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 Risk Management for Mental Health Clinicians

Risk Management for Mental Health Clinicians



The Nuts and Bolts of Legal and Ethical Practice

The Nuts and Bolts of Legal and Ethical Practice



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  • Lets be realistic - 2 ways 1. You are here for the CE credits - Good news - 1. if in indep practice you get a guaranteed tax deduction; if work for an agency, a day off. 2. If not carted out before end of the day you will get your CE credits. [Data: CE required in all but 8 states and most provinces. 25% would get 2x more CE hours. To overcome: “Professional obsolescence.”Half life of a PhD in psychology is 10 years. So I if you get anything at all it is gravy/ a bonus. If you learn anything about managing risks that will protect you personally and your practice - Bonus. If you learn anything good for your clients - Double Bonus. Worst case scenario: What if you learn nothing? Nothing new, Nothing you didn’t know? Don’t take a single note all day. That is the Best possible outcome. Be happy: you are already doing it right, you know the important stuff. That is certainly good news. 2. This really just Nuts and bolts. Lied to you, no nuts, no bolts. What can we do? Some issues are simple enough to be stated as Rules of Thumb. Some can be handled 90% of the time with a simple rule and then be more thorough with the other 10%. Not Bells & whistles/not nuanced/not complications and myriad possibilities. Simple, protective, RofT that you will recall when you need them. Not local law and court cases, not specific to each disciplines. Based on the literature not just my experience. My reasoning: if it applies in one state/to one discipline it will be applied to all so some content will be for the future. Not abstract, values, principles, distant from practice. So Rules of thumb News you can use. Simple guides - a. Relevant to current practice - so you can dodge the bullets. b. Good for you, the client, and the services you provide. c. Clear enough to be teachable and graspable, memorizable and recalled in the consulting room. easily memorizable now but more importantly easily recalled when you need guidance. 1066 and All That
  • 1. Make and keep quality records. 2. Tighten up your procedures and paperwork. 3. Do more patient education. 4. Solicit and respond to any complaints. 5. Get consultation. 6. Know the standards of practice. 7. Buy malpractice (Professional Liability) insurance. (Let them read the slide) May not get to all, depends on how many questions and that balance of prepared content vs your needs. My Tools for Clinicians are for sale during the breaks, lunch and afterward. Research is clear across multiple content areas: Didactic presentations produce no changes in audience and so none in clients. Humm. So you must build a bridge from this seminar to your practice. The bridge to change/What will your bridge look like?/What kind of bridge will you make?
  • Documents are very protective Record retention rules Record destruction Professional will What to record Rules of Thumb High risk situations HIPAA ICD-9
  • 1. How can one informedly release info not yet created? Legal fiction of time limitation on an authorization. 6. Confidentiality continues after death, yours and theirs so you must protect your records for the future. It is an ethical responsibility.
  • I am an expert on this area: 100k reports, a book on report writing/7 editions. 1. Your Notes can and so will be read by everyone, with different intents, from different backgrounds, and in different contexts. To read is to translate, for no two persons' experiences are the same. A bad reader is like a bad translator: he interprets literally when he ought to paraphrase and paraphrases when he ought to interpret literally. -W.H. Auden, poet (1907-1973) 1b. Because older notes were written in a different historical context later readers will attribute different meanings so it is impossible to know what information may be embarrassing or worse. For example, when my mother was involved in seeking what we would not call social justice she became politically active in the late 1920s 2. Readers will not know professional jargon - our unique language and alternative meanings. Personal Allergy: For example, “Client denied smoking marijuana” \\: What could this mean? • just that he said, “No” when asked if he smoked it. • that he said, “No” but we know that he did (and is lying) or • that he did but does not want to face the consequences (denial), or • that he smokes some but not much so can say ““No” to what you mean.’ •  even that he never smoked it but did have a brownie for breakfast with a bag of MJ in it. 3a. Abbreviations can have several meanings. • Make your meaning clear to every potential reader by avoiding abbreviations. There are even lists of abbreviations not to be used in medical records as this one from the Joint Commission: http://www.jointcommission.org/PatientSafety/DoNotUseList/ • “ The SOB is getting worse” should always mean “short of breath.” 3b. Readers will not know what our abbreviations mean. -For example “cl admitted to N5” Acute psychosis? Dementia and Alzheimers? Drug Detox? Criminal? -For example, does “WNL” mean Within Normal Limits” or We Never Looked (medico-legal joke). I just saw NCS= Not clinically significant. - Use FLK in child neurology service. Soft signs, unclear dx, do more workup. But mom reads FLK. Recently: GLM - Good Looking Mom. Normal for Norfolk. And in Norfolk? GUK (god only knows/OGK?) 3c. Even peer readers will not know your personal abbreviations. Exercise: When the client is not present at the appointment time what do you write?: “No Show/NS,” ”FTS,”“DNS,” “DNCancel/Call,” “Failed Appointment,” “FTKA,” “DidNotKA,” or “Cancelled + r/s;” or “CAC (cancelled by client), CaCn (cancelled by clinic/clinician) or something else only you understand? - As part of your ethical responsibility to care for your records you should keep, with your records, a sheet translating your preferred abbreviations into English (not just jargon). Back to protecting confidentiality. Which means? Next slide
  • 1. All treatment irrelevant references to matters which you or your patient would not want to be seen by utilization reviewers, parents (if the patient is a minor child), legal representatives of deceased patients, plaintiff’s attorneys in malpractice actions, or government agencies who might seek access to the record for purposes of security clearance. 4.04 Minimizing Intrusions on Privacy (a) Psychologists include in written and oral reports and consultations, only information germane to the purpose for which the communication is made. • It is impossible to know in advance what will be germane so, if you want to record something you think you might forget or some details which might be important, be discreet. A few words may be all that is needed to bring the rest of the situation clearly to mind. • No details unless your treatment will need them and you or the client are likely to forget them or distort the memories. 3. Consider using only initials for persons’ names. The names of third parties - for example, the person with whom the patient is having an affair. Datebook with names and phone numbers, encrypt? 4. Maintain a professional writing style and tone of voice. The second general pitfall of documentation can be described as one of tone. As a record of professional activities, the record should maintain a professional tone . This means that sarcasm, demeaning terminology, attempted joking, or even too casual a tone may reflect badly on the clinician. No joking that may have been humorous in the nursing station is ever funny when read aloud from the witness box at a trial during cross-examination. Recall that the average jury understands very little about psychiatric care, and may project their fear and distaste for the mentally ill onto the clinician. If the clinician appears to act out this image through the negative tone of the record entries, it is difficult for the jury to support the notion of careful, professional, objective care devoted to the patient's welfare. Psychiatry (Edgmont). 2004 November; 1(3): 26–28. Fundamentals of Medical Record Documentation. Thomas G. Gutheil 4B. Eg If client says he “has a pimple on his weiner” or “prick or “wee-wee” I use “penis” but don’t correct him..
