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)

15 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 15 CONSENT TO TREATMENT WHOSE CONSENT IS NECESSARY? Competent Adult. There is a strong legal presumption of a persons competence to make informed decisions.

16 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 16 CONSENT TO TREATMENT Competence To Consent To Treatment 1.Deliberate About the Information Which Needs to be Considered in Reaching the Decision 2.Decide to Accept or Reject a Proposed Plan of Treatment 3.Understanding the Relevant Information Necessary to Reach a Decision Source: Competence to Consent to Treatment as a Psychological Construct, Allan Tepper and Amiram Elwork

17 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 17 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

18 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 18 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.

19 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 19 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 individuals behalf Combination of both

20 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 20 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

21 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 21 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

22 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 22 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

23 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 23 REFUSAL OF TREATMENT Federal Pennsylvania Refusal of Medication Restraint and Seclusion: DPW (DPW Bulletin: OMHSAS-02-01)

24 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 24 REFUSAL OF TREATMENT Limitations States interest in preserving life Patients refusal constitutes a suicide attempt States interest in preserving the integrity of the medical profession Termination of pregnancy

25 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 25 RESTRAINTS/SECLUSION Private Practices – without patients consent restraints constitute a battery Child Residential and Treatment Facilities – 55 Pa. Code § DPW – 55 Pa. Code § 13.1 – applicable to facilities operated by Dept. (health centers, state hospitals,, institutions for mentally ill/retarded) (Continued)

26 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 26 RESTRAINTS/SECLUSION 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)

27 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 27 RESTRAINTS/SECLUSION 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.

28 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 28 CONSENT TO TREATMENT Guardianship The Standby Guardianship Act Incapacitated Persons

29 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 29 SECTION II. INPATIENT MENTAL HEALTH TREATMENT AGENDA Voluntary Inpatient Treatment Involuntary Inpatient Treatment

30 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 30 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)

31 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 31 VOLUNTARY INPATIENT MHT 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)

32 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 32 VOLUNTARY INPATIENT MHT 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.)

33 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 33 VOLUNTARY INPATIENT MHT Adolescent Consent and Parental Rights Notice to parents Right to object Hearing within 72 hours (50 P.S. §7204)

34 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 34 VOLUNTARY INPATIENT MHT 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.

35 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 35 VOLUNTARY INPATIENT MHT 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)

36 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 36 VOLUNTARY INPATIENT MHT 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)

37 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 37 VOLUNTARY INPATIENT MHT 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)

38 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 38 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)

39 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 39 INVOLUNTARY INPATIENT MHT 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.

40 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 40 INVOLUNTARY INPATIENT MHT 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).

41 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 41 INVOLUNTARY INPATIENT MHT 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.

42 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 42 INVOLUNTARY INPATIENT MHT INVOLUNTARY COMMITMENT §302 - 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

43 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 43 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 minors 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.

44 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 44 MINORS CONSENT ACT 35 P.S. § 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.

45 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 45 MINORS CONSENT TO MEDICAL, DENTAL AND HEALTH SERVICES 35 P.S. § 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.

46 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 46 MINORS CONSENT TO MEDICAL, DENTAL AND HEALTH SERVICES 35 P.S. § 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.

47 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 47 MINORS CONSENT TO MEDICAL, DENTAL AND HEALTH SERVICES 35 P.S. § 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 physicians judgment, an attempt to secure consent would result in delay of treatment which would increase the risk to the minors life or health.

48 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 48 MINORS CONSENT TO MEDICAL, DENTAL AND HEALTH SERVICES 35 P.S. § 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 minors parent or legal guardian, if the physician or other person relied in good faith upon the representations of the minor.

49 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 49 OTHER MINOR CONSENT AREAS Emancipation Substance Abuse Services (71 P.S. § ) Abortion Control Act (18 Pa. C.S.A. § 3201 et seq.)

50 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 50 ACT 147 Agenda Minors Consent Act Definitions Consent: Outpatient Treatment Consent: Inpatient Treatment

51 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 51 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

52 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 52 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

53 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 53 ACT 147 Mental Health Treatment means a course of treatment, including evaluation, diagnosis, therapy and rehabilitation designed and administered to alleviate an individuals 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

54 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 54 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?

