FILED WITH THE BOARD 0F a gnome p1. EXAMNERS CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY Attorney for Complainant Division of Law 124 Halsey Street 5th floor P.O.B. 45029 Newark, New Jersey 07101 By: Joan D. Gelber, Attorney ID 7981974 Senior Deputy Attorney General 'Tel. 973?648?2972 STATE OF NEW JERSEY OF LAW PUBLIC SAFETY DIVISION OF CONSUMER AFFAIRS BOARD OF EXAMINERS IN THE MATTER OF THE SUSPENSION: OR REVOCATION OF LICENSE OF L. BARRY HELFMANN, PSY.D. COMPLAINT LICENSE NO. BSSI 00124500 LICENSED TO PRACTICE IN THE STATE.OF NEW JERSEY CHRISTOPHER S. PORRINO, ATTORNEY GENERAL OF NEW JERSEY, by Joan D. Gelber, Senior Deputy Attorney General, with offices at 124 -Halsey Street, Newark, New Jersey 07101, by way of Complaint, says: GENERAL ALLEGATIONS 1. Complainant Attorney_General of New Jersey is Charged with enforcing the laws of the State of New Jersey pursuant to N.J.S.A. and 45:1?14 et seq. 2. The State Board of Examiners is Charged with the duty and responsibility to regulate the practice of in the State of New Jersey pursuant to J.S.A. e2 seg. 3. Respondent is the holder of license number 3581 00124500 and has been liCensed to pmactice during all times pertinent herein. 4. During all times pertinent to this matter, including but not limited to the year 1988 and to date, Respondent was engaged-in. the private practice of In addition, he is the Managing Partner of a group owning ?Short Hills Associates in Clinical (referred to herein as the ?Group?). The Group has a primary office at 28 Millburn Ave., Suite 1, Springfield, NJ 07081, and offers mental health services at branch offices through fourteen affiliated practitioners, including a social worker and two 5. N.J.S.A. 45:148?28 imposes a duty of confidentiality on licensed Rules of the Board of Examiner, including INHJ.A.C. enui N.J.A.C. implement the requirements of the statute and require a licensee to preserve the confidentiality of information obtained from a client/patient in the course of the licensee?s practice. 6. In addition to the Board law and rules regarding confidentiality, the American Association (APA) provides guidance to including but not limited to the 2010 publication, ?Ethical Principle of and Code of Conduct." That publication, in ?4.05, Disclosures, states in pertinent part that may obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. APA maintains an ongoing website for information. Respondent is a member of the APA . 7. The New Jersey Association (NJPA) also maintains a website where confidentiality questions can be addressed. Respondent is a member of NJPA. 8. The Group?s treatment charts for patients/clients, including those personally treated by Respondent, include a document captioned ?Terms and Conditions of Treatment." On this 2 standard form, the paragraph captioned ?Confidentiality" states: ?You have the right to privacy and confidentiality with your clinician. We abide by legal and ethical standards to maintain your confidentiality. Exceptions to this standard of privacy occur in the case of imminent risk or danger to oneself or others, child abuse or in the case of court order. Please discuss this matter further with_ your clinician." 9. Clients of Respondent, and of the Group of which he is the Managing-Partner, are asked to ?Agree to Treatment Under These Conditions.? The client is also asked to sign the Group?s ?Acknowledgment Of Receipt of ?Notice of Privacy of Individually Identifiable Health Information?". The Notice represents that it complies with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule (45 C.F.R. parts 160 and 164). It further states that [Dr. Helfmann] has given the client the ?Privacy Notice [which] is 51 few pages in length" and has the client sign to acknowledge that [Dr. Helfmann] has ?given you a copy of the Notice." 10. The ?Notice? document, which Respondent?s Group fails to preserve in the client?s chart, is captioned ?Notice: Privacy of Individually Identifiable Health Information.? It reiterates the assurances of confidentiality, except for limited exceptions under the law (none of which are applicable to the within Complaint). It further assures, ?We must make reasonable efforts to limit the disclosure to the minimum information necessary to accomplish the purpose of the use, disclosure or request.? 11. Provisions of pertinent to the ?Notice? include 953 ?164.506, which recognizes that protected health information may need to be disclosed for payment purposes, but may be disclosed only ?provided that such use or disclosure is consistent with other applicable requirements of this subpart." 3 CFR ?Minimum necessary applies. When using or disclosing protected health information or when requesting protected health information from another covered entity or business associate, a covered entity or business associate must make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure or request." HIPAA explicitly states that it does not preempt State law where the state?s protections are more stringent. N.J.S.A. and 12. Board rule N.J.A.C. in part, requires a licensee to prepare and maintain a permanent Client record which accurately reflects the client contact with the licensee in any treatment, evaluation or consultation setting. A licensee shall make entries in the client record contemporaneously' with the services provided. When' records are to be maintained as confidential the licensee shall establish and maintain a procedure to protect such records from access by unauthorized persons. 13. Board rule requires the licensee to inform clients of financial_ arrangements for' peychological services. Subsection ?10.12 specifies that the licensee?s bill shall include, in pertinent part, the dates and nature of professional services; diagnosis and insurance codes if required or requested (by or on behalf of the client). (Emphasis added) 14. BOard Rule requires that a licensee shall establish policies and procedures with respect to licensed or exempt personnel who are employed by or under the supervision of the licensee. The licensee?s responsibilities include, but are not limited to, designation of a licensed practitioner responsible for the professional propriety of billing; standards for recordkeeping as to calient records, billing' records; policies for? security, including confidentiality of client records. 