PIEKARSKY ASSOCIATES LLC FILED Scott B. Piekarsky, Esq. (026161986) 191 Godwin Avenue, Suite 9 APR 07 Wyckoff, New Jersey 07481 KATHERINER.DUPUIS Tel: 201?560?5000 RICH Fax: 201?560?1440 Attorneys for Plaintiff: Dr. Barry Helfmann, Psy.D. DR. BARRY HELFMANN, Psy.D., SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION: UNION COUNTY Plaintiff, DOCKET NO.: UNN-C- 51 17 CIVIL ACTION STATE BOARD OF EXAMINERS, AND JOAN D. GELBER, VERIFIED COMPLAINT ESQ. Defendants. Plaintiff, by way of Verified Complaint against the Defendant, says: THE PARTIES 1. Plaintiff, Dr. Barry Helfmann, Psy.D. Helfmann?), is a licensed in the State of New Jersey. He maintains an office with partners in the Township of Springfield in the County of Union, and the State of New Jersey. 2. Defendant State Board of Examiners (hereinafter the ?Board?), licenses and regulates in the State of New Jersey and maintains an office in the City of Newark, County of Essex, and State of New Jersey. FACTS RELEVANT TO ALL COUNTS 3. Dr. Helfmann is a renowned Among his many awards and memberships, he is a Diplomate in Clinical awarded through the American Board of Professional and a Distinguished Fellow of the American Group Association. Dr. Helfmann has served as President of the New Jersey Association, President of the New Jersey Group Association, Chairman of the National Board of Certified Group Secretary of the American Group Association, and Chairman of the Annual Conference of AGPA, 2008?2012. He was also been awarded of the Year from the New Jersey Association. 4. Dr. Helfmann has maintained an unblemished record as a licensed throughout his career. He has successfully assisted and counseled countless individuals, families and groups. 5. In 2014, Dr. Helfmann attempted to reconcile a past?due patient account with one of his patients. When. attempts to reconcile directly with the patient failed, Dr. Helfmann had no choice but to turn the patient account over to his attorneys to pursue debt collection. 6. Unbeknownst to Dr. Helfmann, his attorneys (whom he is now suing) attached the patient?s unredacted medical invoice to the debt collection complaint filed in the Superior Court of New Jersey. 7. Afterwards, an article was published in the New York Times entitled Patient is Sued, and His Mental Health Diagnosis Becomes Public" (hereinafter, the Article?). The story was picked up and published by local newspapers, NPR radio, websites, etc. 8. Joan Gelber, Esq., Senior Deputy Attorney General representing the Board of Examiners then contacted Dr. Helfmann and indicated that she was investigating a matter. When Dr. Helfmann asked Ms. Gelber if the investigation was related to the NYT Article, she answered affirmatively. 9. The investigation was improper since the events that gave rise to the NYT Article were entirely proper and authorized by the regulations adopted kn! State Board Examiners which permitted Dr. Helfmann to provide his attorneys with the patient information in order for the attorneys to institute a debt collection action. 10. That is, Dr. Helfmann was permitted to, and did, consider his attorneys as ?authorized representatives" under N.J.A.C. (Access to Copy of Client Record) which provides: a) For purposes of this section, ?authorized representative? means, but is not necessarily limited to, a person designated by the client or a court to exercise rights under this section. An authorized representative may be client's attorney or an agent of a third party payor with whom the client has a contract which provides that the third party payor be given access to records to assess a claim for monetary damages or reimbursement. 11. The investigation was also improper because it went well beyond the bounds of the substance to be investigated the allegations giving rise to the NYT Article) and was an open?season? investigation into the record keeping, policies and procedures, and other practices of Dr. Helfmann?s office. 12. As a result of the improper investigation, the Board improperly and unfairly contends in a five-count Complaint against Dr. Helfmann 'that he has, inter? alia, breached. his duties of confidentiality and ethics by providing patient past due account records to his authorized representatives (his attorneys) in order to proceed with a collection of a debt. 13. In the Complaint, the Board improperly (and without legal authority or jurisdiction) contends that Dr. Helfmann has violated HIPAA, a federal statutory scheme aimed at protecting personal health information that is transmitted electronically. 14. In this case, at the time of the underlying events, neither Dr. Helfmann nor his practice were ?Covered Entities? under HIPAA since they did not transmit PHI electronically. In fact, The Board acknowledges this in the Complaint when it alleges that ?Respondent does not accept insurance payments.? 