PA. SUPREME COURTS ADDS NEW TURF FOR CHILD SUPPORT WARFARE

In late 2022 the Supreme Court’s Domestic Relations Rules Committee recommended that the rules concerning unreimbursed medical expenses in support be revised. Yesterday, 28 months after the recommendation was advanced the Supreme Court amended Pa. R.C.P. 1910.16-6 in several important ways. The rule becomes effective in July.

The big change is mental health related expenses. Since the guidelines were first issued expenses for psychological and psychiatric care were not allocated based on incomes unless there was an agreement or judicial finding that the expenses were deemed “necessary.” Such a finding could be incorporated into either a support or custody order.

The new change is that the judicial finding/agreement element will be abandoned. Now, these expenses will be allocated based on relative incomes once any third party contribution has been processed (typically health insurance). The change is substantial because most third party contributions are carefully limited. Moreoever, care of this kind can run $100-250/ per session and most therapy comes in weekly increments. Thus, therapy at the average of $175/week where the parties have equivalent net incomes means an additional $375 per month in cost less any third party contribution. That comes in addition to the longstanding allocations of the health insurance itself, actual medical, dental, orthodontic and optometry costs.

In one sense, it can be contended this is a reasonable development. At a time when children are demonstrating extremely high rates of anxiety and a 10 year old Virginia child recently chose to end her life, there is little doubt that the need exists.  NCHS Data Brief, Number 471, June 2023

But the challenge here is one of management. In the child custody world, parents who have separated often disagree about this form of treatment. Sometimes those disagreements relate to stigma about psychological treatment. Other times it is a matter of cost or who has power in an evolving custodial arrangement. When children have high temperatures, blisters or lesions, it’s hard to contend that medical intervention is superfluous. But as we witnessed in the Columbine and Crumbley mass shooting cases, parents don’t seem to be able to measure when aberrant behavior warrants psychological attention. And then we have parents who think that therapy is good in all instances and breeze past matters of stigma and cost.

The old rule made the courts the arbiter. They could look at the behavior and weigh in stigma and cost as factors. They could be objective because the children involved weren’t their kids. Now, we seem to have a presumption that therapy is as necessary as any other form of medical care. A parent who believes therapy is not necessary has the burden to secure a court order to prevent it. Unless, of course, there is an order of joint legal custody, which some judges will construe to require consent. That’s a strained interpretation because joint legal custody is nearly universal and courts don’t re-write rules merely for the amusement of the bench and bar. The rule retains the power of trial courts to cap reimbursement expenses on an annual basis where they become unduly burdensome (Rule 1910.16-6(c)(2)) but that’s a barn door which this writer has never seen closed, i.e., written into a support oder.

Just as concerning is the fact that the new rule applies to all support recipients including the adults. Now, just about every lawyer I know endorses the idea that if clients can afford it, a few session to check in with a psychologist at the outset of a separation or divorce is a useful enterprise. But then we have clients who take a separation as a license to park themselves in weekly therapy for weeks or years at a time to cope with the “trauma” of their condition. Indeed, some of these folks have been traumatized. But many others employ psychologists and psychiatrists as a place to vent rather than to analyze and learn. The new rule removes the court as “regulator.” And, don’t be surprised that if I am going to have to pay 70% of my spouse’s weekly therapy, I will be employing one of my own and asking that he/she contribute 30% to my unreimbursed cost. Now, monthly therapy costs subject to allocation may be averaging $1,500 a month before we even descend to look at the childrens’ needs.

The cause is just. But the mechanism is going to cause lots of costly controversy. In the past when a client would ask about psychological support, the lawyer could ask intelligent questions about the issues and any treatment history to make a case for the expense to be included. The incomes of the parties would also be a substantial factor. Alas, the only question now will come from the client. “Can I get him/her to pay for my therapist?” Answer: Yes. Response: “Really?”

There are other changes to the rule as well. Apparently people have developed a habit of not showing or late cancelling medical appointments. And now medical providers charge for these failings. The rule has been amended to put that kind of charge “beyond the pale” of reimbursement. Not a bad thing, unless of course the appointment was missed because the car broke down or it was decided to make the trip to the emergency room instead because of complications.

Lastly, the Supreme Court has weighed in on brand name big pharma drugs versus generics and the generics have won. You may have a ‘script for Pfizer’s Lipitor but the new rule says reimbursement will be limited to Ranbaxy’s or Watson’s generic equivalent. The trouble here is that your physician may have a very sound reason to prescribe the more expensive medication. But, are you going to bring the doc to court to testify about the pharmacological basis for his or her choice? This may be important as we understand that there can be substantial cost differences between the top shelf pills and the ones down below.

We live in a world where people like to fight. In the past, the court was appointed the referee to help decide if the fight was worthwhile and to impose some rules of reason. Well, the ref just got fired although his new job will be to superintend the same battle by different means when the same parties sue for contempt because they weren’t reimbursed for these necessities.

The amended rule is here: Attachment – 106340022307633738.pdf