  • In court rooms the rule is often “If it wasn’t written down, it didn’t happen.” 1a. This is ex post facto. Looking back it is a good rule but not looking forward. 1b. Balance against the time and energy available, the perceived risks of the case when making notes, legal and ethical rules, etc. We will return to this balance several times below to work on it. c. An impossible standard: can’t record all so always weighing and filtering. 2. But “Skimpy records suggest skimpy treatment.” 3. From Eric Harris, PhD, JD of APAIT. He says it is like 8th grade Algebra - show the steps. Maybe only one error then out of 10 steps. 4. Exercise for this rule: When a pt says you did good work or helped them do you a. Smile. b. Make sure they take the credit. c. Write it in your notes? d. all of these Law of reinforcement (-> likelihood of beh) and ignoring (-> less likely/extinction) So: Always record positive patient statements about you and your work. Record when you think you did a great job no matter what the pt thinks or does. Self reward, self-reinforcement is REQUIRED for self-care, continued motivation for this hard work, and documentation for case understanding and self-research.
  • If you have any sense of unease due to a learned (well trained) legal-ethical guiding superego/conscience. Product of education, self education, workshops, discussions, peers. etc. -any vague discomfort about the consequences of actions or inactions, any tickling small voice, then write it down. What to write? At your current level of understanding. 2. When the level of risk rises, increase your level of documentation Jeffrey Bennett, 2006 More detail, more context, more considerations. Risk to the client, you, others, etc. Eg Loss of confidentiality with release of records, new agency involvement? Your experience?
  • 3. Describe the persons, actions, implications and context of events. Go into sufficient detail that you will remember with certainty. Be concise, specific and chronological. - Identify how you got and where need to get this information. • Do this using the concepts and terms which you understand to apply at the time of writing while fully expecting to understand more and differently later. • Pay especial attention to the facts, opinions, and judgements on which you base your clinical decisions and actions. • List the cons. For example, harm to the client, others, you, the agency or facility, or to property of inaction as well as of an action. • List the pros of doing or taking each action E.g., benefits to the person, others, you, the agency or facility. Only after listing them, assign weights or values to the risks and benefits. Note: This approach, the weighting of options (a la Ben Franklin), this hedonic calculus (Jeremy Bentham), this economic analysis (the prudent man) is likely to be minimized after an intuitive, immediate decision has been arrived at and so be doubly careful of your deciding. Try to imagine how others would see your information gathering, option creating, weighing of the options, and implementation of the best option(s), and followup. Ok, you have made your decisions but you worry about them? Are they good enough? NEXT
  • 1. perfect means having absolutely comprehensive information integrated completely, with all possible options considered thoroughly, and your choice implemented flawlessly, completely consistent with the applicable laws and ethics, etc. Professionals are in the thinking class. Knowledge workers. 2. It simply has to be thoughtful, thorough, and well-reasoned and these aspects have to be evident in your records. It is the lack good of thinking that can be malpractice because that is what professional training confers and licensing for independent practice supposes and requires. HIPAA: address “foreseeable threats” 4. Even if the outcome is a failure, sad or just negative, that does not constitute malpractice. That is all you would expect of a peer’s professional behavior and it is the legal and ethical standard - not perfection. The standard of practice. ?Example: Blame in car accident based on outcome not on acts. Start with smallest and ask. Then retell with worst first. Only: Some one failed to set handbrake. Database of State Tarasoff Laws Griffin Sims Edwards February 2010 papers.ssrn.com/sol3/papers.cfm?abstract_id=1551505 userwww.service.emory.edu/~gsedwar/DSTLv2.pdf 4 videos on YouTube 7/11 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544574& Doing Their Duty: An Empirical Analysis of the Unintended Effect of Tarasoff v Regents on Homicidal Activity Griffin Sims Edwards Emory University, Department of Economics January 29, 2010 Emory Law and Economics Research Paper No. 10-61 Abstract: The seminal ruling of Tarasoff v. Regents enacted a duty that required mental health providers to warn potential victims of any real threat to life made by a patient. Many have theorized that this required breach of confidentiality may have adverse effects on effective psychological treatment - but the question remains unanswered empirically. Due to the presence of duty to warn laws, patients might forego mental health treatment that leads them to violence. Using a fixed effects model and exploiting the variation in the timing and style of duty to warn laws across states, I find that mandatory duty to warn laws cause an increase in homicides of 5%. These results are robust to model specifications, falsification tests, and help to clarify the true effect of state duty to warn laws. Number of Pages in PDF File: 48
  • 1. Offering a diagnosis is part of the professional standard of practice in health care so use the tool properly. Don’t be sloppy. 2. We all know that DSM/ICD labels are junky because: • Almost all have such low reliability as to preclude validity. Only the largest categories such as psychosis vs. neurosis (anxiety and depression disorders) have acceptable reliability but information at that general level is useless for treatment decisions about individuals. •  They don’t meet the standards for diseases. They have no life course with a known etiology, consistent dynamics, or response to interventions, and therefore no reliable prognoses are possible. • They use multiple and inconsistent criteria. e.g. the mental retardation diagnoses are based on the normal curve distribution of test scores; substance abuse based on impairment of function; psychoses are based on just a few symptoms; depression based on sharp cutoffs of the number and duration of symptoms, etc. • They are based more on history and theory than on empirical/data or statistical models. •  They assume mutually exclusive categories (“boxes”) and not spectra (or ranges) as are seen in all other human traits. •  They are not related to treatment or outcomes of treatment. 