ALLISON M. FUNICELLI, MPA, CCLA, ARM, CPHRM, DFASHRM
Assistant Vice President, Risk Management Group
AWAC Services Company, a member company of Allied World
The COVID-19 pandemic brought many changes to our lives – including uncertainty, upheaval and stress – which created numerous impacts on mental health. As a result, mental health professionals saw a greater demand for mental health services. The healthcare industry had to adapt, but what does that mean for the practicing psychiatrist?
The pandemic forced most providers to quickly move to a telemedicine platform to provide care to their patients. At the same time, many regulations were waived to allow providers to utilize telehealth, including waivers to licensing requirements.
As the pandemic emergency orders are coming to an end, what can we expect next? Psychiatrists should now be using a HIPAA compliant video platform and have a Business Associate Agreement with the vendor company. Audio only services should be limited, especially if prescribing controlled substances. Psychiatrists should keep up to date with state and federal regulations related to telemedicine.
During the pandemic, the Drug Enforcement Agency allowed prescribers to prescribe controlled substances when seeing a patient through an audio-visual, real-time, two-way interactive communication system without an in person medical evaluation. Psychiatrists should expect the requirements under the Ryan Haight Act to return.
Physicians also need to go back to following pre-pandemic regulations regarding appropriate licensing. Physicians are required to be licensed in the state where the patient is located at the time of the telemedicine visit. It is recommended that providers investigate the licensing requirements for each state where their patients are located. Several resources for finding licensure requirements are provided at the end of this article.
There are several pending bills in the House and Senate related to telehealth services. Issues still exist with the expansion of technology and funding related to telehealth. The Department of Justice is closely monitoring telehealth billing. Be aware of anti-kickback laws and Stark laws to avoid unintended violations. Practice owners need to be vigilant in the patient selection process to prevent physicians accepting patients into the practice for financial rewards.1
Increased Need for Mental Health Services
With the pandemic came an increase in the need for mental health services due to depression/suicidal ideation, increased use of drugs and alcohol, anxiety, isolation, and fear of illness, to name a few. As a result, a strain has been placed on the mental health system, stretching an already overextended industry of mental health professionals. The use of telemedicine has helped providers reach more patients, but resources are still limited. More patients are seeking mental health services than there are provider appointments available.
It is important to be mindful of the true capabilities of the practice and individual providers. Taking on too much can result in undue stress to physicians and their practice. The potential to overlook routine matters can increase the likelihood of unintended error. Understanding the limitations of a successful office practice is important. Making promises that cannot be delivered may increase the probability of unhappy patients leading to increased potential liability. Turning prospective patients away when the practice is full is a difficult task. However, tackling too much may take away from successfully helping those the practice can manage under less stressful conditions.
Another consideration is practicing within your scope and area of expertise. Sometimes a physician needs to make the difficult decision to refer the patient to another provider. Perhaps the telemedicine patient would be more suited for in-person care, but the practice has limited in-person appointments available. Some patients may need more intensive care than can be provided in your office setting. Preparing the patient for transfer to another provider can go a long way to decreasing stress to the patient. It also reduces the likelihood of a disgruntled patient that may lead to a licensing board complaint.
Setting expectations with patients is imperative when managing a successful office practice. Consider the prospective patient’s viewpoint of being placed on a long wait list. Limit the waitlist to a manageable number of people. Set expectations as to how long it may take for someone to move up the list. Provide prospective patients with recommendations on how to find a provider, such as their health insurer or the local mental health department. Again, setting expectations upfront is key.
Create written office policies that patients review, acknowledge and sign so there are “no surprises” later. These policies should include billing practices (including the No Surprises Act), appointment scheduling/no-show procedures and fees, processes for requests for records, requests for medication refills, etc.
Treating Children and Adolescents
The U.S. Surgeon General advised that the pandemic has had an unprecedented mental health impact on children, teens and young adults and has called for action to protect the health and safety of America’s youth. Prior to COVID-19, mental health challenges were the leading cause of disability and poor life outcomes in young people. Between 2007 and 2018, suicide rates among children and young adults ages 10-24 in the U.S. increased by 57 percent.2
With the onset of the pandemic, the mental wellbeing of children, teens and young adults deteriorated even further. It is important for psychiatrists to collaborate with the patient’s other treating providers, such as the patient’s primary care physician and psychotherapist, as each of these providers may have information to support the care and treatment plan. Teaching children and teens how to cope with their emotions is essential along with educating them on when and how to seek help. Creating a supporting environment in the family, school and community structures helps provide a multi-disciplinary support system. This is especially true for the LGBTQ+ youth, low-income youth, immigrant children, and children living in rural areas.3
Litigation and Licensing Board Complaints
Over the past several years, physicians reported they experienced an increase in patient complaints, requests for information and medical records, and subpoena and court ordered information/testimony. Healthcare workers were praised for being heroes during the pandemic, but as socio-economic changes have affected all aspects of people’s lives, the hero mentality has shifted. People have generally become stressed and frustrated. As a result, a patient may be more inclined now, than prior to the pandemic, to threaten a malpractice claim or licensing board complaint. There appears to be an increase in patients not paying for care provided or lodging complaints in an effort to push providers to offer payment refunds.
While, in general, claim frequency has remained relatively stable, claim severity (the cost of a malpractice claim) continues to rise.4 One of the best ways to combat against these issues is to utilize effective risk management strategies. Some of these strategies include:
- Creation of policies and procedures that the patient reviews and signs to avoid “surprises” during care. Examples include billing / payment expectations and referrals when a higher level of care is needed
- Reduction in cognitive bias
- Collaboration/consultation with other treating therapists/providers
- Following good prescribing practices including checking the prescription monitoring program before prescribing
- Obtaining written informed consent / informed refusal (e.g., when prescribing)
- Following up on ordered tests and test results
- Utilization of good documentation techniques
- Protection and advocacy for patient confidentiality
- Avoidance of boundary crossing
- Management of expectations
Consult your risk management professional and practice attorney when questions or issues arise. And remember: utilizing good risk management techniques decreases poor outcomes, improves patient satisfaction, decreases the chance of a medical malpractice claim or licensing board complaint, and increases your chances for a successful defense!
- Federation of State Medical Boards – https://www.fsmb.org/
- Center for Connected Health Policy – https://www.cchpca.org/
- U.S. Department of Justice. Drug Enforcement Administration. DEA Diversion Control Division COVID-19 Information – https://www.deadiversion.usdoj.gov/coronavirus.html
- Society to Improve Diagnosis in Medicine – https://www.improvediagnosis.org/
- U.S. Government Accountability Office (GAO) – Medicare Telehealth: Actions Needed to Strengthen Oversight and Help Providers Educate Patients on Privacy and Security Risks – https://www.gao.gov/products/gao-22-104454
2 Office of the Surgeon General. U.S. Surgeon General Issues Advisory on Youth Mental Health Crisis Further Exposed by COVID-19 Pandemic. December 2, 2021. HHS. https://www.hhs.gov/sites/default/files/surgeon-general-youth-mental-health-advisory.pdf
4 2021 Aon/ASHRM Hospital and Physician Professional Liability Benchmark Analysis, October 2021