Managing Outpatient Behavioral Health Risks
Allison Funicelli, MPA, CCLA, ARM, CPHRM, FASHRM

Assistant Vice President, Risk Management Group
AWAC Services Company, a member company of Allied World

Understanding the risks associated with practicing in an outpatient behavioral healthcare environment can go a long way toward avoiding a medical malpractice lawsuit or licensing board complaint. While psychiatry is one of the least sued medical specialties, the risk is not zero. For a plaintiff to succeed in a medical malpractice case, they must prove there was a duty owed to the patient, there was a breach in the standard of care related to that duty, and there are compensable damages caused by that breach.

Outlined below are common outpatient risks that may result in a medical malpractice claim or licensing board complaint. While each of these risks could be an article unto themselves, this article provides an overview of each of these risks for the psychiatrist to consider in their office practice.

Prescribing

  • Which medications are best suited for children and adolescents?
  • Are there black box warnings or is the medication prescribed in an off-label manner?
  • How will the medication affect the patient in conjunction with other medications the patient is taking, especially in the elderly population?
  • Is the medication contraindicated for pregnant patients, or patients who are attempting pregnancy?
  • Will the medication have any effect in patients who use street drugs, herbal or dietary supplements?
  • Is it appropriate for the patient to receive an opioid and/or controlled substance medication?
  • What medications can be legally prescribed across state lines?

documenting conversationIt is important to address these issues with the patient and confirm their full understanding of the risks, benefits and side effects of the medication prescribed, including the potential dangers of mixing these medications with contraindicated medications and other substances. Remember, having the informed consent discussion is not a one-time discussion and the review for potential side effects should be documented each time it occurs, especially for medications with a black box warning or prescribed off-label. Also, when prescribing medications for an off-label use or when prescribing for minors, a question to consider is whether there is general support amongst the psychiatric community in support of the medication being prescribed for the patient or if the psychiatric community would consider it outside the standard of care. Review the DEA requirements under the Ryan Haight Act before prescribing medications.  Regularly review the state Prescription Drug Monitoring Program for patients on controlled substances to determine if they are getting controlled substances from other providers.

Children of Separated or Divorced Parents

  • Do you have a copy of the custody agreement?
  • Who has decision-making authority or is it both parents?
  • Is the child of an age to consent themselves to the release of information?
  • What are the expectations in co-parenting if one parent decides to change their position?
  • Do the parents understand non-cooperation by one or both parents may lead to the child being terminated from the practice?

When treating minors with separated or divorced parents, it is very important to obtain a copy of the custody agreement related to decision making authority and to follow the agreement. If the parents have joint custody, the psychiatrist generally needs both parents’ consent to treat. If there is a court-appointed Guardian, the Guardian may have the medical decision-making power. This authority also holds true for the release of medical information.  One parent may be granted the authority to make medical and mental health decisions, but both parents may have the right to the release of medical information.

Telepsychiatry

  • Are you using a HIPAA-compliant platform and secure internet connection?
  • Do you have a Business Associate Agreement (BAA) from the telehealth vendor?
  • Are you licensed in the state or country where the patient is physically located for services?
  • Do you have an emergency plan with each patient? Will the patient consent to a family member being contacted in an emergency?

The requirement for a HIPAA-compliant telehealth platform is temporarily waived during the COVID-19 public health emergency.  The Business Associate Agreement (BAA) protects the psychiatrist in a HIPAA breach if the breach occurred due to the platform vendor’s negligence.  If a platform vendor advertises it is HIPAA-compliant, they should provide a BAA without issue. Be sure to investigate the licensing requirements when seeing out-of-state or international patients. Physicians are required to be licensed in the state or country where the patient is physically located at the time of telepsychiatry visit. The patient’s legal address is not the determining factor for licensing. Confirm that the patient is in a safe, private area during the visit. Prepare a plan with the patient in advance of an emergency or crisis. Calling 911 only works for patients located in the vicinity of the psychiatrist. Research the available options for patients located far away or in another state.