4. Diagnose well. For all conditions fully present. Negligent diagnosing is malpractice. That means don‘t: • ‘ tailor the chart‘ to meet a diagnosis. The whole truth is the expectation and is defensible. • offer diagnoses that are inaccurate so that your services will be covered by insurance or ‘upcode‘ to diagnoses that pay you more or entitle the patient to more benefits. - Illegal, fraud. Criminal. - What are you modeling? These are signs of incompetence if not negligence. • Use all five digits. They are required for data analysis and usually for payment. •  Use all five axes of DSM if you choose to use it. ICD-9 does not use axes. • Diagnoses from Interpersonal theory, Transactional Analysis, or the Psychodynamic Diagnostic Manual at http://www.pdm1.org/ are additions but not legal substitutes. (Medical necessity needs only I and V)
  • 2 Sure, you can still submit insurance and paperwork with DSM codes because the insurers and payers use their own “crosswalk” programs to get the ICD codes they need for reports (ICD is the standard in the rest of the world and in government). However, the quality of the translation is completely unknown - there is no standard and accepted crosswalk and the insurers consider their crosswalks their business secrets and do disclose them. We do not know if what we submit is being altered for their benefit. 3. DSM and ICD are not identical. The overlap is perhaps 70% so there are dozens unique to each. Mine is in the Clinician’s Thesaurus. SHOW b Diagnoses may contain extra meanings which you might not want to include. Example 1 294.1 in DSM is Dementia Due to Head Trauma or to Huntington’s Disease or to Parkinson’s Disease or to HIV Disease. The particular choice is to be coded on Axis III but might not be. 294.1 in ICD is “Dementia in (a condition classified elsewhere) which would involve an additional code. While this includes Alzheimer’s and the other conditions it is not assumed in the code number of 294.1 Here is my problem with the use of this DSM diagnoses: A reader of the chart finds this DSM code 294.1 and also sees that the client is, say, under 40 year of age, those pretty much exclude Parkinson’s and Huntington’s and if the client has no chart entry for head trauma, and is listed as “unmarried” the assumption of homosexuality and/or of HIV status is not too unreasonable. Do we what to supply that kind of information? [I know married females get HIV+ frequently and other facts but this is just an illustration] Using the DSM diagnosis raises the possibility that the client is HIV+ and does not require or allow you to state otherwise. ICD is much clearer. Example 2 Gender Identity Disorder 302.85 in adolescents or adults. In ICD that is it. DSM asks in addition to specify if sexually attracted to Males or Females or Both or Neither. Are you ok with revealing that? Example 3 Some older diagnoses which are very descriptive and were in DSM-III are still in ICD-9. e.g.the old but accurate conduct disorders such as 312.0 Undersocialized conduct disorder, aggressive type. “Juvenile Delinquency” is back to be used when it best fits: DSM-IV offers 5: 312.81 Conduct disorder, childhood onset type. 312.82 Conduct disorder, adolescent onset type. 312.89 Conduct disorder of unspecified onset. 312.9 Disruptive Behavior Disorder V71.2 Child or Adolescent Antisocial Behavior. This is not very compelling or specific. To which the ICD adds these 3 options: 312.4 Mixed disturbance of conduct and emotions. Neurotic delinquency. 312.8 Other specified disturbances of conduct, not elsewhere classified. 312.9 Unspecified disturbance of conduct. Disruptive behavior disorder NOS. Delinquency (juvenile). Note the emphasis in DSM on onset and in ICD on symptom patterns. Why onset? Example 4: A kid with depression, anxiety, and behavioral problems but none very severe. In DSM have to pick one and they are pretty heavy/sticky. In ICD - Misery and unhappiness disorder specific to childhood and adolescence. Where? - Most codes have multiple diagnoses - labels. For example 295.6 has Chronic Undifferentiated Schizophrenia as well as Residual type. Are these different in your mind?
  • 1. Free - your taxes at work. English lang versions. Go to ICD-9-CM, then Folder DTAB1.1Zip, download this. Unzip it to a .rft file. You want only Chapter 5, diagnoses numbered 290 to 319 - pages 161 to 193 - 32 pages of 834 pages 3. You will have to integrate and edit down to the usable format. Or pay someone who had done the work for you. (What is your time worth?) Some options:
  • On Dec 3, 2011, at 3:08 PM, Zelevansky Elliot wrote: That said, my feeling is that when Anthem BCBS wanted to drop the UCR reimbursement rate for 90806 from $ 247.50 to $ 81.00 (!!!!!!) on 1/1/2011, they did so by abandoning the "UCR" concept replacing it with "MAA (Maximum Allowable Amount)," which they set as equal to their in-network rate. On Dec 3, 2011, at 1:44 PM, Elizabeth Carll, PhD wrote: <<<$.02. As you may know, United Heatlh Care's division called Ingenix was caught cheating about 5 years ago. For about ten years insurance companies sent information on services, fees, locations, etc. to them, paid them for the processing, and were sent back information on UCR numbers. Ingenix was systematically reducing these numbers (the exact formulas apparently are not public) and so UHC paid a fine of $350 million and they and other insurers contributed $100 Million to set up a fair and neutral information processing system which as I recall was to be at SUNY Syracuse.  A one page summary is at this site:  http://www.joepaduda.com/archives/cat_health_care_issues.html Fascinating reading and this issue requires you to scroll down to the entry of October 30, 2009 For the whole settlement go to  http://www.hmosettlements.com/pages/ingenix.html The databas e actually has been established. Have a look at  http://fairhealthconsumer.org / Their consumer guide FH Reimbursement 101 at  http://fairhealthconsumer.org/re imbursementseries/l looks ver y informative to me. You can look up some information on reimbursement for e ach CPT code and Zip code at  http://fairhealthconsu mer.org/medicalcostlookup/ The insurers may well have decided to abandon the UCR model with its long and useful history in favor a a neologism - MAA. This is akin to their creation of neologisms like Medical Necess ity, coinsurance, deductible, etc.
