25th anniversary of Olmstead v. L.C.
June 2024 marks 25 years since the U.S. Supreme Court decision in Olmstead v. L.C. (1999). This case was instrumental because it established that unnecessary segregation of persons with mental disabilities constitutes discrimination under the Americans with Disabilities Act (ADA) of 1999. The case was brought by two women with mental and intellectual disabilities who had been voluntarily admitted to a state psychiatric hospital in Georgia. Although their mental conditions stabilized while hospitalized, and their treatment providers determined that their needs could be met in community-based programming, the state continued their confinement. The women stated that the state’s failure to place them in community programs was a violation of Title II of the ADA, and the Supreme Court agreed. The case has stood for necessitating that public entities provide community-based services when appropriate.
California Supreme Court case regarding electroconvulsive therapy
The California Supreme Court will be hearing oral arguments on April 3 at 9:00 a.m. PT in Himes v. Somatics, an important case concerning concerning electroconvulsive therapy (ECT).
Learn more about the case here:
Confidentiality of substance use disorder patient records
In February 2024, the Department of Health and Human Services issued its Final Rule on new provisions for integrated care and confidentiality for patients with substance use conditions to align 42 CFR Part 2, addressing the confidentiality of substance use treatment records, with the confidentiality requirements of HIPAA. Please see the Final Rule and Fact Sheet for details.
Independent medical exams in L&I claims
Legislation passed in Washington state during the 2022–2023 session made changes to the independent medical exam (IME) process, including recording of mental health exams. The Washington State Department of Labor & Industries is in the process of rulemaking around recording of IMEs. A public hearing is scheduled for February 6, 2024.
US Supreme Court to decide case of expert admissibility
The U.S. Supreme Court heard oral arguments on January 10, 2024 in the case of Smith v. Arizona. It will be of interest to forensic experts because it involves a challenge to the admissibility of drug-analysis testimony when the testifying expert relied on data generated by a non-testifying expert. The case has implications for a wide-range of forensic experts.
The question before the Court: Does the Confrontation Clause of the Sixth Amendment permit the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a non-testifying forensic analyst?
For more information: Smith v. Arizona | Oyez
Changes to Federal Rule of Evidence 702
An amended Rule 702 for testimony by expert witnesses went into effect on December 1, 2023.
The new rule, as amended, states: A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
This reinforces the court as the “gatekeeper” and that the proponent of the expert testimony is tasked with establishing that the reliability requirements are met to a “more likely than not’ standard. This language also calls on the court to consider the conclusion the expert has drawn from their methodology.
Second Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications
The U.S. Drug Enforcement Agency, together with the Substance Abuse and Mental Health Services Administration (SAMHSA) issued a Second Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications. Key provisions include:
- The telemedicine flexibilities for prescriptions of controlled substances put into place during the Public Health Emergency (PHE) will remain in effect through December 31, 2024.
- These telemedicine flexibilities authorize practitioners to prescribe schedule II-IV controlled medications via audio-video telemedicine encounters, including III-V narcotic controlled medications approved by FDA for treatment of opioid use disorder via audio-only telemedicine encounters.
- This includes any practitioner-patient telemedicine relationships that have been or will be established up to December 31, 2024.
- New standards are expected by fall 2024.
Additional resource: DEA Extends Telehealth Flexibilities Another Year
New DEA training requirement: Effective June 27, 2023
In March 2023, the U.S. Drug Enforcement Agency (DEA) released details of a new training requirement for DEA-registered practitioners. The Medication Access and Training Expansion Act created a mandatory one-time, eight-hour training requirement for DEA registrants “on the treatment and management of patients with opioid or other substance use disorders.”
As of June 27, 2023, clinicians will be prompted to affirm completion of the new training requirement on their next scheduled DEA registration submission — whether an initial application or renewal. This is a one-time requirement and does not have to be repeated for subsequent license renewals.
Some clinicians will be exempt from the eight-hour training requirements, including those who are board-certified in addiction medicine or addiction psychiatry via the American Board of Medical Specialties, the American Board of Addiction Medicine, or the American Osteopathic Association. There are also some exemptions for recent graduates of medical, physician assistant, or advanced practice nursing schools who completed a comprehensive curriculum that satisfies the training requirement.
A number of organizations are providing training that can be used to fulfill the new DEA training requirement. Previous training completed as part of obtaining an X waiver may also be counted toward the requirement. The American Medical Association has resources and training links to help clinicians meet the requirement.