Risk Management: Fact or Fiction

| October 1, 2021

by Donna Vanderpool, MBA, JD

Ms. Vanderpool is Director of Risk Management at Professional Risk Management Services (PRMS)

FUNDING: No funding was provided for the preparation of this article.

DISCLOSURES: The author is an employee of PRMS. PRMS manages a professional liability insurance program for psychiatrists.

Innov Clin Neurosci. 2021;18(10–12):38–39.


Questions

1. A clinician’s former patient has posted a scathing online review of the clinician, their practice, and their treatment. The clinician feels they must respond to the post, given the ridiculous lies, but knows they are limited in exactly what can be said due to confidentiality. However, since the patient shared in the post that she was in treatment with the clinician (making the fact of treatment no longer confidential), the clinician believes they can address the patient’s false statements by posting a response.

What do you think—fact or fiction?

2. When parents continue to pay for services once a patient turns 18 years of age, they continue to have access to patient information the same as when the patient was a minor. 

What do you think—fact or fiction?

3. You can terminate care with a patient without abandoning the patient. 

What do you think—fact or fiction?

4. A patient invited you to invest in an innovative project that you fully support. Your only contribution would be financial—you would not be providing any type of service. Before agreeing, you pondered whether this arrangement could be seen as some type of boundary violation, but you decided no, as your involvement would be purely financial, and certainly nothing of a personal or sexual nature.

Boundary violations have to involve some kind of personal relationship (which is usually sexual) between the clinician and the patient.

What do you think—fact or fiction?

5. All clinicians are covered entities under Health Insurance Portability and Accountability Act (HIPAA), so all clinicians are subject to government enforcement for violations of HIPAA’s Privacy and Security Rules.

What do you think—fact or fiction?

6. You see your patient on the news—law enforcement is looking for him and asking anyone with any information about who he is to contact the Federal Bureau of Investigation (FBI). They say he should be considered dangerous.

The correct next step here is to contact law enforcement. 

What do you think—fact or fiction?

7. If a patient is nonadherent to your treatment plan (e.g., does not take medications as prescribed, does not keep regular appointments, fails to obtain necessary labs, etc.) and this then results in care that does not meet the standard of care, you should still continue to treat them to the extent they will allow. Even if you are not meeting the standard of care, it is better than the patient not receiving any treatment. 

What do you think—fact or fiction?

8. Once the federal COVID Public Health Emergency ends, the Ryan Haight Act requires, with very few limited exceptions, an initial in-person examination prior to prescribing controlled substances, and subsequent in-person visits every two years.

What do you think—fact or fiction?

9. Health plans’ utilization review guidelines can evidence the standard of care.

What do you think—fact or fiction?

10. Psychiatrists are more likely to be sued or have a claim (a demand for money outside of litigation) brought against them than have an administrative action (an investigation by a regulatory agency) brought against them.

What do you think—fact or fiction?


Fact or Fiction: Answers

Innov Clin Neurosci. 2021;18(10–12):47.


Answers

1. Fiction! 

Even though a patient has told the entire world about your treatment in an online post, you cannot acknowledge that the reviewer was treated by you. For more information, click here to access “10 Things to Know about Online Reviews.”

2. Fiction! 

Once a patient turns 18 years of age, parents no longer have the right to access the patient’s record, even if they continue paying for treatment. Once a patient turns 18:

  • To release information to parents, even if they are continuing to pay for your services, you need the patient to authorize such release.
  • If parents had access to the patient’s records on your patient portal, be sure to discontinue that access.
  • Remember to get informed consent from the now adult patient for all medications, even those the patient is currently taking.

3. Fact! 

By following the proper termination process, including notice to the patient (which varies by state, but typically is 30 days), providing referral resources, and confirming the termination in a letter, etc., you can terminate treatment with a patient and avoid a finding of abandonment. For more information on this topic, you can view our article here. 

4. Fiction! 

Boundary violations are not limited to sex and other personal relationships. Over the years, boundary violations have always made it to our list of top causes of actions brought against our insured clinicians—and not at the bottom of the list! Cases involving sexual allegations make up only a part of these.

Boundary violations can result from numerous types of “multiple” or “dual” relationships. Such relationships can occur anytime a clinician relates to patients in more than one relationship, whether professional, social, or business, in addition to being in the treatment relationship.  Multiple or dual relationships can lead to allegations of taking unfair advantage of the treatment relationship to exploit or otherwise further the clinician’s personal, religious, political, or business interests. As a general rule, once you are the patient’s clinician, that is all you should be.

Even if the clinician has only the best of intentions, if something goes wrong, there will be allegations that there were nontherapeutic motivations involved.

5. Fiction!

Not all clinicians are covered entities under HIPAA. Covered entities are only those healthcare providers who do specific transactions electronically with health plans. The most frequent electronic transaction done with health plans is the electronic transmissions of claims forms for payment, whether by the provider or by a billing service on behalf of the clinician. There are several other transactions, such as checking on referrals and preauthorizations, that, if done electronically with a health plan, make a provider covered under HIPAA, meaning they must comply with HIPAA. The government has a decision tool available here to help you determine if you are a covered entity. However, keep in mind that there are additional confidentiality laws, such as state confidentiality law, that must be complied with even if you are not a covered entity under HIPAA.

6. Fiction! 

When you learn that your patient is being sought by law enforcement, the correct next step is to contact your risk manager or professional liability insurer. The exceptions to patient confidentiality are very limited. It is possible in this case that you could be contacted by law enforcement, as well as the media. Do not speak to the media, and do not assume that law enforcement is entitled to any patient information, regardless of what the investigators may say. For more information on this, see our article “When Your Patient Makes the News.” 

7. Fiction!

We often face reluctance from clinicians when we discuss terminating with a patient who has been nonadherent with the treatment plan. If the patient will not agree to the treatment plan and will not let you provide treatment that meets the standard of care, that generally is not a treatment relationship you can stay in. Substandard care, in terms of liability, is not better than no treatment.

Before terminating the treatment relationship, you may want to consider the cause(s) of nonadherence; for more information, see our article.

8. Fiction!

There is no requirement for subsequent in-person visits in the Ryan Haight Act. The only in-person visit requirement is before prescribing the controlled substance. However, subsequent in-person visits may be clinically necessary or legally required under state law. For more information, see our new resource “Five Things to Know about the Ryan Haight Act.” 

9. Fiction!

While clinical practice guidelines can definitely be used to determine the applicable standard of care, the same is not true of utilization guidelines from payers. Clinical practice guidelines are authoritative guidelines and are developed by professional organizations, such as the American Physicians Association (APA) and the American Academy of Child and Adolescent Psychiatry (AACAP). Also, following the guidelines does not necessarily mean there is no negligence. The reverse is also true; not following the guidelines does not automatically mean there is negligence. Guidelines are just one of many factors that can be used to determine the applicable standard of care. Your professional judgment is always determinative. If you decide to deviate from an authoritative guideline, your reasoning for that determination should be documented. For our resource on the standard of care, visit our article here. 

10. Fiction! 

Psychiatrists are more likely to have an administrative action brought against them than a claim or lawsuit continued in 2020. Based on our program’s data, 60 percent of all incoming actions in 2020 were administrative actions, versus 40 percent that were claims and lawsuits. 

Psychiatry is a regulated profession, with many federal and state agencies as regulators. While the vast majority of these administrative actions were brought by state licensing boards, other relevant agencies include the Department of Health and Human Services (enforces HIPAA) and the Drug Enforcement Agencies.

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