  • Show copy- PASS Around
  • 4 Cheaper because it is all an experienced clinician needs: No 886 page, $70 book. No batteries, no Internet connection, no bookshelf. 5. Current so it includes these now-valuable codes: V61.01 Family disruption And the last reason Fun -313.1 Misery and unhappiness disorder. Excludes Depressive neurosis, 304. Sorry, not for adults. -Now you can diagnose them with their complaint: 799.2 Nervousness, “nerves” -780.95 Excessive crying of a child, adolescent, or adult. How much is “excessive”? -And for a fine differential diagnosis: 784.91 Postnasal drip vs. 784.99 Runny nose. Don’t you buy something for your pet every once in a while? For yourself as a treat. Treat your practice. I try to keep up on disorders but new ones are always coming along. Like these.
  • There are PCS and CM versions. We are interested in the Clinical Modification versions. Nearly 30 years old, ICD-9-CM will run out of possible code combinations by next year. The present code set includes 17,000 codes, while ICD-10-CM includes more than 155,000 possible code combinations. This greater number of combinations allows ICD-10-CM to expand and keep up with new diagnoses and inpatient procedures. How can I translate between ICD-10 and ICD-9? It is not possible to convert ICD-9 data sets into ICD-10 data sets or vice versa. ICD-9 has 6,969 codes while there are 12,420 codes in ICD-10 (14,199 with the fourth-character place of occurrence codes in Chapter XX (External Causes of Morbidity and Mortality). International Classification of Functioning, Disability and Health (ICF) The International Classification of Functioning, Disability and Health, known more commonly as ICF, is a classification of health and health-related domains. These domains are classified from body, individual and societal perspectives by means of two lists: a list of body functions and structure, and a list of domains of activity and participation. Since an individual’s functioning and disability occurs in a context, the ICF also includes a list of environmental factors. The ICF is WHO's framework for measuring health and disability at both individual and population levels. The ICF puts the notions of ‘health’ and ‘disability’ in a new light. It acknowledges that every human being can experience a decrement in health and thereby experience some degree of disability. Disability is not something that only happens to a minority of humanity. The ICF thus ‘mainstreams’ the experience of disability and recognises it as a universal human experience. By shifting the focus from cause to impact it places all health conditions on an equal footing allowing them to be compared using a common metric – the ruler of health and disability. Furthermore ICF takes into account the social aspects of disability and does not see disability only as a 'medical' or 'biological' dysfunction. By including Contextual Factors, in which environmental factors are listed ICF allows to records the impact of the environment on the person's functioning. International Classification of Health Interventions (ICHI) The purpose of this classification is to provide Member States, health care service providers and organizers, and researchers with a common tool for reporting and analyzing the distribution and evolution of health interventions for statistical purposes. It is structured with various degrees of specificity for use at the different levels of the health systems, and uses a common accepted terminology in order to permit comparison of data between countries and services. History: The need to classify interventions first emerged in 1971. It was initially limited to surgical procedures. The first International Classification of Procedures in Medicine (ICPM) was published in 1978. International work on the subject came to a virtual halt in 1989 , because of the inadequacy of the consultation procedures with regard to the necessary adaptability to rapid and extensive changes in the field. A number of countries, however, undertook work for national purposes. The resulting classifications came short of providing adequate tools for use at the international level. Today, the need for an international classification has reemerged with a wider scope. The envisaged International Classification of Health Interventions aims to cover a wide range of measures taken for curative and preventive purposes by medical, surgical and other health-related care services. Current status: In recent years, the Network of WHO Collaborating Centres for the Family of International Classifications has promoted the development of a short list of health Interventions for international use, based on the Australian Modification of the International Classification of Diseases, 10th revision (ICD-10-AM) It is intended to be used in countries that do not, as yet, have their own classification of interventions. An initial ICHI version is being adapted to meet present day conformance criteria with recognized standards. In particular, the multiple application areas of such a classification calls for a multiaxial capture of the underlying knowledge. Furthermore rapid change in science and technology implies frequent updates. Adequate technical solutions must therefore be developed. The Family Development Committee of the Network of WHO Collaborating Centers for the Family of international Classifications is actively developing plans and canvassing support to that end
  • CE vs Continuing Professional Development
  • And we are way too optimistic
  • Research Minute It is easy to say, “Stay within your areas of competence” but can we really know our competence accurately? Social psychologists describe The Lake Woebegone Effect: 85% of drivers rate themselves as above average. “ Illusory superiority” 2. Kruger and Dunning (1999) in a series of studies asked for self rating in areas which do not have well-known, clearly recognized criteria such as having a sense of humor, but for which valid test materials were available. 3. Results 1: Most were very optimistic and truly uninformed about where they stood in ability. The least able were even more out of touch than the others. Results 2: Even the capable are not good judges. The authors argue that the most capable are surrounded by other highly capable people and so their standards for comparison are raised and their self ratings are lowered. So you must monitor yourself, skeptically, get objective feedback.
