Exempt LCSWs from GFE - 1-26-22
I hope everyone is feeling well-informed about the Good Faith Estimate rule, part of the No Surprises Act, which went into effect on January 1. There have been several webinars on this topic and one can be found at the CSWA website in the Members Only Section.
CSWA is working on two fronts to get LCSWs exempted from the GFE. One is a letter we co-wrote with the Psychotherapy Action Network (attached). The other is a campaign to let members of Congress know about the fact that LCSWs in private practice do not need to be part of the GFE; we already do everything that it requires and there are vanishingly low numbers of LCSWs who have had actionable complaints filed against them for surprise billing.
Please send your members of Congress at www.Congress.gov the following message: “I am a constituent and a member of the Clinical Social Work Association. The No Surprises Act requires me as a Licensed Clinical Social Worker to give my patients a Good Faith Estimate. I am in private practice and have patients pay me directly. The GFE interferes with the mental health treatment process (detailed in the attached letter). Please exempt LCSWs from the Good Faith Estimate requirements.”
Joint Advocacy by CSWA and PSian on our Behalf | NSA Letter to CMS (fin.) - 1-25-22.pdf
Laura Groshong, LICSW, CSWA Director of Policy and Practice
Good news from CMS! CMS announced on November 2, 2021, the first group of many rules regarding the Physician Fee Schedule, which CSWA, and many of you, GWSCSW members, commented on in August. Our voices made a difference. CMS will extend coverage of telemental health and audio-only psychotherapy until the end of 2023.
CMS also changed the requirement that patients be seen in person from every six months to every 12 months starting in January of 2022. CSWA will continue to get this restrictive and unnecessary rule eliminated.
The announcement from CMS on rules for telemental health raised some questions which I will answer below:
Thanks to everyone who participated in this effort. Let me know if you have questions.
The rise in COVID-19 cases due to the new Delta variant and others is cause for concern. But in this case, as in much of the pandemic, all concerns are not created equal. To understand the risk we face on the personal and professional level, it is necessary to get information that is specific to our location. The CDC has just created a new data base that provides the current level of infection for every county in the country. The COVID Data Tracker is updated daily and can be found at https://covid.cdc.gov/covid-data-tracker/#county-view CSWA suggests that whether you live in an area that is a hot spot for infection or one with low levels of infection, it is prudent to continue to wear masks and maintain social distance of 6 feet in public indoor areas.
The topic of whether to return to seeing patients in person is also on the minds of LCSWs. Please see the two hour webinar I recorded on July 22 to get detailed information on how to make your own decision about what is best for you. You can find it at https://www.clinicalsocialworkassociation.org/CSWA-Webinars#ToBe in the Members Only section.
More and more often, LCSWs are receiving letters questioning the “medical necessity” of our treatment. To address these often baseless conclusions, CSWA has developed the response below which you may use to explain the validity of your treatment decisions. An electronic Word document of this letter can be found at the CSWA website.
CSWA Survey on Returning to the Office
CSWA would like to get an idea of where members stand on the issue of returning to the office and in-person practice. Please take this brief survey to help us gather this data. There is also a section on what topics members would like to see CSWA provide in webinars. Please go to https://docs.google.com/forms/d/e/1FAIpQLScas3RrgHzg1syi5-0aV-Os4PwTx2CzWinKQashpJbZQ-HNCA/viewform to complete the survey. Thank you for your participation.
CSWA has been holding virtual Town Halls every 3-4 weeks for the past six months, moderated by Laura Groshong, CSWA Director of Policy and Practice. Since there are not many representatives from GWSCSW – except for stalwarts Steve Szopa and Margot Aronson (Hi, Steve and Margot!) – I thought you might like to get a taste of what goes on in these 90-minute meetings of 30-40 CSWA members around the country. The summary below is from our April 20 Town Hall:
We convened about 15 minutes after the verdicts on Chauvin were announced and almost everyone referenced the relief they felt about the decision; some tears were shed by most attendees. It took about an hour to get through the intros and process the feelings raised by the decision.
We did get to other issues including:
Several long-term members of the group have formed relationships outside the meetings and everyone was very grateful for the opportunity to continue to meet.
We hope you join us at our next session on June 8, 5:30 pm EDT
Laura Groshong, LICSW, Director, Policy and Practice
Below is an excellent summary of the legal protections for telehealth services, including behavioral health treatment, in all 50 states and District of Columbia (seven states do not have laws about telehealth coverage including AL, ID, PA, NC, SC, WI, WY) put together by the law firm of Foley and Lardner. The link is https://www.foley.com/-/media/files/insights/publications/2021/02/21mc30431-50state-telemed-reportmaster-02082021.pdf
The areas covered include state laws about coverage for telehealth and audio-only treatment; reimbursement requirements; how long coverage will last; the actual language of the laws in each state; and more.