4 COUNT 1 Failure to take reasonable measures to protect confidentiality of clients' protected health information. 1. Complainant repeats the General Allegations and incorporates them herein. 2. Respondent, individually and as Managing Partner.of the Group, utilizes a billing manager employed by the Group to handle issuance and collection of bills for services. 3. Respondent does not accept insurance payments. The Group's billing staff sends to the client a billing form containing the information which the client may use to submit to an insurance _companyl; that document includes the name of the individual responsible for payment of the bill, dates of claimed services and fees charged, and certain protected health information (PHI) such as the name of the client (who may be a child or other person not responsible for the bill), the mental health diagnosis, and the procedure (such as individual Respondent calls this document a ?true bill.? 4. Respondent, individually and as Managing Partner of the Group, has had clients who failed to pay their bills for services rendered by a practitioner affiliated with the Group. Many of the Group?s clients are children, for whom a parent/guardian was the responsible party. 5. For such circumstances, Respondent, individually and as Managing Partner of the Group, established a protocol whereby the Group?s billing manager refers the unpaid bill to a collections firm for potential suit. 1 N.J.S.A. 45:14am, N.J.A.C. and ?11.1 it; seg. permit an insured client to waive the privilege protecting confidentiality and authorize limited disclosure Ci 5 . 6. For at least the past 25 years, Respondent's protocol authorizedq directedq condoned ratified. the sending kn! his billing staff to the collections firm the ?true bill", thus disclosing patient identification, dates of service, CPT codes, diagnosis and creditor?s information. .7. Respondent failed to consider whether the CPT and codes, which his office provided to the collections firm, were protected by HIPAA or Board confidentiality requirements. Respondent did not review, personally or with the Group?s billing staff, whether the office should pmovide only the Transaction Ledger2 rather than the ?true bill" and whether any personal health information should be_redacted before referral for collection. 8. Respondent did not tell the collections firm that the ?true bill" contained personal health information; there was?never a discussion between Respondent or his partners with the collection firm regarding what could or could not be disclosed as personal health information. I 9. 'Moreover, Respondent did not request a copy of the Complaint, prior to its filing with the court, to assure that the factual allegations asserted therein were accurate, or to assure that only the minimum necessary personal health information was revealed in the public record.3 Respondent did not require the collections firm to provide a copy of each filed Complaint. certain protected health information to a third party payer. 2 Respondent?s Group also maintains billing records in the_ form of a transaction ?analysis"/ledger, which lists only dates of service, amounts charged and payments made; it contains no CPT procedure codes or diagnosis Codes. 3 HIPAA. rule ?164.502(l) allows a"covered. entity to disclose PHI to business associates and allows business associates to transmit PHI (n1 its behalf, if tine covered entity obtains satisfactory assurance that the business associate' will 6 10. In this manner, over the course of many years and into 2014, well over 70 public record complaints including the Complaint filed September 16, 2014 against Mr. P.S.4, were filed in the Superior Court of New Jersey on behalf of various practitioners in the Group. Review of an exemplar 15 court complaints, denominated ?On Contract", asserted an agreement by a named individual to pay agreed?upon fees for services, that services were rendered on specific dates, and that bills had been rendered but were unpaid despite demand. However, in addition to identifying the ?billed party"~defendant, each filed Complaint included an attached' ?Schedule 11. The ?Schedule attached to each Complaint, the Complaint filed against Mr. P.S., lists the Group practice name, the defendant's name, the date, the ?Transaction? listed as 45 minutes,? CPT code, place of service, diagnosis, . units, charge, and the total owed, and concludes with the name and license number and other identification of the Group?s treatment provider for that client. Where the recipient of the services was a child or person other than the person undertaking the debt that person's name was revealed as well. For example, the Complaint and Schedule A filed with the Court on behalf of the Group and of Respondent as treatment provider, against defendant Mr. J.B., revealed the young client diagnosis and treatment. Complaints were filed by other Group providers, against Mr. A.H. identifying child B.H, and against Ms S.R., identifying child O.C. and revealed diagnoses and treatment. appropriately safeguard the information. If State law is'nmme stringent, it preempts [Emphasis added]. 4 Clients of the Group referenced herein are listed only by initials to preserve confidentiality. Full identification has been provided to Respondent. 7 12. During the period 1988 and to date, Respondent made no effort to assure that the Complaints were redacted or were submitted under seal to protect confidentiality of personal health information. 13. At all times referenced herein, Respondent had, and has, a primary responsibility to keep a client?s care, treatment and diagnoses confidential, and to assure patients that their confidential information. will not. be. inadvertently .disclosed. 