  • 1.It has been estimated that the half-life of a PhD in psychology is 10-12 years (Dubin, 1972). That is, that half of what you learned in graduate school will outdated, incorrect, useless or worse in just a decade. And you will not know which half of what you know is not longer “true’ and can be relied upon unless you keep up. Obsolescence. 2. I fully recognize that newer is not always or even mostly better. At the least such challenges can make you feel confident in your knowledge and you may rediscover some old techniques. Be a life-long learner and be proud of it. 3. Stay within your competencies . Don’t take cases you can’t handle really well. • You are not competent to treat every disorder or person you are licensed to treat. • You are not competent to treat every person or disorder who walks into your office. These are slippery slopes - you get by the first time so risk it the second and if ok, a third. 3. Don’t be a one trick pony or even 5 tricks. Abe Maslow: Hammer/Nail- and from the patient’s side: next slide. The problem is that we are very poor at judging our competence. Research. Even has a name for this defect.
  • 1. Don‘t take on a case just out of your financial need or from fear of offending referrers or bosses. Don’t rationalize. Just don’t do it; find another way. Congratulate yourself. 2. Do not work when you are impaired. Impairment is a slippery slope. a. When you get away with minor limitations and lapses you can become convinced you are okay after x happens even when you weren’t and won’t be. a. This does not just mean drunk or high. Any level will impair your judgement. b. This means tired or sleepy or having eaten too much or too little or had too much caffeine, nicotine, or your own drug of choice. c. Don’t work when you are too aroused, lonely, sad, troubled, scared, angry, etc. b. The ability to anticipate, to use good judgement, is easily sidetracked. 3. Know your weaknesses. Listen your enemies. Smugness is a risk factor for error, complaints and malpractice. Refer. Do not see clients with your problems. a. A wise Jungian clinician Harriet Gordon Machtiger, PhD of Pittsburgh once said that when you are having a problem in your life, it walks in the door. b. Even if you think you have overcome the problem, the risks of reactivation, blindness, and arrogance are present. Be very careful and get consultation before and during the treatment episode. Balance pers experience as a pro vs con of only using their method. Better Q is Does the therapist’s historical disorder and pattern of cure/treatment and improved function fit the new client.
  • Informed, competent, voluntary 5 paths to consent Your practice brochure A structured interview Continuing consenting Using handouts
  • 1. Recall that consent to evaluation or treatment must be all THREE Why Pt education? -The clinical reasons: so that you have true consent to what you think are the best treatments. Question: What if pt does not do what you prescribe/negotiate? -The Risk Management reasons: Because almost anything is allowed and legit/kosher if pt has consented to it. “ Almost” Example of something that consent will not protect you from? sex with cl. Criminalized in this state? Formalizing consent is very protective of you - and of the client.
  • EXercise: Q: How many of you treat only voluntary pts? -kids, threatened spouse? Just recognize as source of resistance, distortions. 1. Voluntary, uncoerced, without threat or penalty. A loss of anything besides the psychological benefit due to discontinuing it can be a coercion. Consent to treatment: written? No. Can be presumed by attendance, participation (in treatment, planning), and adherence to treatment. When cl just doesn’t do hw or similar? Hidden threats or coercions? 2. Competent in that the client is capable of understanding what is required and what will be done. Do you need a neuropsych eval on every client? Coping Strategy or Tactic Note: If there is any reason to doubt these, document them and your thinking and resolutions. “ Having interacted with this person for (time) today (or other times) around many topics requiring understanding and recall, based on my clinical judgement and experience I have noted no reason to believe that this person is in any way incompetent to consent to (the proposed course of treatment.) Signature. Date.”
  • 1. Informed consent which is the mental condition of understanding the choices after a discussion with questions and answers about risks and benefits of a treatment and its alternatives that a reasonable person would want to know before proceeding. [like juror, Oliver Wendell Holmes, Jr.] Topics and issues include: • The limits of confidentiality re parents and kids, degree of autonomy of older kids, threats and harms, couples and divorce/custody. • Billing, fees, and collections. Collection efforts a a major trigger for board complaints. • Multiple relationships - never sexual; not “friends” now or later; not business partners or similar; won‘t barter; no financial, medical, or legal advice, etc. 10. When there are risk issues, obtain informed consent for the treatment. Ensure that language used in the informed consent is simplified so that the person or his/her legal representative can understand the: • Nature of the procedure/treatment . • Risks and benefits of procedure/treatment, including possible side effects . • Risks and benefits of possible alternatives . • Risks and benefits of not receiving the procedure/treatment. • Right to withdraw the informed consent at any time. If not understood cannot have ‘informed’ part of consent. 2. Do you need to have a signed form? Assumed? And how do we get informed consent?
  • 1. Structured interview the cl does on you. Mitchell Handlesman However, these may not suit your way of working so consider the others. 2. Clients must be informed of the limitations on your work and it is your ethical duty to inform them. 10.01 Informed Consent to Therapy (a) When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent , psychologists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers. (See also Standards 4.02, Discussing the L imits of Confidentiality , and 6.04, Fees and F inancial Arrangements .) (b) When obtaining informed consent for treatment for which gener ally recognized techniques and procedures have not been established, psychologists inform their clients/patients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation. (See also Standards 2.01e, Boundaries of Competence , and 3.10, Informed Consent .) (c) When the therapist is a trainee and the legal responsibility for the t reatment provided resides with the su pervisor, the client/p atient, as part of the informed consent procedure, is informed that the therapist is in training and is being supervised and is given the name of the supervisor. Brochure: it is the most comprehensive, most currently accepted and most often recommended. More in a minute.
  • 1. Structured interview the cl does on you. Mitchell Handlesman Univ of Colorado, Denver However, these may not suit your way of working so consider the others. 2. Clients must be informed of the limitations on your work and it is your ethical duty to inform them. Brochure: it is the most comprehensive, most currently accepted and most often recommended. More in a minute.