Even if you think you know your state’s laws about telemental health, this is a good review and offers ways to improve telemental health laws based on what other states have done.
Laura Groshong, LICSW, Director, Policy and Practice
Clinical Social Work Association
The Impact of “Open Notes” on LICSW Practice
A recent message on the new rule called “Open Notes” created more questions than answers. This article is an attempt to clarify what is a somewhat regulatory, primarily semantic, and largely a continuation of record-keeping for LICSWs. Here is a list of FAQs about the Open Notes rule:
As LICSWs, we know that it is a clinical issue if the patient wants to see what we have written about them and it happens fairly rarely. We also know that it is a best practice, whether we are keeping notes for our own medical record or an interoperable one, to keep notes brief and connected to the treatment goals established for a given patient. If we stick to these practices, Open Notes should not pose a problem for clinical social workers.
Laura Groshong is the Director, Policy and Practice for the Clinical Social Work Association.
What Will “Normal” Psychotherapy Become? A Somewhat Cloudy Crystal Ball Updated
The pandemic continues to have a major impact on the psychotherapeutic work that LCSWs do. This article is a somewhat updated version of the one I wrote for the last newsletter on this overriding topic.
Since the Department of Health and Human Services (DHHS) recently extended the state of emergency through October 23, it appears that the current coverage of videoconferencing and audio therapy will continue during this time as well. There are bills currently in Congress that would make Medicare coverage of videoconferencing and audio-only treatment permanent after the Public Health Emergency (PHE) ends, if passed.
Right now, however, there is still widespread discrepancy in terms of which private insurers and self-insured or ERISA plans (Employee Retirement Income Security Act) will cover videoconferencing and audio psychotherapy, which insurers and ERISA plans will cover or waive co-pays, and which insurers and ERISA plans will pay for videoconferencing/audio therapy at the same rate as in-person therapy. While LCSWs used to feel frustrated by reimbursement rates, lack of coverage for more than once-a-week treatment, and treatment reviews for psychotherapy that has lasted more than a year, we now have a whole new set of frustrations. Of course, the anxiety we face about becoming infected or infecting others colors everything we do, rendering our insurance concerns less meaningful. So here are the issues that will determine whether the practice changes we have endured the past 4-6 months will become permanent, stay as ongoing new options, or be eliminated when the dangers of physical contact with others have waned.
One of the problems with predicting these issues is that states/jurisdictions are following such different trajectories in terms of the way COVID-19 is impacting the people who live there. “Hot spots” may be part of a state’s difficulty with the virus, while other areas are unscathed. Here is a website that can tell you what the risks are in your personal location: https://covidactnow.org/?s=37528
Our state and local governments are trying to create guidelines that will protect as many people as possible, mainly through physical distancing, hand washing, wiping down all high touch surfaces, and masks. That is the legal “frame”; we all still have to determine what we think is safe in doing our work in the present and moving forward. I have heard from LCSWs all over the country and the vast majority have been conducting psychotherapy through videoconferencing and telephonic means for the past 4-5 months.
Now I will address the confusion around insurance coverage of these new delivery systems.
What do we do when an insurer states they will cover the co-pays, pay the same amount for distance therapy as in-person therapy, describe which Point of Service (POS) code and modifier to use, and then fails to reimburse according to these stated policies? These problems are some of the most frustrating that we face. Spending hours tracking down provider liaisons about why our claim was denied, or paid at a lower rate, is painful and even scary. One remedy is to engage our patients in the process of finding out what their current co-pay coverage is; this is another area of confusion though. Some insurance plans have waived co-pays. Some are just returning to mandatory co-pays. The prudent LCSW will keep an updated list of POS and modifiers by insurer, easier said than done. How frustrating and annoying is this? Very. If (when) you find inconsistencies, let your insurance commissioner and attorney general know. This is the best way to get action on insurers’ failure to pay us what they have agreed to when we have complied with stated policies.
The Future of Telemental Health
As for the future: although Medicare will maintain coverage of the expanded videoconferencing and audio psychotherapy through October 23, the question remains whether or not private insurers will follow their lead. Their policy will impact most private insurers, according to my cloudy crystal ball. Since the current restrictions will be cut back state by state, it is hard to say when the Centers for Medicare & Medicaid Services (CMS) will decide there is enough safety to insist that Medicare beneficiaries be treated in-person. What I don't know is whether there will be an assessment of the videoconferencing and audio psychotherapy to determine whether they are as helpful as in-person treatment and how much more expensive it is to allow these forms of treatment to continue. There has been an explosion of bills in Congress that will make telemental health and audio only treatment permanent options for providing psychotherapy. CSWA will continue to work with Congress and other Federal agencies to preserve these options.
