California’s Complaint Process and Over-Regulation With Steve Frankel

Attorney Steve Frankel On California's Complaint Process

(Chitchat until 04:21)

Phillip Crum: Good morning, Kathleen.

Kathleen Mills: Good morning, Phillip. How are you today?

PC: I’m very good. I’m very excited because it’s time for another edition of Practice Mentors, which is your relatively new show.

KM: Yes, it is.

PC: Designed to educate undergraduate students, the master’s degree candidates, interns and post-licensure –

KM: All that.

PC: All that. People who are looking to get into the mental health industry and just have questions.

KM: They have questions and sometimes they have questions that they don’t even know that they have questions until we’re talking about it.

PC: We’re going to jump in. And your site, by the way, is PracticeMentors.us.

KM: Yes, it is.

PC: That’s where you can be found. We’re going to jump right in because I know you’ve got an interested fellow from the left coast today – Dr. Steve Frankel. So tell me a little bit about him and it’s all yours.

KM: Yes, we have Steve Frankel on the phone and Steve, how are you doing, sir?

Steve Frankel: Just fine, thank you.

KM: Good. And I want to introduce the audience to you and then I’m going to let you brag on you some more. Steve Frankel is a clinical psychologist from the great Indiana University in Bloomington, Indiana. And then he also is-

PC: You’re a Hoosier?

KM: (Laughs)

SF: I visited for three years, which were all I could take, thank you very much.

PC: Okay.

KM: And then you went to Columbia University to do your clinical psychology internship and you are a clinical psychologist first and foremost. And then you decided to jump into the Loyola Law School and you are now a lawyer. So that is an interesting combination, Steve. Tell us more about that … Steve? Are you there? Uh oh. Something’s the matter. Hang on.

SF: Hello? Can you hear me?

PC: It’s on his end.

KM: Okay, so let’s see. Let’s go back.

PC: Are you having a problem on your end, Steve?

SF: Can you hear me now?

KM: Yes. Can you hear us?

SF: Yeah, I hear you. I switched to a hand held instead of talking into the phone itself and you couldn’t… I don’t know what happened.

PC: That’s okay. We’ll pick up from here.

KM: We’ll pick up from here. So what I’d like to do it introduce Steve Frankel to everyone and Steve is in California and he is help- helping educate mental health professionals through a myriad of quality continuing education courses for mental health professionals, counselors, marriage and family therapists, psychologist and social workers. Steve, how are you today?

SF: I’m doing just fine. How about yourself?

KM: I am well. So you have a nice combination of being both a clinical psychologist and now you are a lawyer. And tell me about that piece before we go into what we’re going to be talking about, which is the current HIPAA regulations.

SF: I will. It turns out that that piece has to do with what we’re going to be talking about today because the insurance industry was- they’re the SOBs that sent me to law school. They are directly responsible for this. What happened was that I got my Ph.D. in Indiana back in ’68, which means I’ve been around for awhile. And I came out, after I finished my internship at Columbia, I came out to California and I joined the faculty full-time at USC in the Psych department. And I survived as a full-time faculty member for about 10 ½ / 11 years but then I had to go make a living so I opened up a practice and I’ve been practicing still, not quite to this day. I practice on Wednesdays now and I see what folks like me call “patients.” I use the word “clients” when I’m talking about legal clients, but “patients” comes out of my mouth for the people I treat for mental health. And I see a full day of patients on Wednesdays. The rest of the week I’m an attorney or a forensic psychologist or a teacher or an entrepreneur or something. And the reason that I went to law school was that the community I practiced in in Southern California was very loaded with aerospace industry employees. Aerospace industry employees are insurance-covered and I began to find that I was doing work with the insurance industry because it governed all of my practice and I began to realize that since the insurance companies governed my practice, I was no longer a professional. I was labor. I couldn’t decide how much care my patients needed, how long, how much, what price. I was being controlled completely by the insurance industry and I didn’t like it because I trained to be a professional. And so around 1990 I began to get real concerned. That was like 30 years after I started to practice, 20 years after I started to practice. And I thought about, what else could I do that I could use the same kinds of skills that I had as a psychologist that would be different? And after eliminating medicine because I was too old to do that all over again, and dentistry because I don’t have it in the hands, things like that, I wound up deciding to go to law school. So I went to Loyola Law School in Los Angeles for four years at night and I can’t say I enjoyed it. It’s hard to enjoy something like that at night for four years. But the one advantage of doing onerous things like law school when you’re older is that time passes so fast that-

KM: That was the blessing of it all, right?