Patient Confidentiality

  • Does your consent to treat include your obligations for mandatory reporting and/or duty to warn/duty to protect in compliance with state regulations?
  • Do you obtain the patient’s written consent for release of the patient’s mental health records?
  • Do you have written informed consent for the use of unencrypted email for communication with the patient?

When initiating treatment, explain to patients the obligations you may have under duty to warn and mandatory reporting laws in your state. Before releasing mental health information, obtain the patient’s written consent using a HIPAA-compliant authorization. Request the patient specify what to release, in what format (paper versus electronic) and where to send the information in response to a request for release of their record. Confirm the patient’s understanding of the risks of releasing sensitive information to third parties, including no guarantee of confidentiality or protection from discovery. Use secure patient portals or encrypted email to send patient information. If a patient insists that sensitive information be released via email, request that the patient provide written consent that they understand the risks of sending information in an unsecured manner, including breach of privacy and confidentiality.  Upon hire and annually, obtain written acknowledgment from office staff to confirm their understanding of confidentiality as an employee of the office practice.

Misdiagnosis/Incorrect Treatment

  • Do you review the patient’s relevant prior medical information when evaluating and treating patients?
  • Is your communication with patients timely and relevant?
  • Do you have a tracking system when ordering tests and labs to ensure they were completed, the results reviewed, and any necessary follow up completed?

One key area that contributes to misdiagnosis or incorrect treatment is a lack of proper communication. The miscommunication can be between two or more providers or between the patient and the provider.  Documentation of collaboration of care is important both when the patient is doing well and when the patient is not doing well. Another key area is the proper evaluation of the patient. Reviewing the patient’s prior relevant medical information is important when evaluating and treating patients. When ordering tests and labs, make sure you have a tracking system to ensure they were completed and then follow up on the results.  Monitoring and documenting potential side effects of treatment should be ongoing at each visit, especially if the risks of the treatment can cause significant adverse effects such as suicidal ideation or tardive dyskinesia.

Boundary Issues

  • Do you have a policy and practice that you and your staff do not accept ‘friend’ requests from patients?
  • Do you have a policy and obtain written consent for the use of email and texting with patients?

Remember – patients are not friends, therefore friending patients on social media platforms such as Facebook, Twitter or LinkedIn can be deemed unprofessional and boundary crossing. Explain to the patient that accepting their friend request can be an ethical violation and affect your medical license. By entering a dual relationship with a patient, it can blur the lines between both roles. If you have an informal relationship with someone who is now seeking psychiatric care, refer the patient to another provider. For patients who experience transference issues, consider referring them to another provider.

The use of email and texting should be limited to basic information. Remember, that emails and texts are considered documentation and should be part of the patient’s medical record. Texting should be limited to confirming appointments and should not be used to convey important medical information. Email and texting should not be used in emergency situations. The proper use of email and text should be part of the office practice policy with a consent signed by the patient as to both their understanding of the policy and whether they are opting in or out of using email and/or texts. If a patient opts in, you must allow them to opt out at any time. Patients need to respect that the use of texting and email is for professional use only.

Another consideration related to boundary issues is treating multiple family members. Explain to the patients the risks and benefits of treating more than one family member and try to avoid this situation, if possible. If there is a reason to treat multiple family members, maintain separate medical records for each and maintain confidentiality between each patient. Follow the American Psychiatric Association Principles of Medical Ethics.

Non-Compliant Patients

  • Is there a reason the patient is refusing to comply with the treatment, including taking medications as prescribed and attending regularly scheduled office visits?
  • Do you obtain a written informed refusal when the patient does not follow the treatment plan?

Thorough documentation is very important when treating non-compliant patients. Manage the expectation of complying with the recommended treatment plan. The consent to treat policy signed by the patient should include the patient’s understanding that non-compliance may result in termination of care and referral to another provider. Although a patient has the right to refuse care, if the psychiatrist cannot properly care for the patient, it may lead to risk of an adverse outcome which, in turn, may result in a medical malpractice case.

Termination

  • Do you have a practice policy on the circumstances that may lead to terminating the relationship with a patient?
  • Does the policy include the state requirements to properly terminate the relationship?