15. If HIPAA does not apply, then neither does ?minimum necessary? limiting provisions incorrectly cited by the Board in its Compliant. 16. In the Complaint, the Board alleges that Dr. Helfmann ?engaged in a pattern of unlawful conduct warranting disciplinary 4 action? and seeks the suspension or revocation of Dr. Helfmann?s license and imposition of ?maximum penalties?. 17. Dr. Helfmann did not engage in any unlawful conduct. Rather, he ciui what Ema was permitted to (my treat his attorneys as authorized representatives and supply them. with relevant information to collect a debt). 18. The Board has mischaracterized Dr. Helfmann?s actions and engaged in an improper investigation, resulting in an improper Complaint and the denial of Dr. Helfmann?s constitutional rights. 19. Additionally, a representative of the Division of Consumer Affairs, another state agency also represented by the N.J. Attorney General?s office, stated that this practice targeted by Defendant was totally legal and proper. 20. Hence, the conduct of Defendant?s is arbitrary and capricious, unlawful and a violation of Plaintiffs legal and civil rights. COUNT ONE Violation of Substantive Due Process 20. Plaintiff repeats and reiterates the allegations of the preceding paragraphs as if fully set forth herein. 21. Plaintiff, as the owner of his license, has a property interest that is protected by the United States Constitution and the New Jersey Constitution. 22. Owners such as Plaintiff cannot be deprived of their property interests in violation of the Substantive Due Process 5 Clause of the of the Fifth and Fourteenth Amendments of the United States Constitution (the ?Due Process Clause?) made applicable to the States through the Fourteenth Amendment. 23. As a direct and proximate result of the Board?s improper investigation and resulting Complaint, Dr. Helfmann has sustained significant reputational damage, economic loss, and had to resign from a coveted and compensated position with the New Jersey Association as a result of Defendant?s conduct. 24. Plaintiff?s right to earn a living has been (and continues to be) denied and impeded. 25. Plaintiff?s rights to substantive due process have been denied by the wrongful conduct of the Defendant. WHEREFORE, Plaintiff demands judgment against Defendant for: a.injunctive relief requiring a dismissal of the Complaint I with prejudice; b. temporary, preliminary and permanent injunctive relief requiring all Board investigatory documents, originals and duplicates, as well as all communications, electronic and otherwise, which relate in any way to the investigation, to be preserved; c.compensatory damages; d.attorney?s fees and costs of suit; and e. such other relief which the Court deems equitable, appropriate, and just. COUNT TWO Violation of The Equal Protection Clause 26. Plaintiff repeats and reiterates the allegations of the preceding paragraphs as if fully set forth herein. 6 27. Plaintiff, as the owner of his license, has a property interest that is protected by the United States Constitution and the New Jersey Constitution. 28. Owners such as Plaintiff cannot be deprived of their property interests in violation of the Equal Protection Clause of the Fifth Amendment of the United States Constitution (the ?Equal Protection Clause?) made applicable TX) the States through the Fourteenth Amendment. 29. The Board has violated and continues to violate Plaintiff?s rights, as a class of one, under the Equal Protection Clause by intentionally treating him differently than others similarly situated for no rational basis in law or fact. 30. As a (direct and. proximate result, Dr. Helfmann. has sustained significant reputational damage and economic loss. WHEREFORE, Plaintiff demands judgment against Defendant for: e.injunctive relief requiring a dismissal of the Complaint with prejudice; f. temporary, preliminary and permanent injunctive relief requiring all Board investigatory documents, originals and duplicates, as well as all communications, electronic and otherwise, which relate in any way to the investigation, to be preserved; g.compensatory damages; lL attorney?s fees and costs of suit; and e. such other relief which the Court deems equitable, appropriate, and just. COUNT THREE Breach of Code of Ethics 31. Plaintiff repeats and reiterates the allegations of the preceding paragraphs as if fully set forth herein. 32. The Board is bound by the standards of conduct set forth in N.J.S.A. et seq. and the Supplement Code of Ethics adopted by the Department of Law and Public Safety (the ?Supplement?). 33. Section II (General Standards of Conduct) of the Supplement, Part A (General Duties), provides that ?An officer or employee shall have the duty to: 1. Hold office or employment as a public trust and strive to preserve and protect the public's confidence in the Department's fair and impartial execution of its duties and responsibilities. 