55 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 55 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 minors parent or legal guardians consent shall not be necessary. Act 147: §1.1(a)(1) CONTINUED

56 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 56 ACT 147: CONSENT FOR OUTPATIENT TREATMENT 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

57 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 57 ACT 47: CONSENT FOR OUTPATIENT TREATMENT 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.

58 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 58 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

59 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 59 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)

60 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 60 ACT 147: INPATIENT TREATMENT Act 147 does not restrict or alter: a minors 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

61 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 61 ACT 147: INPATIENT TREATMENT Act 147 does not restrict or alter a P/LGs right to object to minors (14+) consent to voluntary inpatient treatment under the MHPA. Act 147:1.1(b)(3) See 50 P.S. § 7204 (Notice to Parent)

62 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 62 ACT 147: INPATIENT TREATMENT P/LG may not abrogate consent of minor; minor may not abrogate consent of P/LG. Act 147: §1.1(b )(4)

63 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 63 ACT 147: INPATIENT TREATMENT 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

64 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 64 ACT 147: INPATIENT TREATMENT Minor who has consented to inpatient treatment may revoke his/her consent; minors 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…

65 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 65 ACT 147: INPATIENT TREATMENT Facility Director shall: Provide minor (14-17 years of age) with an explanation of the nature of the treatment and minors rights; File a petition with the Court, if minor objects to treatment consented to by P/LG. Act 147: §1.1(b)(7)(8)

66 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 66 ACT 147: INPATIENT TREATMENT 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

67 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 67 ACT 147: INPATIENT TREATMENT For patient treatment to continue against minors 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.

68 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 68 ACT 147: INPATIENT TREATMENT 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)

69 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 69 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)

70 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 70 ACT 147: INPATIENT TREATMENT 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)

71 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 71 ACT 147: INPATIENT TREATMENT 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?

72 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 72 ACT 147 – INPATIENT TREATMENT Issues/Topics Act 147 Hearings – Coordination With Local Court – P/LG legal rights – Utilization Review – Retroactive Audits

73 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 73 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.

74 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 74 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. 4 th 564 (Pa D&C 2000) Andrews v. Andrews, 601 A.2d 352 (Pa. Super Ct. 1992)

75 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 75 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.

76 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 76 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.

77 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 77 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 minors life or health. CONSENT AND CLIENTS IN THE DEPENDENCY SYSTEM

78 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 78 CONSENT AND CLIENTS IN THE DELINQUENCY SYSTEM Minor awaiting adjudication or post-adjudication in secure detention or secure care facility RoutineParents Prior General Written Consent OR Court Order Non-routine Parents Prior Written Consent To Each Instance of Treatment OR Court Order EmergencyNo Consent Needed

79 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 79 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

80 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 80 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

81 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 81 SECTION III. CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 1.GENERAL RULE: Obtain the Patients 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.

82 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 82 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 individuals 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 patients right to prevent disclosure of such information is constitutionally based.

83 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 83 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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 mothers assertion of her right of privacy.

84 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 84 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS INPATIENT PSYCHIATRIC SERVICES Confidentiality of Records (50 P.S. §7111) All documents concerning persons in treatment shall be kept confidential and, without the persons written consent, may not be released or their contents disclosed to anyone except: Continued

85 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 85 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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.

86 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 86 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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.

87 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 87 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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 defendants 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.

88 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 88 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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 decedents confidential mental health inpatient treatment records. Court denied request. Heir could not waive confidentiality with respect to decedents inpatient mental health records. Distinguish: Heir from Executor

89 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 89 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS INPATIENT PSYCHIATRIC SERVICES Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456 (3 rd 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.

90 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 90 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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 childs mental health records. The court held that the child who was over 14 was the only one who could authorize the release.