  • PAGE 28 in your MANUAL 1. Best example of Use paper Clinically - Clarity reduces the risk of misunderstanding, protects both parties, raises hidden concerns. - Foundation of trust (based on openness or transparency) for therapy to develop productively. 2. Contract means rights, responsibilities, and obligations from both parties. These are continually evolving due to the progress of therapy and the growth in legal issues and client growth. Contents list is in your Manual P 30-31- based on my research/book You can construct a complete and written out patient education Brochure on the issues of the client/therapist relationship to be read, discussed, and signed, or you can read my version with many options for each point and tailor it to your clientele, style of working, local laws and regulations, etc. I do not want this to be just a sale pitch for my The Paper Office so do consider the costs and benefits you can get from letting me do the work of reading the literature and distilling it for you. Packed - constantly thinking of use of stuff I find. Not limited.
  • Normal consenting is done early in treatment. Procedures and forms - routine, baseline, default. 1. When treatment is planned and discussed in the early sessions. Client agreement to the treatment plan can be documented in your notes Address at least these points: - The nature of the procedure/treatment. - Risks and benefits of the procedure/treatment, including possible side effects. - Risks and benefits of possible alternatives. - Risks and benefits of not receiving the procedure/treatment. - Their right to withdraw the informed consent at any time called Informed refusal. 2. Make consent explicit in these cases: a. Whenever something changes the equation of risks, benefits, alternatives, understanding, or the client’s ability to choose. You would do this for motivation and participating in tretment but this/Inf Consent is ALSO RM. b. For example, taking a sexual history or prescribing masturbation in sex therapy. c, d. Whenever using a technique unfamiliar to the client or in any way controversial or experimental discuss it fully and to obtain fully informed consent for the treatment. 10.01 Informed Consent to Therapy (b) When obtaining informed consent for treatment for which generally recognized techniques and procedures have not been established, psychologists inform their clients/patients of the developing nature of the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature of their participation. (See also Standards 2.01e, Boundaries of Competence , and 3.10, Informed Consent .)
  • 1. Billing, fees, collections: Client has the ultimate “financial responsibility” BIG risk so many signs. 4. Ask at intake or history. No. Ask when suspect. No. Binder in waiting room with h/o. “Professional therapy never includes sex” 2004 from www.bbs.ca.gov/forms.shtml 2 - not sexual, never friends, may not acknowledge, no business or legal advice. WalMart Speech Might run into them in WalMart, not more than eye contact. More only at their initiative. I don’t know if person next to them is boss, nosy neighbor, or someone else not want to explain how we know each other. Avoids hurt of rejection/non-acknowledgement. Reduces chit chat. 3. The limitations managed care places on treatment and confidentiality. What You Should Know about Managed Care and Your Treatment TPO p 159 Your health insurance may pay part of the costs of your treatment, but the benefits cannot be paid until a managed care organization (MCO) authorizes this (states they can be paid). The MCO has been selected by your employer, not by you or me. The MCO sets some limits on us, and you need to know what these are before we go further. Confidentiality Treatment Our Agreement -If you don’t want to write your own patient education materials on these topics do consider buying The Paper Office which includes these and more. 5. Risk of harm by self injury, drug use, etc ..... What age does child become competent to control info? Assent , agreement, acquiescence, Nihil Obstat, concur, not best but acceptable, not harmful. What issues? contraception and sexual health, MH services
  • Teens can’t consent, not legal adults so use Assent = “no objection” Illustrates the 2 nd theme of today: combine the legal, ethicl, clinical on paper and in procedures.
  • 1. This is a complicated decision and well beyond what we can address here. Much more about issues, options, and considerations, with specific recommendations in The Paper Office. 2. Much more likely. 3. Understand that you need to buy or receive a nose/tail (Prior Acts coverage) when you change insurers, change from Claims-Made to Occurrence, or retire. 6. Raise your coverage level before retiring, change ins co, switch to C-made so that the size of your tail goes up too. 7. Why important? Coverage is very different. Table on Occ vs Cl made CPH - www.cphins.com - 11/2011 Only Occurrence based. No limit on defense coverage, automatic 35K on Lic boards with riders,. Same cost each year. 5K for medical expenses. And others.
  • Turn in your evaluation/CE Test to ______ to get your CE Certificates of Attendance I will hang around, answer questions Hear from you, email Sell stuff. Cash, check, CC.

 Risk Management for Mental Health Clinicians Risk Management for Mental Health Clinicians Presentation Transcript

  • Risk Management for Mental Health Clinicians - The Nuts and Bolts of Legal and Ethical Practice Edward L. Zuckerman, PhD [email_address] 1
  • Agenda for today
    • I. Overview: Self-protection. Theme 1: Build it into your paperwork and procedures.
    • 2. Managing risk: Theme 2: Slippery slopes. Theme 3: Loyalty. True risks vs hype. Spectrum of risk. Theme 4: We create the risks. Data, Changes in ethical understandings.
    • Break
    • 3. Standards of practice: Offenses. Values, Ethics. Fiduciary duty. Knowing the standards. Consulting.
    • Lunch - Make new friends
    • 4. Licensing boards and complaints: Real risks vs hype. Four kinds of bad news. Data. Malpractice. Complaints: who, when, why, how. Comparing Suits and Boards. Responding to a formal Complaint or a Suit. Releasing records. Amending records. Soliciting complaints.
    • Break
    • 5. Documenting: Permanency. Retention. Professional will. What to record. Rules of thumb. High-risk situations. HIPAA: Required contents and changes coming. Diagnosing: ICD vs DSM.
    • 6. Competence: Self-awareness. Excessive optimism. Monitoring.
    • 7. Patient education: consenting: Definition. Methods.