SF: Yeah! Right! My classmates were average 35 years of age and they were all complaining about how long does this take, and then for me it just went blitz overnight and I was a lawyer. And when I went to law school, I actually knew that I was going to become involved as a defense attorney for licensing board actions and that was because I was a board expert for the Board of Psychology and the Board of Behavioral Sciences for the Masters degree people in California for ten years and saw how that worked and thought it was incredibly unfair to our colleagues and that our colleagues were getting into deep trouble.

KM: What didn’t you like about that, Steve? I’m sorry to segue into that, but what were you seeing in California when you’re doing that piece?

SF: At the level of… what I was seeing was that there was a tremendous amount of pull on the board experts to support the board in its way of formulating problems and going after colleagues. It’s so easy to sit with your professional society’s ethics codes lying on the table next to you as you go down the list of the things that the board said this person did. To see what you can find in which you can lay on this person and blame them for, and give them trouble for. And I didn’t like that because most of us that become psych majors take courses in social psych and learn about bias. And I saw the bias at work. The board experts who are not biased with the board’s view tend to not get used by the board and I saw that and I didn’t like it. The other thing I saw that I didn’t like is that there’s no mercy. There are two levels of board actions against people, at least here in California, and I believe in most states, and those are: For real minor things like you misplaced a file, the board has a chance to make money. They give you a citation and a fine, which is like a traffic ticket, and they can charge you $5,000 for misplacing a file and losing it or destroying it by accident. It’s a traffic ticket and it doesn’t affect your insurance or anything like that, but it’s expensive. And it’s a way for the board to cash in on mistakes that human beings make from time to time. But the only thing that happens if you go one step further and do something that the board considers to be bad – really bad – and they kill you. They take your license. They put you on a probation. It’s all public. You can’t get insurance to support your patient care. It’s a devastating kind of thing and it’s on the board’s website for ever and ever and ever.

KM: Right. The wall of shame.

SF: Yeah, it is. The whole exercise in shame management dealing with board actions. And my feeling still is, and one of my sort of I got it in the back of my head that I want to tackle this some day, is to have a middle ground that says there’s a probationary period that you can enlist in yourself. You can get a consultation from a colleague. You can put in hours of consultation experience and convince the board that you’re really trying, and they don’t kill you. Physicians have had that for years here in California. They don’t have it any more because they couldn’t afford it. The state board couldn’t afford it so they stopped it. Nurses have it here in California for people who have drug and alcohol involvement. If you take the cure, you go to 12 step and you do it the way they want to, they can actually lighten the load on you in terms of killing you. But I’ve always felt that the mental health professions needed something like that as an intermediary step to protect us. And so my feeling is that if you stray into the world of the board actions, you’ve got real big trouble.

KM: Right. You live and die by the board, don’t you?

SF: You do. Absolutely.

KM: And there tends to be little to no mercy and it’s a very painful process.

SF: Extraordinary.

KM: So you’ve been defending people with the complaint system.

SF: Yeah, for 17 years.

KM: One of the things that really intrigues me about what you do is you do these continuing education courses and the risk management class that you teach is a six-hour class and it’s talking about all that stuff that you just mentioned, Steve, with the board complaint process, current records, storage, patient access, dealing with subpoenas for records, and then the current HIPAA regulations. I am very concerned, if you will, about the new layer of HIPAA that we’re all looking at, which is daunting. And I just would really like you to comment on what your thoughts are about that as well.

SF: Yeah, I will. Okay, so let’s do HIPAA.

KM: Let’s do HIPAA. The big beast.

SF: Yeah, the big beast. Let me begin with a two minute excursion into history to tell everybody how we got here, that HIPAA is sitting on our heads like this. Back in the sixties and seventies and eighties when I trained and then when I became a psychologist, there was a psychologist there was a psychologist whose name is Arthur Kovacs. Arthur is still alive, he’s 85 or 86. He’s practicing in Santa Monica, California, with his two adult children who are MFTs and so on. And he was a senior person in psychology back in the sixties and seventies and eighties. He wrote a series of papers that basically said to psychologists, “You guys are going to screw us all. You are making a terrible mistake. You are trying to define psychologist as a health care profession and it isn’t. Of course we have impacts on people’s health care, but we’re far more complex than that. We’re counselors and we’re mentors and we’re consultants and we’re teachers and we’re relationship people. We do all kinds of things and the reason that you’re trying to define clinical psychology as a health care profession is really clear: It’s because you want get insurance companies to reimburse you so that you can get more students to come to the universities and more faculty members in the programs and that’s your way of trying to expand the field. The payment for that is we’re going to get regulated and we’re not going to like that at all.” And he was prescient. I mean, he really saw it coming back in the sixties and he was dead on.