91 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 91 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS OUTPATIENT MENTAL HEALTH SERVICES Outpatient Clinic Partial Hospitalization BHRS After Act 147: Private Practice

92 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 92 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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

93 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 93 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS § 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/patients executor or personal representative of estate Parent or Guardian if person is under 14 or incompetent

94 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 94 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS § 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

95 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 95 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS § 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/patients attorney Defense counsel for Provider may review records; minimum necessary applies Employees are to be informed; violations include civil and criminal liability

96 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 96 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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

97 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 97 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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)

98 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 98 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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)

99 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 99 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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)

100 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 100 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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

101 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 101 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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

102 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 102 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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

103 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 103 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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)

104 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 104 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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)

105 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 105 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS 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)

106 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 106 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?

107 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 107 CONFIDENTIALITY OF RECORDS 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 individuals right to prohibit disclosure Privileged communications are protected Privilege is not absolute – child abuse v.

108 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 108 CONFIDENTIALITY OF RECORDS 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

109 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 109 CONFIDENTIALITY OF RECORDS 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.

110 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 110 CONFIDENTIALITY OF RECORDS PROFESSIONAL AND VOCATIONAL STANDARDS Standards of Practice – Psychiatrists The American Psychiatrists 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.

111 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 111 CONFIDENTIALITY OF RECORDS PROFESSIONAL AND VOCATIONAL STANDARDS Chapter 21: Standards of Nursing Conduct A registered nurse shall: Safeguard the patients 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)

112 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 112 CONFIDENTIALITY OF RECORDS PROFESSIONAL AND VOCATIONAL STANDARDS Social Workers (63 P.S. §1911(a)) 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.

113 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 113 CONFIDENTIALITY OF RECORDS PROFESSIONAL AND VOCATIONAL STANDARDS Psychologists (49 Pa. Code Chapter 41) Principle 5. 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.

114 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 114 CONFIDENTIALITY OF RECORDS 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.

115 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 115 CONFIDENTIALITY OF RECORDS 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.

116 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 116 CONFIDENTIALITY OF RECORDS 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

117 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 117 CONFIDENTIALITY OF RECORDS 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 Nations citizenry, no less than its physical health, is a public good of transcendent importance. The likely endentiary benefit is modest.

118 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 118 CONFIDENTIALITY OF RECORDS 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)

119 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 119 CONFIDENTIALITY OF RECORDS 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)

120 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 120 CONFIDENTIALITY OF RECORDS TESTIMONIAL PRIVILEGE: PSYCHOLOGISTS (49 Pa. Code Chapter 41) Principle 5. Confidentiality Psychologists may not, without the written consent of their clients or the clients authorized legal representative, or the clients 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.

121 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 121 CONFIDENTIALITY OF RECORDS 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

122 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 122 CONFIDENTIALITY OF RECORDS 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 Boards Conclusion that Rost violated…the Act. Additionally, we agree with the Board that Rosts breach of her duty of confidentiality constitutes unprofessional conduct in violation of…the Act.

123 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 123 CONFIDENTIALITY OF RECORDS TESTIMONIAL PRIVILEGES: Sexual Assault Counselors (42 Pa. C.S. § ) TESTIMONIAL PRIVILEGES: Spousal Communications to Qualified Professionals (42 Pa. C.S.A. §5948)

124 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 124 CONFIDENTIALITY OF RECORDS 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

125 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 125 SECTION IV. SPECIAL ISSUES - CONFIDENTIALITY

126 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 126 SPECIAL ISSUES - CONFIDENTIALITY AGENDA Special Situations Duty to Warn HIPAA Child Protective Services

127 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 127 CONFIDENTIALITY OF RECORDS Duty to Warn Duty to Third Parties: General Rule Physicians Duty: Diagnose and Warn of Contagious Diseases

128 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 128 CONFIDENTIALITY OF RECORDS 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.

129 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 129 CONFIDENTIALITY OF RECORDS 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.

130 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 130 CONFIDENTIALITY OF RECORDS 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.

131 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 131 CONFIDENTIALITY OF RECORDS HIPAA-Federal Confidentiality Regulations

132 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 132 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.

133 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 133 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.

134 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 134 TWO BASIC CONDITIONS FOR HIPAA COMPLIANCE 1.You meet the definition of a provider, plan or clearing house. 2.You exchange (send/receive) information utilizing Standard Transactions.

135 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 135 Transaction means the transmission of information between two parties to carry out financial or administrative activities related to health care. 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. It includes the following types of information transmissions

136 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 136 WHO IS SUBJECT TO HIPAA? Health Plan Clearinghouses Health Care Providers Business Associates

137 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 137 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.

