Attention All Psychiatrists

The Office of Civil Rights (“OCR”) of the Department of Health and Human Services (“DHHS”) continues to issue fines and penalties to health care providers and institutions, including small office practices, for failing to comply in a timely manner with a patient’s request for a copy of their medical records.  The most recent fines were against small dental office practices ranging from $25,000 – $80,000. While these fines were against dentists, it is important to timely comply with these requests and seek risk management or legal advice with questions, as healthcare professionals (in all fields) are not immune from potential fines.

OCR Settles Three Cases with Dental Practices for Patient Right of Access under HIPAA | HHS.gov

Attention All Psychiatrists

The Federal government lifted some restrictions related to HIPAA and telemedicine during the pandemic. However, OCR encouraged providers to notify patients of potential privacy and security risks. While OCR did not provide specific language necessary to inform patients of privacy risks, they still have the power to issue fines and penalties for HIPAA-related violations. As multiple complaints by patients have been filed related to security issues, we highly recommend that providers who are not currently using a HIPAA compliant video platform immediately switch platforms to protect the privacy of their patients and obtain a Business Associate Agreement from the software company to protect themselves in the event of HIPAA breach caused by the software company.

Medicare Telehealth: Actions Needed to Strengthen Oversight and Help Providers Educate Patients on Privacy and Security Risks | U.S. GAO

Attention All Psychiatrists

The House of Representatives passed the Mental Health Matters Act, which addresses the “severe impact” COVID-19 had on students, educators and families by putting more mental health experts in schools and expanding that pipeline of school-based professionals. Should this pass the Senate, the Department of Education will administer the grants.

https://www.congress.gov/bill/117th-congress/house-bill/7780/text

Attention All Psychiatrists

In July 2022, the Department of Health and Human Services (“HHS”) released a proposed rule to implement Section 1557 of the Affordable Care Act (“ACA”) that bans discrimination based on race, color, national origin, sex, age and disability in certain health programs and activities. The proposed rule expands civil rights protections for patients in certain federally funded programs by clarifying the scope and application of Section 1557.

HHS Announces Proposed Rule to Strengthen Nondiscrimination in Health Care | HHS.gov

Attention All Psychiatrists

In July 2022, the Centers for Medicare and Medicaid Services published a final rule titled “Medicare Program: FY 2023 Inpatient Psychiatric Facilities Prospective Payment System; Rate Update and Quality Reporting; Request for Information.” The final rule will update Medicare payment rates for the Inpatient Psychiatric Facility Prospective Payment System for Fiscal Year (“FY”) 2023 and sets a permanent 5% cap. The rule does not make any changes to the IPF Quality Reporting Program. The final rule went into effect on Oct. 1, 2022.

Fiscal Year 2023 Medicare Inpatient Psychiatric Facility Prospective Payment System Final Rule (CMS-1769-F) | CMS

Attention All Psychiatrists

Psychiatrists and other mental health professionals should be using the ICD-10-CM codes and the codes impacting psychiatry in the 2022 DSM-5-TR Update: Supplement to the Diagnostic and Statistical Manual of Mental Disorders and the DSM-5-TR Neurocognitive Disorders Supplement which were released in Fall 2022.

Attention Alabama Psychiatrists

The Alabama Supreme Court strengthened the requirement for malpractice claims made under the Alabama Liability Medical Act (“ALMA”). ALMA requires that plaintiffs must provide to the defendant fair notice of the alleged negligent medical act and must identify the time and place it occurred resulting in harm. The Court found that where a plaintiff generally describes an act of negligence during a period of time in the initial Complaint and attempts to add additional allegations in an Amended Complaint, after the Statute of Limitations has run, it is not enough to relate it back to the original Complaint. Alabama Rule of Civil Procedure allows plaintiffs to amend their pleadings that change “only the legal theory of the action or adds another claim arising out of the same transaction or occurrence” to relate back.

In this recent decision, the Court focused on whether an Amended Complaint filed after the expiration of the Statute of Limitations addressed an incident “distinct in time” and “distinct in conduct” from what was originally alleged. The Court ultimately found that where a Plaintiff generally described conduct in a three-day period that led to an alleged wrongful death, that was not enough to relate the new claims back to the time of the original complaint, and therefore, the motion to dismiss on the grounds that the Statute of Limitations had passed was granted.

Recent Decisions by Alabama Supreme Court Significantly Impact Pleading and Discovery Limitations in Medical Malpractice Cases – Lexology

Attention New Jersey Psychiatrists

In August 2022, the Supreme Court of New Jersey issued its decision that punitive damages in medical malpractice cases were available only in exceptional circumstances. The Court stated that to seek punitive damages, the plaintiff needs to prove actual malice or wanton and willful disregard for the patient’s safety.

NJ Supreme Court: No Punitive Damages in Medical Malpractice Case Without Evidence of Wanton and Willful Conduct – Lexology

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