KM: He was visionary, wasn’t he?

SF: Yeah, he sure was. And so we are now where he said we would be. We are getting regulated, and one of the regulatory things that we’re facing is a federal law called HIPAA, the Health Insurance Portability and Accountability Act, so it’s H-I-P-A-A, which people still wind up spelling HIPPA because it’s so easy to say hippa, hippa, hippa. So HIPAA was written some years ago and let me tell you what has to be true for somebody to be a HIPAA what’s called a covered entity: Somebody that has to pay attention to HIPAA. What the law says is that a covered entity – that means one of us who now because HIPAA regulated – the way that we become that way is if we engage in behavior that involved getting payment for our services by the insurance world electronically. If we use electronic transmission of information for the purpose of being paid by the insurance world, we are called covered entities under HIPAA. We are not governed by state law - I’ll get back to that in a second. We are governed by federal law. So the question becomes, “What’s electronic transmission?” And electronic transmission is using computers. If we transmit something electronically to an insurance company that is either an insurance bill or case notes or case summaries or anything back and forth to the insurance world for the purpose of being paid by an insurance company. That’s electronic transmission. And now because of the nature of iPhones, uPhones, all kinds of stuff like that, the world of electronic transmission is becoming more complex because we can send information via phone electronically that doesn’t go out over a line, it goes out through the atmosphere. And if it’s about payment, if it’s about reimbursement for work by an insurance company, we become a covered entity under HIPAA. That’s how we become vulnerable to the rules that HIPAA has. And the rule is that once we become a covered entity, we are a covered entity forever for all of the work we do as professionals. And forensic psychologists and forensic mental health professionals are beginning to find that out, too, because if their clinical practice has HIPAA as an authority type cover, then their forensic work may very well be considered HIPAA relevant as well. So HIPAA is waiting for us to the degree that we are electronically involved in getting paid by the insurance world. So that’s what it is. Let me say one more thing about it, and that is that it varies state-by-state, jurisdiction-by-jurisdiction, as a function of was it the state’s laws about privacy and privacy protection are more stringent or more powerful than HIPAA. In states like California, HIPAA is not as prominent for many of us, especially in mental health, as it is in other states because the laws in California that govern privacy of patient care records and so on are more stringent actually than HIPAA. And so HIPAA is actually not a powerful force in California as much as it might be in other jurisdictions. Your listeners come from all over the country and they have to check their jurisdiction to find out what the rules are there, whether HIPAA trumps state law or whether state law trumps HIPAA.

KM: I’m really glad you said that, because here if the mental health professional does not bill insurance and is totally self-pay, we are still governed by- we still have to do a mighty hefty compliance via HIPAA because we’re tied to the federal laws. So it’s real important to make sure you know what your state’s rules and regs are, and reference to that, because a lot of mental health- I think the disconnect is, “Well, I’ll just be self-pay and then I’m not going to be privy to the HIPAA,” and that’s not necessarily true.

SF: Right. That’s right. And so it depends very much on what the state laws are and how that works. And if folks call their licensing boards or if they call an attorney who is a health care attorney, especially a mental health care attorney, they can get answers to what the status is about their relationship to HIPAA in the different states.

KM: You know, it just raises another concern, and I’m not sure if you do this in your ethics, or your risk management, your six-hour risk management, but at least here in Texas the mental health professional has two sets of complaints to now worry about. The first one is from the actual licensing board, which you alluded to earlier in California. And the second one now is because of the Omnibus Rule and the high tech stuff, you will now be governed by- or you get a little phone call from the Department of Justice through the Civil Rights Department when there’s been a complaint launched against breach of private health care information. And that can be as little as a breach of a phone number. And then you have to go through all of that.

SF: It’s really a big problem, and it’s a growing problem. There are issues about, does your bank need to be a business associate for under HIPAA because they can see the checks that are written by the people who pay you for your services? All that sort of stuff. It’s just remarkable and invasive into our lives and actually the lives of our patients as well.

KM: Well, right. Right. Yeah. So if you could recommend some, I don’t know, five tips or something like that of encouragement to the mental health professionals on what they need to do or- all the kind of stuff.