138 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 138 AUTHORIZATION: PSYCHOTHERAPY NOTES With a few exceptions, Covered Entities must obtain the individuals 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.

139 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 139 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."

140 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 140 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.

141 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 141 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.

142 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 142 PSYCHOTHERAPY NOTES AND MEDICARE AUDIT OF Medicare cannot require release of psychotherapy notes Provider must produce documentation of excluded information: start/stop time; diagnosis; symptoms; prognosis; progress to date

143 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 143 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.

144 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 144 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

145 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 145 CHILD PROTECTIVE SERVICES 4 Categories of Child Abuse Non-accidental physical injury Neglect Sexual Abuse or exploitation Serious mental injury

146 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 146 CHILD PROTECTIVE SERVICES Serious Mental Injury A psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that: 1.Renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the childs life or safety is threatened; 2.Seriously interferes with a childs ability to accomplish age- appropriate developmental and social tasks.

147 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 147 CHILD PROTECTIVE SERVICES 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 childs parent, guardian or person responsible for the childs 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 childs life or long-term health.

148 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 148 CHILD PROTECTIVE SERVICES 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))

149 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 149 CHILD PROTECTIVE SERVICES 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)

150 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 150 CHILD PROTECTIVE SERVICES 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

151 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 151 CHILD PROTECTIVE SERVICES 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

152 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 152 CHILD PROTECTIVE SERVICES Privileged Communication Immunity from Liability Penalties for Failure to Report

153 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 153 SECTION V. RESPONDING TO SUBPOENAS, COURT ORDERS AND LAW ENFORCEMENT

154 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 154 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

155 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 155 RESPONDING TO SUBPOENAS 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)

156 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 156 PENNSYLVANIA SUBPOENA Issued by Prothonotary Served reasonably in advance of the date attendance required

157 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 157 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

158 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 158 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)

159 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 159 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))

160 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 160 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 Generals offices Ex.: False Claims Act violations (31 U.S.C. § 3733)

161 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 161 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)

162 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 162 RESPONDING TO SUBPOENAS Duty to Respond Recipient must respond Failure to respond – court may issue bench warrant Compel enforcement by Court Filing

163 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 163 RESPONDING TO SUBPOENAS Contesting a Subpoena Contact attorney issuing subpoena: To limit scope of subpoena Be excused from compliance Contact patient/patients attorney File Motion to Quash with Court (Cont.)

164 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 164 RESPONDING TO SUBPOENAS 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

165 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 165 CONFIDENTIALITY OF MENTAL HEALTH TREATMENT RECORDS § 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/patients attorney Defense counsel for Provider may review records; minimum necessary applies Employees are to be informed; violations include civil and criminal liability

166 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 166 RESPONDING TO SUBPOENAS 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

167 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 167 RESPONDING TO SUBPOENAS 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 (Cont.)

168 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 168 RESPONDING TO SUBPOENAS 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

169 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 169 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

170 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 170 RESPONDING TO LAW ENFORCEMENT 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

171 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 171 RESPONDING TO LAW ENFORCEMENT 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

172 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 172 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

173 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 173 DISCLOSURES TO LAW ENFORCEMENT - HIPAA Victims of a crime Decedents Crime committed on CEs 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

174 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 174 SECTION VI.: ACT 62 THE AUTISM INSURANCE ACT

175 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 175 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 plans renewal date on or after 7/1/09 (continued)

176 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 176 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

177 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 177 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)

178 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 178 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.

179 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 179 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)

180 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 180 AUTISM SPECTRUM DISORDERS COVERAGE (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, Aspergers disorder and pervasive developmental disorder not otherwise specified. )

181 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 181 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

182 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 182 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.

183 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 183 AUTISM SPECTRUM DISORDERS COVERAGE (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

184 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 184 AUTISM SPECTRUM DISORDERS COVERAGE (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.