2. Support the Constitution of the United States and the Constitution of the State of New Jersey and comply with the laws of the United States and the laws of this State and its political subdivisions. 3. Make decisions in connection with official duties on a fair and impartial basis 6. Perform duties with professionalism and with courtesy to other officers and employees and the public.?. 34. In violation of these duties and responsibilities, the Board has not executed their duties and responsibilities fairly or impartially; has :not supported 11KB Constitution (If the United States or the Constitution of the State of New Jersey; has not made decisions in connection with official duties on a fair and 8 impartial basis; and has not performed their duties with professionalism or courtesy to Dr. Helfmann. 35. As a direct and proximate result, Dr. Helfmann has been and continues to be injured. WHEREFORE, Plaintiff demands judgment against Defendant for: i.injunctive relief requiring a dismissal of the Complaint with prejudice; j. temporary, preliminary and permanent injunctive relief requiring all Board investigatory documents, originals and duplicates, as well as all communications, electronic and otherwise, which relate in any way to the investigation, to be preserved; k.compensatory damages; l.attorney?s fees and costs of suit; and e. such other relief which the Court deems equitable, appropriate, and just. COUNT FOUR Legal Malpractice 36. Plaintiff repeats and reiterates the allegations of the preceding paragraphs as if fully set forth herein. 37. Violation of Rules of Professional Conduct has been found to be competent evidence of legal malpractice in this State. 38. In violation of the ethical duties and responsibilities, Defendant Gelber has not acted fairly or impartially; has not supported the Constitution of the United States or the Constitution of the State of New Jersey; has not counseled decisions in connection with official duties on a fair and impartial basis; and has not performed their duties with professionalism or courtesy to Dr. Helfmann. 39. More specifically, Defendant Gelber has committed legal and ethical breaches as set forth within. 40. Plaintiff was contacted by Joan D. Gellber, Esq. a Deputy Attorney General (DAG) who represents the N.J. State Board of Examiners. She said she was investigating a matter brought to her attention and she subpoenaed various case records, collection and office procedures. She subpoenaed him as a representative of Short Hills Associates In Clinical and asked that he appear before the Board. We asked if the inquiry related to a N.Y. Times article relative to a complaint filed by one of my patients. She responded in the affirmative. However, once we met with her and the Board it was clear that she mispresented what the inquiry was about. It was mostly unrelated to the article and an uncontrolled and unguided inquiry into many aspects of Plaintiff?s practice that we were unprepared to address. This was an utter and complete violation of our due process rights. 41. In this regard, she violated RPC 4.1 Truthfulness in Statements to Others by making a false statement to Plaintiff of material fact. See, RPC 4.1 (1). She purposely misrepresented what the inquiry would be and now seeks to charge us with regulatory violations unrelated to the article regarding record keeping and other issues. 10 42. In addition, Defendant Gelber is pressing and pursuing serious regulatory violations claiming violations of HIPAA, a Federal Statute. She has no legal authority to pursue HIPPA violations and is seeking related admissions, sanctions and fines. There is a violation of RPC 3.1 on Meritorious Claims and Contentions. This RPC prohibits an attorney from asserting an issue where there is no basis legal authority to pursue Federal claims. That is left to HUD. She is improperly asking for discipline and monetary penalties on this frivolous claim. 43. Defendant Gelber?s conduct also violates RPC 4.4 entitled Respect for Rights of Third Persons. That RPC prohibits a lawyer from using means to burden a third person or using methods of obtaining evidence that violate the legal rights of such a person. Defendant Gelber has begun an aggressive campaign to sanction and punitively fine Plaintiff. 44. As far as we are aware, on information and belief, there is a complaint out there, still undisclosed, because Plaintiff?s prior collection lawyers included diagnosis and treatment codes on a bill attached to a civil complaint. Plaintiff did not authorize nor approve c?f our collections lawyers including the CPT and Diagnostic Codes. Because of this, Defendant Gelber wants us to agree to a reprimand and tens of thousands of dollars in penalties. ll 45. Defendant Gelber' charged HEB with aa violation (If not releasing case records that ea patient requested ill 30 days as required. She never asked him about this when Plaintiff testified. This is a major mistake on her part as this request never was made of him. She refused to remove the charge. 