SF: Sure. Sure. First let me say it this way: Turn on your computers and pull up your browser and type in, “HIPAA primer.” And what you’ll get is a bunch of websites that you can go to that have HIPAA information on them. Many of them are really terrific. They’re really helpful. They all want to sell you something, and I’m not asking you to go there because I endorse what they’re selling. What they have is information and they are really, really quite helpful with the information and that’s what you need. If you want to buy their product, that’s up to you. I’m not here to sell it. I’m here to just tell you that-

KM: Where to go.

SF: Yeah. So that’s the first thing I wanted to say. The second thing goes like this: My want is to give people some encouragement before I scare them. So let me say something really good about the changes in HIPAA that have come out in the past year that binds us all. Now, there are a couple of things that people don’t know and wouldn’t have thought about. If you are in a state where HIPAA governs, where HIPAA rules, one of the things that’s important for you to know is that patients are free under the law to tell you that there are certain things about their treatment, certain information that they may give you, that you are not free to disclose to their insurance company. Let me say that again, because it’s enormous: Under the new HIPAA Omnibus Rule, and the High Tech Act, there is specific law that says that a patient is free to tell you, you the therapist, you the clinician, before the start of the therapy – usually it’s when the therapy begins – there are certain things they are going to be sharing with you that have to do with their health care that they do not want you to share with their insurance company. And you are free to honor that. In fact, you have to honor it. It used to be that you could choose to honor it but in some of the lanes, but not otherwise.

KM: What does that look like, Steve? I’m just being obtuse at this point.

SF: What it looks like is this: If an insurance company wants to see your records to verify that you are doing record keeping the way they want you to. You know, they do these educational audits to make sure that you’re keeping records their way as opposed to your way. When those kinds of requests from insurance companies come, you are free to either not include that information or to redact it. That is, when you send to the insurance companies, you black out the words that you may have written in your records about what it is that the patient doesn’t want you to tell the insurance company.

KM: So I’m sure you need to sign off, or add this section of HIPAA that says that you have the right to redact.

SF: Yes. Absolutely.

KM: Okay.

SF: Absolutely. Because, and it’s right there in the statute, it’s really helpful. And it’s a really good thing. What isn’t covered under that is that it’s sort of like you need to make a copy of the record when you’re going to redact it for the insurance company and send a redacted copy, but keep the original copy. Because if you send the records to, let’s say somebody has a stroke and they wanted to find out about rehabilitation and they wanted to find out what’s going on in their therapy, that information that they didn’t want the insurance company to have – if it’s in your records, it goes to the hospital. It is going to be in your records. So protecting it from the insurance company doesn’t mean it’s protected from other authorized recipients of records.

KM: I’ve always found it helpful to copy what I send to those entities so if it ever comes back to bite me, I can clearly show what I sent.

SF: Right. Exactly. Okay, so that’s one of the important things that I wanted to tell you about HIPAA that actually, under the new system, is nice. It’s nice. Back in the sixties when I was training and stuff, there was a group of psychologists in Colorado who wrote a paper that said, “The best way to protect patient confidentiality is not to take records.”

KM: Right. Exactly. Exactly.

SF: They had an idea. S that’s one of the nice things about HIPAA. The other thing that’s important for people to know about the newest version, which is supposed to be the last version of HIPAA, is that if somebody dies, like commits suicide, the people who have been involved in caretaking that person being involved in that person’s life are free to receive copies of the records. In most states, if your state law is governing as opposed to HIPAA, they have to get a court order from a probate court to even talk to you about a deceased relative or a deceased person that they were involved with. You can’t even let them know you know these people, that you knew the patient, unless they come in with a court order that gives them that right. But under HIPAA, if HIPAA governs, then they are entitled by law to the chart, to the records, to conversations and information from you about the deceased patient that you were working with. So those are two parts of the new HIPAA rules that I think are important for people to be aware of because who would have thought about all that? Most clinicians don’t even think about these kinds of things.

KM: No, they don’t.

SF: All right, so now I’ll do the formal, “Okay, I’ll HIPAA-ize everybody.” The first thing is one of the things I’ve already said: A covered entity is somebody who transmits information for purposes of being paid electronically. That’s what makes you a HIPAA-covered entity, and once you are one you are always one. If you are in a state where HIPAA governs over state law, you are a covered entity. And so it’s a good idea to assume you are. And if you are-

PC: Steve, let me interrupt. We’re actually out of time.

SF: Oh my God!

PC: That’s not a bad thing because-