185 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 185 AUTISM SPECTRUM DISORDERS COVERAGE (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

186 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 186 AUTISM SPECTRUM DISORDERS COVERAGE (2)Autism service provider means any of the following: (i)A person, entity or group providing treatment of autism spectrum disorders, pursuant to a treatment plan, that is licensed or certified in this Commonwealth. (ii)Any person, entity or group providing treatment of autism spectrum disorders, pursuant to a treatment plan, that is enrolled in the Commonwealths medical assistance program on or before the effective date of this section. (continued)

187 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 187 AUTISM SPECTRUM DISORDERS COVERAGE (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.

188 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 188 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.

189 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 189 AUTISM SPECTRUM DISORDERS COVERAGE (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.

190 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 190 AUTISM SPECTRUM DISORDERS COVERAGE (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 masters 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;

191 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 191 AUTISM SPECTRUM DISORDERS COVERAGE (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.

192 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 192 AUTISM SPECTRUM DISORDERS COVERAGE (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 Commonwealths medical assistance program who agrees to accept the payment levels, terms and conditions applicable to the insurers other participating providers for such service.

193 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 193 AUTISM SPECTRUM DISORDERS COVERAGE (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.

194 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 194 AUTISM SPECTRUM DISORDERS COVERAGE (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.

195 SECTION VII. LEGAL LIABILITIES

196 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 196 PROFESSIONAL OBLIGATIONS AND STANDARDS Genera l 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.

197 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 197 PROFESSIONAL OBLIGATIONS AND STANDARDS The Licensing Laws Statutes/Regulations Purpose. Protect the public. Scope of Practice. Licensing statutes define professional services. Licensing Boards Revocation of License

198 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 198 PROFESSIONAL BOARD INVESTIGATION Initiated as a result of: Complaint filed by patient Disciplinary action against Provider by 3 rd Party Payor Referral by Administrative Agency: e.g., DPW

199 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 199 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

200 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 200 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. §

201 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 201 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. §

202 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 202 DISCIPLINARY POWERS Fines Revocation or suspension of license Reprimand National Practitioners Data Bank Report

203 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 203 PROFESSIONAL OBLIGATIONS AND STANDARDS 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

204 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 204 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

205 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 205 ELEMENTS OF NEGLIGENCE DUTY = Created through the existence of a professional relationship with the patient

206 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 206 II. BREACH OF DUTY Failure to conform to the required standard of care. Res Ipsa Loquitur

207 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 207 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

208 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 208 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.

209 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 209 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

210 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 210 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

211 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 211 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

212 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 212 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

213 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 213 WHO ARE THE MAJOR PLAYERS? Department of Justice (DOJ) Center for Medicare and Medicaid Services (CMS) Office of Inspector General (OIG) MEDICARE AND MEDICAID ENFORCEMENT

214 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 214 LEGAL ENVIRONMENT WHO ARE THE MAJOR PLAYERS? PENNSYLVANIA MEDICAID FRAUD CONTROL UNITS (MFCU) DPW: BUREAU OF PROGRAM INTEGRITY MANAGED CARE COMPANIES

215 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 215 ESSENTIAL LAWS IMPLICATED 1.False Claims Act 2.Civil Money Penalties 3.Anti-Kickback Law and Regulations (continued)

216 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 216 ESSENTIAL LAWS IMPLICATED 4.Stark Law and Regulations 5.Medicare/Medicaid Laws/Regulations: Medical Necessity; Documentation 6.Insurance contracts; non-credentialed staff

217 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 217 ELEMENTS OF EFFECTIVE COMPLIANCE PROGRAMS 1.Development and distribution of written standards of conduct and policies and procedures that promote the providers commitment to compliance and address specific areas of potential fraud 2.Designation of a chief compliance officer with responsibility for operating and monitoring the compliance programs 3.Development and implementation of mandatory effective education and training programs for all affected employees

218 Copyright© 2009 Tsoules, Sweeney, Martin & Orr, LLC 218 ELEMENTS OF EFFECTIVE COMPLIANCE PROGRAMS 4.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 5.The enforcement of appropriate disciplinary action against employees who have violated internal compliance policies or applicable legal requirements 6.Use of audits and other evaluation techniques to monitor compliance and assist in the reduction of identified problem areas 7.The development of procedures to respond to detected offenses and initiate corrective actions and initiate corrective action


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