Research continues to show the extent to which addiction and mental illness can elevate other serious health risks such as heart disease, diabetes, or even premature death. That’s why treatment facilities have started integrating primary medical care into the range of services they provide.
From the patient standpoint, the benefits are difficult to ignore. But according to Ron Zimmet, an attorney and general counsel for the Mental Health Risk and Retention Group (MHRRG), integrated care introduces your facility to a number of potential risks, which are still perceived as something of a “moving target.”
“It’s changing all the time,” notes Zimmet, who will present a session called “Managing the Liability Risks of Integrated Care” at the National Council Conference & Expo to be held April 14-17 in Chicago. “As a result, CEOs of behavioral healthcare organizations are often changing their minds about how best to be involved in integrated care.”
In large part, that uncertainty is due to the numerous ways that integrated care can be approached. For example, arrangements can be established with a Federally Qualified Health Center (FQHC), which leases space from a treatment center in order to provide the co-located service. Agencies also can adjust their identities to either become an FQHC themselves or a “look-alike” such as a Medicaid health home.
In addition, Zimmet explains that the nature of the relationship between the two entities adds another level of uncertainty. In some cases, they are “true partners” that develop an approach together. And while there might be a formal contract involved, often the process takes place without having anything in writing.
“Organizations are getting into arrangements [to provide integrated care] without fully understanding the legal risks that are involved,” Zimmet explains. “And you don’t want to find [those things] out when you get served with a lawsuit.”
What makes behavioral care unique?
When it comes to liability, is your status any different than any other healthcare provider? In many ways it’s not, but behavioral healthcare providers can find themselves in a unique position, especially when primary medical care is introduced to the equation.
Zimmet says agencies that specialize in behavioral health have an “added responsibility” that might not be present for other healthcare providers. Simply put, the types of patients for whom they provide care are different, as are the types of relationships that are often developed.
“You’re caring for patients who might not understand the need for [primary] care,” he explains. “And you often have regular ongoing contact that creates a different kind of duty than other types of healthcare providers.”
Of course, the nature of those relationships introduces some important questions for providers. For example, was the patient adequately assessed during their last visit? And, once a patient is discharged from an integrated care arrangement, does the liability end?
“The liability does not end unless you have done the appropriate follow up,” notes Zimmet. “If a lab test was done, and you didn’t follow up to make sure the patient understood the implications of the results, then you could have a problem.”
Problems can also arise when the potential risks of being treated (or not being treated) by a primary care physician are not adequately disclosed to the patient. In fact, some of the most common lawsuits involve patients who claim they were not sufficiently informed about those types of risks.
As a result, behavioral healthcare providers often have a “heightened duty” in regard to continued monitoring and follow up. Even if there was an “adequate assessment” during a client’s last visit, agencies still might want to take a few extra precautions. For example, simply involving family and friends can make a big difference.
“They may not fully understand the need for continued treatment, so if there’s somebody who can watch other them and make sure they take their medication, it can go a long way to minimizing your risk,” he explains. “But if you have included them, there also may be a duty to keep them informed.”
How “apparent” is your relationship?
There are a variety of ways for treatment centers to approach their relationship with a primary care provider. But from a legal standpoint, the actual relationship is less important than what it appears to be. According to Zimmet, it’s a legal concept called “apparent agency.”
In short, the concept makes it important to be cognizant of how your partnership with an FQHC or other primary care provider is conveyed and demonstrated to clients. Agencies should evaluate whether they act as though both entities are one organization, and if there is a “reasonable belief” that your partner is authorized to act for you.
“If you create that impression, those who want to sue won’t just [go after] the primary care provider—they’ll want to sue you as well,” he explains. “And since [those bringing the suit] have that argument, you may end up being liable for the negligence [of your primary care provider].”
Clarity can be a key component to avoiding these situations. Throughout the facility, it needs to be clear that the center and the primary care provider are, in fact, two separate entities. Simple solutions can range from making sure there are plenty of signs posted that disclose the independent relationship, to updating your online presence to convey the same message.
“Your staff could be creating the impression that services provided by a partner are being provided by the center,” says Zimmet. “For instance, if a case manager takes a patient to a co-located clinic, they need to make it clear that this is a separate entity. If they don’t, you may be liable [for the care that takes place in the clinic].”
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