14. A client/patient of the Group has a reasonable expectation, ibased (Hi the several Privacy' documents signed. on intake, that diagnosis and treatment procedures would be protected as confidential. 15. Respondent has admitted that disclosure of personal health information, especially in the context of treatment, may expose the patient to effects on the client's reputation or business dealings. I 16. Respondent, as a licensed repeatedly failed to protect the personal health information of his own clients. In addition, under? his responsibility an; Managing' Partner? of the Group, he failed to protect the personal health information of over 70 clients of the multi?member Group, including but not limited to Mr. P.S., teenager S.B., child A.DV., and child DC. -17. Said conduct violated the requirements of N.J.S.A. 28, of including Board rule l8. Said conduct, singly or cumulatively, constitutes gross and repeated negligence and violation of N.J.S.A. and/or and Each instance constituted a separate transaction and a separate offense. COUNT 2 IntentiOnal failure to prepare and maintain a permanent client record. which accurately reflects each client contact for treatment purposes. 1. Complainant repeats the General Allegations and thoSe of preceding Count. 2. Respondent. billed. patient. Mr. P.S. 'for 65 ?treatment sessions on specified dates. I 3. Respondent prepared and preserved notes documenting only 46 of the billed dates. There are no notes for 18 sessions. 4. Respondent has admitted that he intentionally did not prepare and preserve notes of multiple sessions. 5. By failing to create notes to support charges for the billed dates, Respondent failed in his responsibility to justify his professional services. In addition. his failure to prepare and .maintain treatment notes constitutes failure to be accountable to the Board for assessing the quality and competence of his care. 6. The intentional failure to create and preserve notes of each session constitutes repeated failure to comply with N.J.S.A. 45:1w2l(h) including Board rules N.J.A.C. and and of accepted standards of treatment. I 7. Said conduct. singly or cumulatively, constitutes violation of N.J.S.A. and (h)l COUNT 3 Failure to maintain a client record of professional quality. 1. Complainant repeats the General Allegations and those of preceding Counts. 2. Such notes of treatment of client P.S. as Respondent preserved were scanty and negligently prepared. 9 3. Said deficiencies over-the extended period of treatment constituted failure to comply with N.J.S.A. including Board rule N.J.A.C. and accepted standards of care; 4. Said conduct, singly or cumulatively, constituted violation of N.J S.A. and COUNT 4 Failure to timely release treatment record on client request. 1. Complainant repeats the General Allegations and those of preceding Counts. 2. On or about January 10, 2015, client PLS., through his attorney, submitted a written request for a copy of his treatment record. 3. Respondent did not provide a copy of the record until March 3, 2015. . .4. . N.J.A.C. requires, in pertinent part, that a -licensee shall release a copy of the record, or an adequate summary which. adequately reflects the client?s history, treatment and billing records, no later than 30 days after receipt of the request from the client or duly authorized representative. The licensee shall not the record a summary from the c?ient?s attorney. 5. Respondent?s failure to timely provide a copy or summary of the client?s patient record violated including Board rule N.J.A.C. 10 we - Negligent failure to assure instruction and supervision of temporary office staff regarding confidentiality and preservation of records. 1. Complainant repeats the General Allegations and those of preceding Counts. 2. Respondent provided services to client 8.3. during' a period which commenced approximately May 2010 and continued through at least February 2012. 3. On Board subpoena, Respondent produced records claiming charges for eighteen treatment sessions but had notes for only five treatment sessions. 4. As to the absence of thirteen notes, Respondent asserted that in. November 20ll, as Managing Partner? of the Group, he employed temporary office staff to scan the records of clients, including 8.8., into an office computer program. Respondent asserted that many records of treatment sessions of 8.8. were lost when. the ?temporary' staff failed t1) copy' the reverse sides of Respondent?s handwritten notes; the omissions Were not recognized and the original records have been destroyed. 5. The hiredq clerical staff were not asked. to sign. any agreement to maintain confidentiality of the records. In addition, their work was not supervised for accuracy and reliability. 6. Respondent failed to take reasonable measures to assure confidentiality and security of the records for preservation and for accountability to the Board, and failed to comply with N.J.S.A. including Board rule N.J.A.C. 13:4277.7 and 7. Said conduct constitutes repeated negligence, in violation of N.J.S.A. and 11 WHEREFORE, Complainant demands the entry of an Order against Respondent including the following: 1. The suspension or revocation of the license heretofore issued to Respondent to practice in the State of New Jersey, or such other disciplinary sanction as shall be found appropriate in the circumstances, in accordance with N.J.S.A. 45:1? 21; 2. Imposition of maximum penalties on Respondent for each separate unlawful act as set forth in Counts 1 through 5 above, pursuant to N.J.S.A. 45:l~25; 3. Imposition of costs of investigation and of fact witnesses, expert witness fees and costs, 'attorney fees and costs, and transcript costs, in accordance with N.J.S.A. 45:1~25{ 4. Direction to cease and desist from the unlawful conduct proved, and to take such affirmative corrective action as may be deemed necessary by the Board, in accordance with N.J.S.A. 45:1? 22(c); and 5. Ordering such other and further relief as the Board of Examiners shall deem just and appropriate. CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW By: Joan D. Gelber Senior Deputy Attorney General Date: April 7, 2017 12