Attention Psychiatrists in All States
Renewal of Determination That A Public Health Emergency Exists
On January 7, 2021, the U.S. Department of Health & Human Services (HHS) announced that the Public Health Emergency (PHE) declaration for COVID‑19 will be renewed for another 90 days, beginning on January 21, 2021 (the date the PHE was previously scheduled to expire) and extending through April 21, 2021.
The renewal extends, among other emergency measures:
Flexibility Regarding Controlled Substances
The U.S. Drug Enforcement Administration (DEA) and the HHS Substance Abuse and Mental Health Services Administration (SAMHSA) have issued guidance allowing various flexibilities for Opioid Treatment Programs (OTPs) and other prescribers of controlled substances during the PHE, including with respect to “take-home” doses and telehealth-based assessments and counseling.
HIPAA Enforcement Discretion
The HHS Office of Civil Rights (OCR) has issued guidance [see https://www.hhs.gov/hipaa/for-professionals/special-topics/hipaa-covid19/index.html] relaxing certain federal HIPAA privacy and security rules during the PHE, including with respect to permissible telehealth technologies and community-based testing sites.
CMS Interim Final Rules with Comment Period (IFCs)
CMS’s three IFCs – effective March 31, May 8 and September 2, 2020 – modify numerous Medicare and Medicaid rules regarding, for example, Medicare coverage of telehealth, supervision of medical residents, Medicare and Medicaid diagnostic testing, provider-based hospital departments, and the Medicare Shared Savings Program (MSSP). The IFCs also introduce a number of new requirements regarding COVID-19 testing and reporting, particularly with respect to long-term care facilities. Most of the IFCs’ regulatory changes are temporary and will expire at the end of the PHE.
Section 1135 of the Social Security Act authorizes HHS to modify certain federal healthcare requirements during an emergency to ensure sufficient access to services for Medicare and Medicaid beneficiaries, and to protect providers against penalties for good faith attempts to deliver services in emergency conditions. HHS and the Centers for Medicare & Medicaid Services (CMS) have issued dozens of nationwide “blanket” waivers and state-specific Medicaid waivers that, among other things, enhance providers’ ability to establish alternative sites of care or practice across state lines, expand Medicare telehealth coverage, and suspend many federal oversight and reporting requirements.
- In general, these waivers may remain in effect for only so long as there exist both (1) a PHE declared by HHS and (2) a presidential declaration under either the National Emergencies Act (NEA) or the Stafford Act. Both conditions were satisfied effective March 1, per the President’s NEA declaration. As of the time of writing, the NEA declaration remains in effect, as do several declarations under the Stafford Act.
- Waivers that broaden Medicare telehealth coverage last until the end of the PHE whether or not a qualifying presidential declaration remains in effect, pursuant to amendments made in the Coronavirus Preparedness and Response Supplemental Appropriations Act that Congress passed on March 6, 2020.
Attention Missouri Psychiatrists
The Missouri Merchandising Practices Act (MMPA) S.B. 591 updated the consumer protection statute and their private right of action. Of importance to the Missouri psychiatrists, the bill would prohibit plaintiffs from using the MMPA as a vehicle to bring claims that should be filed under Missouri’s medical malpractice statute, i.e., claims based on improper health care.
Attention Arizona Psychiatrists
The Arizona Court of Appeals issued its opinion in Clayton v. Hon. Kenworthy et al., regarding an unrecorded Rule 35, Ariz. R. Civ. P. neuropsychological examination.
In Clayton, the mother of a six-year-old child who suffers from bilateral hearing loss and cerebral palsy, among other disabilities, sued her son’s doctors and hospital for medical malpractice on her son’s behalf for negligently delivering him and causing his disabilities. The defendants requested a Rule 35 neuropsychological examination of the child to determine his current and future cognitive abilities. Mother agreed to the examination on the condition that she be present to observe the examination through one-way glass or have the examination video-recorded through a small recording device. The defendants objected to any form of observation or recording on the basis that any presence (physical or electronic) of a third party – e.g., the mother – would interfere with the examination. The trial court agreed with defendants and denied plaintiff’s request to have mother observe the examination or record it. Plaintiffs sought special action relief.
In the special action briefing, Mother did not argue that she should have been permitted to observe the examination behind one-way glass (and the Court of Appeals noted that it could not have found the trial court abused its discretion on this issue because it heard evidence supporting its ruling). However, she did argue that the trial court abused its discretion by completely prohibiting the recording of the examination. The Court of Appeals agreed.
The takeaway for psychiatrists is that when a neuropsychological examination is conducted at the request of the opposing party, Rule 35 “unambiguously creates a right for the examinee to have his or her examination recorded.”
Attention California Psychiatrists
Assembly Bill 890 would allow nurse practitioners to practice independently by 2023. Nurse practitioners would have to operate under a doctor’s supervision for a minimum three-year transition period before embarking on their own practices. Current California law requires nurse practitioners, who hold masters or doctorate degrees in nursing and additional certification beyond a regular nursing degree, to always operate under a doctor’s supervision.
The new law will direct the Board of Registered Nursing to establish a commission to oversee implementation and requirements. Nurse practitioners must notify patients that they are not physicians under the measure.