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. 2023;20(10–12):55.
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Reviewing the custody agreement informs the clinician on which parent can consent to treatment and whether the consent of one parent is sufficient. However, even if one parent can consent to treatment, you can ask that both parents consent if, in your professional judgment, doing so is in the best interest of your minor patient.
PRMS’ closed claims data show that suicide or attempted suicide and medications are consistently the top two reasons psychiatrists are sued for malpractice.
If the clinician has contracted to receive payment from a health plan, they may already be contractually obligated to disclose certain patient information to that health plan “for payment purposes.” The clinician should first review the terms of their contract, and if possible, release the minimum amount of patient information necessary. If the clinician has not contracted with the requesting health plan, they should notify the patient of the request and obtain authorization before releasing.
Under the Privacy Rule, the technology vendor is a Business Associate if it stores (for any amount of time, no matter how short) or has access to protected health information (patient demographic and medical information). A Business Associate must provide you with a Business Associate Agreement, documenting its promise to protect the confidentiality, security, and integrity of your patients’ information. Under the Security Rule, Business Associates must provide you with audit trails, documenting who has accessed protected health information, and must comply with all of the other Rule’s requirements. Pursuant to the Breach Notification Rule, Business Associates must notify you of any breach of protected health information. If you are not a Covered Entity, you will still need a confidentiality agreement, which could be in the form of a Business Associate Agreement.
At the beginning of treatment, educate your patients on the situations under which you are permitted to share confidential information, (e.g., safety of patient or others, mandatory reporting of child/elder abuse, mandatory reporting of impaired driving ability), and the reasons for these exceptions. Reassure the patients that you will only disclose the minimum amount of information necessary to achieve the intended purpose.
When obtaining informed consent, clinicians should clarify to the patient that the proposed treatment is an off-label use of the medication. Remember that prescribing a drug for any use other than that specifically approved by the United States Food and Drug Administration (FDA) constitutes an off-label use. Do not describe the use as “experimental” or “investigational,” as these terms do not accurately reflect the status of medications that have been approved by the FDA and are being prescribed for off-label use. Malpractice allegations related to the off-label use of medications would most likely claim a deviation from the standard of care in prescribing, administering, and/or monitoring of the medication and/or a lack of informed consent. Therefore, it is imperative that when prescribing medications for off-label uses, clinicians ensure that their practices in this area meet the applicable standard of care, are evidence-based, and that their documentation supports the medical treatment that was given.
Clinicians are responsible for meeting their patients’ clinical needs regardless of an outstanding balance. Clinicians should not withhold or pause treatment when a patient is unable or unwilling to pay their fee. Instead, they should discuss the outstanding balance and, if necessary, terminate the treatment relationship formally, providing adequate notice and a termination letter which includes referral resources, and meeting their clinician needs during the termination period.
It may be appropriate for such a “contract” to be one part of a comprehensive treatment plan, and it may be clinically relevant if the patient refuses to agree. However, it is the clinician’s responsibility to evaluate the patient’s overall suicide risk and ability to participate in the overall treatment plan.
Do not attempt to counter negative reviews by posting fake positive reviews. This practice is called astroturfing. One physician practice was fined $300,000 after the state Attorney General learned that staff members were posing as patients and writing glowing reviews in an effort to mitigate the poor reviews of real patients.
No information should be provided until the investigator forwards the request in writing, along with an authorization for the release of mental health information. Manage the investigator’s expectation regarding the time it will take you to process the request. In terms of how to answer the questions, the American Psychiatric Association has an excellent Resource Document available on its website (www.psych.org), entitled Psychiatrists’ Responses to Requests for Psychiatric Information in Federal Personnel Investigations. Finally, inform the patient how you will be answering the questions, and confirm that the patient would still like the information to be disclosed.