46. Defendant Gelber charged and alleged practice violations for not having written office procedures. The regulations require procedures ibut do not mention the 'word ?written?. Plaintiff?s practice has extensive office procedures. 47. Defendant Gelber also uses inflammatory language in a proposed consent order which is not called for and inappropriate. 48. However, through unethical conduct as described, Defendant Gelber continues to pursue Plaintiff and to date he has no true indication of what even really triggered the inquiry. All he knows at this point is that if he does not agree and admit to her claims, she will be filing a licensing board complaint against him. Hence, these will be continuing RPC violations to Plaintiff?s detriment. 49. These violations have directly and proximately caused injury (and continue to cause injury to) Dr. Helfmann. WHEREFORE, Plaintiff demands judgment against Defendant for: 1n.injunctive relief requiring a dismissal of the Complaint with prejudice; n. temporary, preliminary and permanent injunctive relief requiring all Board investigatory documents, originals and duplicates, as well as all communications, electronic and 12 otherwise, which relate in any way to the investigation, to be preserved; o.compensatory damages; p.attorney?s fees and costs of suit; and e. such other relief which the Court deems equitable, appropriate, and just. Negligence 41. Plaintiff repeats and reiterates the allegations of the preceding paragraphs as if fully set forth herein. 42. The Defendant Board and Defendant Geller owed a duty to Dr. Helfmann to conduct the investigation with fairness, thereby investigating the matters allegedly complaint of, and not engaging in an open?season investigation into the practices of Dr. Helfmann?s office. 43. In violation of this duty, the Defendant Board and Defendant Gelber did not engage in a fair investigation. Instead, it investigated matters that had not been complained of and went beyond the bounds of the investigation that was represented to Dr. Helfmann the Board investigated matters beyond those that gave rise to the NYT Article). 44. The Defendant Board and Defendant Gelber had a duty to Dr. Helfmann to apply the correct legal standards in the Complaint against him. 45. The Defendant Board and Defendant Gelber violated that duty when it misapplied HIPAA, a federal statutory scheme. HIPAA l3 is not applicable in this case since Dr. Helfmann did not transmit The Defendant Board and Defendant Gelber failed to undergo a rudimentary legal analysis to determine if Dr. Helfmann or his practice were even ?Covered Entities" under HIPAA, which they are not. 46. In fact, the Defendant Board and Defendant Gelber alleges in the Complaint that ?Respondent does not accept insurance payments.? 47. As a direct and proximate result of these breaches, Dr. Helfmann has been, and continues to be, injured. WHEREFORE, Plaintiff demands judgment against Defendants for: q.injunctive relief requiring a dismissal of the Complaint with prejudice; r. temporary, preliminary and permanent injunctive relief requiring all Board investigatory documents, originals and duplicates, as well as all communications, electronic and otherwise, which relate in any way to the investigation, to be preserved; s.compensatory damages; ?t.attorney?s fees and costs of suit; and e. such other relief which the Court deems equitable, appropriate, and just. CERTIFICATION PURSUANT TO RULE I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule l4 CERTIFICATION PURSUANT TO RULE 4:5-1 With the exception of the Complaint to be filed by the Board of Examiners against Dr. Barry Helfmann, Psy.D. and a current Complaint pending in the Superior Court of New Jersey, Law Division, Union County, entitled Short Hills Associates in Clinical et. al. v. Rothbard, et. al., docket No. UNN- the matter in controversy is not the subject of any other action pending iJ1 any other Court. There are Ix) pending arbitration proceedings. No other action or arbitration proceedings are contemplated. No non-party is known who would be subject to joinder because of potential liability. Piekarsky Associates, LLC (g 2017 15 04X05f201? 18:20 CERTIFICATION OF VERIFICATION 0F COMPLAINT I, Dr. Barry Helfmann, Psy.D., of full age do hereby certify as follows: I am the E?aintiff in the above-captioned matter. I have read 'the foregoing ?Verified lComplaint. I certify 'that to the best of my knowledge the facts alleged herein, with the exception of those stated on information and belief, are true and c0rrect. I certify that the foregoing statements made by me are true. I am aware that if any are willfully false, I am subject few. emf/QM r70 ITEarry? elfmanU sy. D. to punishment. 5' .2017 17