Expect to feel more fatigued doing telemental health. A couple of articles that outline the impact of doing all our work online are:
“Therapy During the Coronavirus Pandemic”, Cornwell, P., March 29, 2020, Seattle Times, https://www.seattletimes.com/seattle-news/health/therapy-during-a-pandemic-this-is-new-for-all-of-us/
“Therapists and Patients Find Common Ground: Virus-Fueled Anxiety”, Nir, S., New York Times, May 3, 2020, https://www.nytimes.com/2020/05/03/nyregion/coronavirus-therapy-nyc.html
Most of us have made some major readjustments to the ways we practice, which has been especially difficult for those of us who have been working in our offices for decades. Be kind to yourselves and find ways to give yourselves time to process these major changes to our professional lives, and accept the frustrating uncertainty we face about whether office practice will be safe in the near future. The dangers of feeling isolated as we work online from home, already a risk in office work, have increased. Try to remember you are not alone in dealing with the distress we all face and that this perilous time will eventually end.
Laura Groshong is the Director, Policy and Practice for the Clinical Social Work Association.
What Will “Normal” Psychotherapy Become?
With videoconferencing and (thankfully!) audio psychotherapy, the possibility that we will no longer be forced to maintain the distancing that led to these forms of practice is beginning to emerge. What we can expect in the near to later future is at best likely to vary from state to state and region to region. Even the savviest crystal ball is looking cloudy!
Telemental Health Changes and Challenges
I have heard from clinical social workers from all over the country: the vast majority have moved in the past two months to doing psychotherapy through videoconferencing and telephonic means. I think it is safe to say that, while LICSWs used to feel frustrated by low reimbursement rates, lack of coverage for more than once a week treatment, and treatment reviews for psychotherapy that lasted more than a year, we now have a whole new set of frustrations.
A major challenge right now is the widespread discrepancy in terms of which private insurers and ERISA plans will cover videoconferencing and audio psychotherapy, which insurers and ERISA plans will cover or waive co-pays, and which insurers and ERISA plans will pay for videoconferencing/audio therapy at the same rate as in-person therapy. Of course the anxiety we face about becoming infected or infecting others colors everything we do, effectively rendering our insurance concerns less meaningful. And somehow, despite change and challenge, chaos and frustration, we persevere and try to maintain our professional and personal lives.
What will our practices look like in another 8 weeks, in 6 months, in a year, or maybe three years from now? We have no idea. Different states are following very different trajectories based on the way COVID-19 is impacting the people who live there. Indeed, some states are coping both with “Hot Spots” and, at the same time, with areas which are not only unscathed but demanding a return to “normal”.
So far, our state and local governments have been trying to create guidelines that will protect as many people as possible, mainly through physical distancing, hand washing, wiping down all high touch surfaces, and masks. That is the legal “frame”; we all still have to determine what we think is safe in doing our work in the present and moving forward.
Future of Telemental Health
Moving forward, is there a future for telemental health? Most important, according to my admittedly cloudy crystal ball, will be whether Medicare decides to maintain the expanded videoconferencing and audio psychotherapy, once the current restrictions in physical distancing are removed. Medicare policy generally impacts all the private insurers. Current physical distancing restrictions will be cut back on a state by state basis, so it is hard to say when CMS will decide there is “enough safety” to insist that all Medicare beneficiaries be treated in-person. Or indeed, will Medicare make such a decision? Will they have collected data and assessed the impact of videoconferencing and audio psychotherapy to determine whether these formats are as helpful as in-person face to face treatment? Are these formats effective tools for short term relief of mental health problems? For long term changes sought? How do they compare for in-depth trauma related treatment? It seems likely, too, that there will be questions of how much more or less expensive it would be to allow these forms of treatment to continue, where appropriate and effective.
CSWA will continue to work with CMS, HHS, and other national organizations to preserve the options that we now have, insofar as they are appropriate and effective, even after the crisis has abated. As you know, the predictions of when that will occur range from 3 months to 3 years.
Dealing with Insurance Issues in the Here and Now
Meanwhile, what do we do when insurers state they will cover the co-pays, pay the same amount for distance therapy as in-person therapy, describe which POS code and modifier to use, and then fail to reimburse according to these stated policies? These problems are some of the most frustrating we face. Spending hours tracking down provider liaisons about why our claim was denied, or paid at a lower rate, is painful and even scary. One remedy is to engage our patients in the process of finding out what their current co-pay coverage is. Keep a list of POS and modifier guidance as it comes out, by insurer, and keep it updated. If you find inconsistencies, let your insurance commissioner and attorney general know. This is the best way to get action on insurers’ failure to pay us what they have agreed to when we have complied with stated policies.