    • 8. Buying malpractice (Professional Liability) insurance
    • Wrap up and your CE certificates
    • Slippery slopes to disasters can be stopped with names/concepts and Rules of Thumb
    • Build the legal and ethical rules into your paperwork for automatic and comprehensive protection
    • The risks of practice are (very largely) in our hands
    • The Boundaries model/Venn diagrams explains risks/choice/multiple relationships
    • Being a fiduciary is a major element of being ethical professionals
    • Use a spectrum of risk intensity to make decisions on protection
    • Protective and clinically beneficial Records can be simplified and tailored
    • The function of licensing boards is protecting consumers from us
    • Board complaints are the great danger; not malpractices suits
    • The “Standards of Practice” is the legal criterion and so is protective
    • How to efficiently achieve Consent that is clear, ‘common,’ and protective
    Some useful concepts from today- Learning Objectives
  • 5. Documenting
    • Documents are very protective
    • Record retention rules
    • Record destruction
    • Professional will
    • What to record
    • Rules of Thumb
    • High risk situations
    • HIPAA
    • ICD-9 and DSM-5 and ICD-10
      • Insurance - “released” by client
      • Mandated reporting
      • In litigation, HIPAA’s Psychotherapy Notes will very likely be discoverable
      • In a suit the client has “waived privilege” but not all confidentiality - law ≠ ethics ≠ Board
      • Judges decide, no matter your arguments
      • Confidentiality does not end with death
    Exceptions to confidentiality 89
  • What to record: Some Rules of Thumb 91
    • Our Progress Notes can and will be read by anyone
    • with an interest in them
      • Every reader will have a different background and intents and so make different interpretations of your words
      • Jargon can be confusing
    • Our abbreviations and acronyms are obscure or ambiguous to others
  • Record only what is relevant to your work
    • Discretion, discretion, and more discretion
    • Leave out most specifics
    • Anonymity: Omit names of most third parties. Use initials rather than names?
    • Maintain a "Professional voice":
      • No sarcasm, irony, exaggeration, or attempts at humor.
      • A too casual a tone may reflect badly on the clinician.
      • No pejorative labeling of clients as bigoted, fat, selfish, sick, stupid or behaviors like degrading, unethical, criminal, or illegal.
      • Separate the disorder from the person. No “mental retardates” or “addicts” or “alcoholics,” etc.
  • “ If it wasn’t written down, it didn’t happen”
    • While “skimpy records imply skimpy treatment” documenting has to be balanced against the time and energy required for record making
    • Impossible to record everything that happens
    • Eric Harris: “Show your work” for partial credit
    • An aside: undocumented progress and success: clients’ compliments and reports of improvement
  • If it might make a mess, make a note
        • Your vague discomfort is learned unease - it is the product of good professional education and experience
        • Write at your current level of understanding
        • More unease, more risks, more notes
        • Never open a high risk issue without closing it in your notes
        • These notes will demonstrate your thoughtfulness , your competence , your adherence to the standards of practice
  • “ Think out loud for the record”
    • Write down your thoughts as a clinician thinking through the situation:
      • The concerns, questions, or conflicts
      • What you don’t know and want to learn
      • The risks and liabilities of taking and not taking each action - the cons - and the benefits - the pros- of each action
      • Your decisions and plans
      • This is a valuable experience for care of the client
      • and is your main defense in a complaint or suit
  • A well-made and documented decision does not guarantee a good outcome nor prevent your being sued/complained against BUT it is very good evidence of proper practice and the best defense
    • The process does have to be thoughtful
    • The process does have to be documented
  • Diagnose properly
    • Diagnosing is required of health care providers
    • Don’t “tailor the chart”
    • Diagnoses using ICD-9 are required by HIPAA
    • You can add DSM, “Psychodynamic Diagnostic Manual” diagnoses, as well as interpersonal, etc
  • HIPAA requires ICD-9
    • § 162.1002 Medical data code sets.
    • The Secretary adopts the following maintaining organization's code sets as the standard medical data code sets:
    • (a)(1) International Classification of Diseases, 9th Edition, Clinical Modification, (ICD–9–CM), Volumes 1 and 2 (including The Official ICD–9–CM Guidelines for Coding and Reporting), as maintained and distributed by HHS, for the following conditions: (i) Diseases. (ii) Injuries. (iii) Impairments. (iv) Other health problems and their manifestations. (v) Causes of injury, disease, impairment, or other health problems.
  • ICD-9 is the International Classification of Diseases, Ninth Edition, Clinical Modification, Chapter 5, Mental disorders from the World Health Organization, Geneva
    • Insurers use (non-public, non-standard) programs to “crosswalk” DSM’s into ICD’s diagnoses
    • DSM and ICD are not identical:
      • Dozens of diagnoses are unique to each
      • Old categories from DSM-III are in ICD-9 -eg 312
      • ICD is more current than DSM - eg V-codes
    • Where can I find the ICD?
  • ICD-9 Diagnoses The Centers for Disease Control in Atlanta, GA www.cdc.gov /nchs/icd/icd9cm.htm
    • Free.
    • But not a brief listing - just the whole 15,000 diagnoses, yearly updates, addenda, etc.
    • So g o to ‘ICD-9-CM,’ then ftp (download) the ‘Folder DTAB1.1Zip,’ and ‘unzip’/expand it.
    • Then focus on the 32 pages in Chapter 5 - pages 161-193
    • Also look at ICD-10, ICF, and training materials.
  • ICD-9 Diagnoses - 2 Rapid Coder - 2009 Psychiatry Plastic card RC17 - $19.95 plus shipping. 2 pages so it is cramped, tiny print, hard to read, one color Listed alphabetically!
  • ICD-9 Diagnoses - 3 Ingenix - Behavioral Health 2009 Fast Finder “ approximately 300 of the most commonly reported codes”- not all the codes. Laminated or downloadable #28994 - $24.95 plus shipping. 2 pages - cramped? <- this is not the product
  • Ed’s Reference List of Psychiatric Diagnoses
    • 4 large pages.
    • Heavily laminated or just coated paper.
