Waiving the Copayment: Part 1

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Avoiding Liability Bulletin – October 2010

If a patient with insurance coverage is unable to afford his or her portion of the fee (the copayment) as specified in the policy, is it okay for the practitioner to waive, in advance, the patient’s copayment? The short answer is “no.” To do so might constitute insurance fraud. Most insurers would likely come to that conclusion. The practitioner would, in a sense, be conspiring with the client to facilitate the client’s breach of the insurance contract. The purpose of the copayment is to place some responsibility on the patient to control costs. If the patient did not have to pay anything, there is, the theory goes, no incentive to control costs. Someone else is paying the freight! By waiving the copayment in advance, the therapist or counselor is in essence agreeing to see the patient for a specified amount of money, but is misrepresenting the amount billed to the insurance company.

When confronted with this information, therapists have reported to me that many of their colleagues engage in this practice. When you get a speeding ticket for going 70 miles per hour in a 60 mile per hour zone, the police officer and the judge will not be impressed with the argument that many cars were passing you – that is, everyone was going at least 70! Some therapists have indicated that an insurance company representative said that it was alright to bill in this manner. My response is: try to find the representative again and get him or her to put the advice or opinion in writing – or try to bring him or her into court to testify at your trial or hearing! If you are able to obtain advance permission from the insurer to bill in this manner (waiving the copayment in advance), and you are able to get this permission in writing from someone who has the apparent authority to make such a decision, then such billing is less or non-problematic.

To read our next bulletin regarding waiving a copayment, click here.

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Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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