In other words, use your own judgment about what practice system feels safe for you and your patients and let insurers know that they need to be consistent. And most of all - stay tuned.
Legal and Ethical Issues Raised by “Trust and Consequences”
The Washington Post published an article on February 15, 2015, called "Trust and Consequences", written by Hannah Drier. It is an excellent description of how immigrant minors are being seen by therapists, some of whom may be LCSWs, and then have their confidentiality violated while in detention or after leaving detention. You can find it at https://www.washingtonpost.com/graphics/2020/national/immigration-therapy-reports-ice/?utm_campaign=wp_evening_edition&utm_medium=email&utm_source=newsletter&wpisrc=nl_evening.
As with any potential ethical violation, it is prudent to start with the Code of Ethics (CSWA Code of Ethics, 2016): “Confidentiality b) Clinical social workers must know and observe both legal and professional standards for maintaining the privacy of records, and mandatory reporting obligations. Mandatory reporting obligations may include, but are not limited to: the reporting of the abuse or neglect of children or of vulnerable adults; the duty to take steps to protect or warn a third party who may be endangered by the client(s); the duty to protect a client from self-harm; and, the duty to report the misconduct or impairment of another professional. Additional limits to confidentiality may occur because of parental access to the records of a minor, the access of legal guardians to the records of some adults, access by the courts to mandated reports, subpoenas and court orders, and access by third party payers to information for the purpose of treatment authorization or audit. When confidential information is released to a third party, the clinical social worker will ensure that the information divulged is limited to the minimum amount required to accomplish the purpose for which the release is being made."
The underline is the relevant section because when the Office of Refugee Resettlement (ORR) takes custody of immigrant children they become in loco parentis or the guardian of the minors. This is the way that the right to privacy is circumvented by ORR. The article was about a minor who was taken into custody at 16 and stayed in custody for three years. In some states, the minor would have the right to decide to whom his personal information is disclosed at the age of 13 or above. In Texas where the minor was kept, there are very specific reasons for a minor consenting to treatment and nothing on whether the minor has the right to keep his record private:
Under the following circumstances, a minor may consent to his or her own medical, dental, psychological, and surgical treatment, including if he or she is one of the following:
This heart-breaking article shows how a minor who believed that the therapist he saw would keep his information confidential was emotionally harmed when this did not happen. CSWA will be writing a position paper on all the implications of this article for us as mental health professionals.
In the meantime, CSWA recommends sending the following message to your members of Congress. You can find their email addresses or contact information at https://www.congress.gov/members?searchResultViewType=expanded&KWICView=false . A suggested message is as follows: “I am a constituent and a member of the Clinical Social Work Association. Please take action to end the way that immigrant minors being held in detention have no right to confidentiality when seeing a clinical social worker for psychotherapy. This fundamental ethical principle of psychotherapy is currently being violated by the Office of Refugee Resettlement according to the Washington Post (see article at https://www.washingtonpost.com/graphics/2020/national/immigration-therapy-reports-ice/?utm_campaign=wp_evening_edition&utm_medium=email&utm_source=newsletter&wpisrc=nl_evening ). The process of psychotherapy becomes potentially traumatic without the right to confidentially. I would be happy to discuss this with you further.”
Please feel free to use your own language in this message. Contact me if you have questions or need more information. As always, let me know when you have sent your messages. Thank you for your attention to this important matter.
There is also a petition that is being sponsored by the Psychotherapy Action Network (PsiAN), an excellent group that CSWA has been working with for several years. Anyone who is interested in signing this petition can do so at https://www.thepetitionsite.com/379/862/396/tell-orr-and-ice-stop-using-psychotherapy-notes-to-betray-and-endanger-children/
The Clinical Social Work Association just held a very successful Summit in Alexandria on the fourth weekend in October. One of the topics discussed was the Advocacy Priorities for 2019. It was very helpful to the representatives of state Societies that attended, including Judy Gallant, LCSW-C, Chrissie Wallace, LCSW-C, and Margot Aronson, LICSW, representing Greater Washington. A new list of priorities will be developed in early 2020.
The Clinical Social Work Association's mission - Identity, Integrity, and parity - guides our advocacy. This year our advocacy priorities, in order of importance, are:
PO Box 711 | Garrisonville, VA 22463 | 202-478-7638 | firstname.lastname@example.org