    • Multi-color for clarity
    • All psych & sleep disorders, substance abuse, brain injury, latest changes, etc.
    • $12.95 and free shipping,
    • $10 or $5, here.
  • Why buy my ICD-9 List?
    • To comply with the legally required use of ICD diagnoses.
    • When a received record contains only the numeric code find the meaningful label fast without getting out the big DSM book.
    • When you need the full code number (all five digits) or the exact phrasing and spelling.
    • Cheaper because it is (very likely) all an experienced clinician needs.
    • Current so it includes additional and new V-codes and any small yearly changes.
    • Complete with ALL the psych. diagnoses, the sleep disorders, brain injury diagnoses, substance abuse, new V-codes, etc.
    • Clinically useful:
      • ICD offers multiple diagnoses for many code number s so you can be more precise.
      • Less risk of giving misleading or overly-informative diagnoses.
    • Fun!
  • Future diagnostic resources 109 109 Resource United States Rest of world DSM-IV DSM-IV-TR Now (since 1994 and 2002 with no updates) ? ICD-9 Now (since 2003 and updated yearly) up to Dec 2008 ICD-10 Oct 2013 Now (since Jan 2009) DSM-V May 2013 ? ICF and ICHI ? 2007 and on
  • 6. Competence
    • Overconfidence
    • The Dunning-Kreuger/Lake Woebegone Effect
    • Self-monitor
  • Bear in mind the limits of your competence
            • You are NOT competent to treat everyone whom:
    • You see in your office
    • You are licensed to treat
    • You are trained to treat
    • You want to help
  • Incompetent and Unaware
    • The Lake Woebegone Effect : 85% of drivers rate themselves as above average.
    • Kruger (1999) : Areas of skill and knowledge: Humor, aesthetics, etc. all without objective standards.
    • Results:
    • 1. Bottom quarter (mean at 12th %ile) rated themselves as above average (58th %ile in humor, 68th %ile in logic)
    • 2. Top group (mean at 86 th %ile) rated themselves as 68th %ile in logic.
    • The only cure for this distortion is becoming competent.
  • Monitor yourself
    • You must perform at the standard of practice
    • so you must monitor yourself.
    • Get retraining regularly to prevent drifting and learn new developments.
    • Get CE in newer treatment approaches and issues/concerns.
    • Stay within the limits of your competence.
    • Be realistic, not grandiose, arrogant, or defensive.
  • Monitor yourself - A summary
    • Don’t be greedy, needy or choose from a fear offending referrers or bosses.
    • Don’t work when impaired.
    • Learn and remember your weaknesses.
    • Collect data on client progress and your outcomes.
    • Take pride in the quality of your work, despite
    • external pressures and judges.
  • 7. Patient education
    • Consent: Informed, competent, voluntary
    • Five paths to consent
        • Your practice brochure
    • A structured interview
    • Continuing consenting
    • Using handouts
  • Patient education - Consent To be considered valid consent must be all of these: Informed + Competent + Voluntary
      • Free choice
      • Capability
      • Discussion
    Consent because all of these existed -> 117
  • Consent must be ...
    • Voluntary - Client can discontinue or refuse your services at any time with only the loss those benefits
    • Competent - Capable of understanding the options and anticipating their consequences
    • Written ? - No, but better than memory or testimony
    • And Informed ...
  • Informed consent is ...
    • ... the mental state resulting from a discussion, with questions and answers, exploration of concerns, and information sharing
    • A signed form certifies/publicly acknowledges the consent - it does not assure or replace it
  • The “hows” of informed consent
    • Five Paths:
      • A set of questions to be asked of you by the client.
      • A Practice Brochure
      • A list of Patient’s Rights.
      • Contracts for therapy, assessment, etc.
      • Consent forms for specific interventions.
  • 1. A structured interview the client does on YOU
    • What topics?
        • From the list to be considered for your Brochure for Clients
        • Rephrased as questions
        • Example:
    • A. Tell me about money
      • What is your fee for how much time?
      • Will you ever charge me more?
      • How do you want to be paid?
      • Do I have to pay for appointments I forget or cancel?
      • Will I have to pay for phone calls or letters or emails?
      • If I lose my job can my fee be less?
      • If I don’t pay you what will you do?
  • 2. Your practice’s brochure
        • A comprehensive, written, read, discussed, and signed patient information and education brochure addressing all relevant issues
        • Explicit about responsibilities and obligations
        • A contract; legally binding
        • Titles: Information for my clients, Welcome to my practice, Informed consent, What to expect
  • Q: When is more consent needed?
    • A: When more information is needed:
            • New or changed risks.
            • For any especially sensitive area.
            • Unfamiliar or unexpected actions will be used.
            • Experimental or unsupported treatments are offered.
    • Therefore consenting/collaborating is an ongoing process.
          • How? More specific handouts.
  • Patient education handouts
    • On issues such as:
      • Multiple relationships - never sexual, “not friends”
      • Managed care’s limits and risks
      • Those who have been sexually exploited.
      • Confidentiality between parents and especially, older kids.
  • “ Informed consent” with an almost-adult
    • Combine:
    • A Consent (by parents) to your withholding some information about or from the teen with parents.
    • An Assent (by the teen) to allow the clinician to share some information about the teen with parents.
  • 8. Buy insurance
    • Occurrence vs Claims-made: when for each?
    • Understand the features and exclusions of any insurance - Get and read the Specimen policy.
    • Weigh the buying of a “rider” for greater legal defense coverage against your risk.
    • Get “Premises liability” - slips and falls - coverage.
    • When you retire:
      • Buy or get a nose/tail (Prior Acts coverage).
      • Raise your coverage level in last year of premiums.
  • 8. Thank you!
    • If you liked it, tell your friends and PESI.
    • If you didn’t, tell me (anonymously if you prefer).
    • by email to EdZuckerman@gmail.com
    • and for our neat tools see
    • www.TheCliniciansToolBox.com