A physician has the right to terminate a patient from the practice for multiple reasons including harassment/threatening behavior, non-compliance, non-payment of services and failing to show up for appointments. Reducing the risk of a successful abandonment claim includes documenting steps taken such as sending the termination letter via both regular mail and certified return-receipt mail or through a secure patient portal, generally providing at least 30 days of medication, referrals for care elsewhere such as the patient’s PCP, health insurer or county mental health department, and providing emergency care for 30 days. If a patient decides to end the relationship, send a letter confirming that the patient has elected to terminate care. Retain copies of termination letters in the patient’s medical record. If a patient’s condition goes beyond the psychiatrist’s scope of practice, refer the patient to a higher level of care; if a psychiatrist feels they can no longer safely treat a patient, refer to another provider and/or setting.

Suicidal/Violent Patients

  • Are you regularly screening your patients for suicide and aggression/violence?
  • Is your practice suitable to provide the appropriate level of care for a suicidal/violent patient?

Refer the patient if you are unable to provide the appropriate level of care for a suicidal or violent patient. If a patient is admitted to an in-patient facility, your practice may no longer be the best setting for the patient to obtain outpatient care after discharge. For example, the patient may be better suited for an intensive outpatient program.

When a suicidal patient is accepted within your practice, obtain consent to allow communication with a family member/significant other should a situation arise where the patient may not be safe. Obtain consent to speak to the patient’s other providers such as their therapist or PCP for coordination of care. Document your evaluation of the patient’s suicidal/violent thoughts at every visit. Just documenting “no SI/HI” for no suicidal or homicidal ideation is not enough. Document a sentence or two that justifies that evaluation, such as “the patient is looking forward to attending college in the fall,” which suggests the patient is forward-thinking.

Documentation

  • Does your documentation provide the information to support your evaluation and treatment of the patient?
  • Are your documentation policies and procedures up to date?

One of the best defensive measures in a medical malpractice claim or licensing board complaint is documentation. A malpractice claim may not be brought until several years after care is provided and your memory may fade. Risk management professionals, claims professionals and medical malpractice attorneys have said for years “document, document, document.” While writing a novel for each patient at every visit is not necessary, jotting one or two sentences is not enough. When documenting, keep this thought in mind, “Will an independent psychiatrist hired to serve as an expert witness on my behalf be able to support my actions based upon my documentation?” Making a judgment call is generally not malpractice; providing information to support that judgment call is key.

A Plaintiff Attorney will try to discredit the care provided not only through the documentation, but also through inconsistencies between the care provided and the policies and procedures of the office practice. Make sure your policies and procedures are up to date and that you follow them.

Never change or alter the documentation, as doing so will almost always result in an indefensible claim based upon lack of credibility and fraudulent documentation.

Risk Management Tips

Understanding and avoiding the potential risks of practicing in an outpatient behavioral health setting can go a long way to avoiding a malpractice claim or licensing board complaint. Keep the importance of these key risk mitigation tips in mind:

  • Maintain good, thorough documentation – avoid altered records or late entries
  • Obtain the current custody agreement for patients with separated or divorced parents
  • Use HIPAA-compliant platforms for telepsychiatry
  • Maintain a license in the state/country where the patient is physically located
  • Maintain patient privacy and confidentiality in all verbal and written communication
  • Set expectations and discuss boundaries with patients and family members
  • Ensure clear communication with patients and with other providers
  • Obtain and document informed consent including the prescribing of high-risk medications
  • Document suicidal ideation/violent behavior consistently
  • Limit the use of email and text to avoid breach of confidentiality allegations
  • Follow state and federal regulations including prescribing, telehealth, confidentiality, informed consent and termination
  • Consult your risk management professional or practice attorney with questions or concerns
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About the Author

Allison Funicelli, MPA, CCLA, ARM, CPHRM, FASHRM, provides risk management consulting services to Allied World’s medical professional liability policyholders and insured psychiatrists, psychologists and psychiatric nurse practitioners and physician assistants. She works directly with policyholders to develop individualized action plans to mitigate potential loss based on their unique exposures and risk management needs.  Additionally, Allison assists these clients with ongoing medical educational programs as well as policy and procedure review and development.

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