For example, a parent may have legal standing concerning a teenage patient. A life partner could legally qualify as a co
CME: NAVIGATING END-OF-LIFE COMMUNICATIONS 2016 RISK MANAGEMENT TRENDS ANALYSIS CLOSED CLAIM 1: FAILURE TO MONITOR PATIENT CLOSED CLAIM 2: FAILURE TO TIMELY SCHEDULE FOLLOW-UP APPOINTMENT A GUIDE TO CHARGING YOUR PATIENTS FOR MEDICAL RECORD COPIES
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CME
By Steve Taylor
NAVIGATING END-OF-LIFE COMMUNICATIONS
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CME
OBJECTIVES Upon completion of this course, the physician will be able to: 1. summarize primary components of advance care directives; 2. address uncertainties arising in patient and family discussions; 3. develop questions to ask patients who are facing end-of-life situations; 4. describe when to put decisions in writing and obtain legal guidance; and 5. interact effectively with the person designated to hold power of attorney for health care. COURSE AUTHOR Steve Taylor is a medical writer and former Communications Manager with Seton Healthcare Family in Austin, Texas. DISCLOSURE Steve Taylor has no commercial affiliations/interests to disclose related to this activity. TMLT staff, planners, and reviewers have no commercial affiliations/interests to disclose related to this activity. TARGET AUDIENCE This 1-hour activity is intended for
physicians of all specialties who are interested in practical ways to reduce the potential for medical liability. CME CREDIT STATEMENT Physicians are required to complete and pass a test following a CME activity in order to earn CME credit. A passing score of 70% or better earns the physician 1 CME credit. TMLT is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians. TMLT designates this enduring material for a maximum of 1 AMA PRA Category 1 Credit.™ Physicians should claim only the credit commensurate with the extent of their participation in the activity. PRICING The following fee will be charged when accessing this CME course online at http://tmlt.inreachce.com. Policyholders: $10 Non-policyholders: $75 ETHICS CREDIT STATEMENT This course has been designated by TMLT for 1 credit in medical ethics and/or professional responsibility.
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t can be stressful, daunting, and even frightening to discuss end-of-life issues with a patient, not to mention his or her spouse, children, and other caregivers. There is no “one size fits all” way to do it. There is no best time to do it. And often, the discussion needs to be repeated since patients can change their minds about previous choices or legal designations. Addressing end-of-life issues can burden a physician already managing complicated clinical treatments for a dying patient – but these conversations are equally important to help you determine treatment plans. In addition, there is an ethical obligation. The American Medical Association’s Code of Ethics states: “As patients near the end of life, physicians play important roles
INSTRUCTIONS the Reporter CME test and evaluation forms must be completed online. After reading the article, go to http:// tmlt.inreachce.com. Log in using your myTMLT account information to take the course. Follow the online instructions to complete the forms and download your certificate. To create a myTMLT account, please follow the on-screen instructions. Questions about the CME course? Please call TMLT Risk Management at 800-580-8658. ESTIMATED TIME TO COMPLETE ACTIVITY It should take approximately 1 hour to read this article and complete the questions and evaluation form. RELEASE/REVIEW DATE This activity is released on June 5, 2017, and will expire on June 5, 2020. Please note that this CME activity does not meet TMLT’s discount criteria. Physicians completing this CME activity will not receive a premium discount.
in helping them make often difficult decisions and in providing compassionate care that is respectful of patients’ values, goals and preferences.” 1 The AMA continues, “Proactively discussing with patients what they would or would not want if recovery from illness or injury is improbable also gives physicians opportunity to address patients’ concerns and expectations and clarify misunderstandings individuals may have about specific medical conditions or interventions. Encouraging patients to share their views with their families or other intimates and record them in advance directives, and to name a surrogate decision maker, helps to ensure that patients’ own values, goals, and preferences will inform care decisions even when they cannot speak for themselves.” 2
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CME For those physicians who experience apprehension in initiating these discussions, remember that you can help allay fears, minimize pain and suffering, and enable a peaceful end of life for your patient. Even if the process proves rocky, your patient and their loved ones will deeply appreciate your efforts—and you can feel confident about the support and care you provide. This article will provide help with initiating end-of-life discussions, defining advance care directives, documenting these conversations, and considering what questions to ask your patient. APPROACHING THE DISCUSSION When it comes to fully and effectively communicating unpleasant news, there are no easy roadmaps to follow. And, like all human beings, physicians possess different capabilities and comfort levels when initiating end-of-life conversations. According to a 2016 national poll, physicians find these conversations difficult to start and often do not know what to say. Most have no formal training in this area, and more than half have not even discussed end-of-life care with their own physicians.3 When informing a patient of an unfortunate or terminal diagnosis, fully inform the patient of all treatment options and likely outcomes. Be open and solicit questions. Invite your patient to include a relative or trusted friend in the conversation. Afterward, document the discussion in the patient’s medical record; include what was discussed, any decisions made regarding treatment, concerns voiced, who was present, the date, and the time. Complications are to be expected. For example, it is common for patients and their loved ones to maintain hope for recovery from a terminal diagnosis and not take the necessary steps for end-of-life decision making. Unanticipated conflicts are also possible, particularly when caregivers or family members, who have previously been absent, arrive and voice a dissenting viewpoint regarding care. Family dynamics can be complicated, and conflicts often occur during stressful circumstances such as an end-of-life prognosis. End-of-life discussions with an older patient will often necessitate the involvement of the patient’s spouse, life partner, or adult children – even those who may be estranged. Friends, attorneys, and more distant relatives may also appear and voice strong feelings. For patients under 18, their parents or guardians must be involved in care decisions. Group dynamics can be unpredictable, spin out of control, and even lead to a court proceeding. Dealing with a group of arguing people, all with their own feelings and priorities, 4
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can place a physician in difficult circumstances. In the process, patients who did not previously make their wishes known may or may not receive important treatment. This is why, whenever possible, a physician should determine precisely what the patient wants while the patient is mentally competent and can effectively and legally make his or her wishes clearly known. It is also why a physician needs to fully engage in conversations with all concerned, determine what obstacles must be overcome, and figure out how to manage the overall situation to the benefit of the patient. As soon as possible, the physician must determine who has been designated to make end-of-life decisions and that person’s legal rights. For example, a parent may have legal standing concerning a teenage patient. A life partner could legally qualify as a common law spouse. Someone other than a parent could be a court-appointed legal guardian to a minor. If any circumstances or designees make you uncomfortable, consult appropriate legal counsel. WHEN IS THE RIGHT TIME? End-of-life discussions with your patient can occur when prognoses dictate or during a patient transition point: retirement, moving into assisted living, or when preparing or updating a last will and testament. Do not postpone or downplay these conversations because they are uncomfortable. Delaying discussions could lead a terminal patient to overestimate survival chances, which can influence choices around treatment and end-of-life planning. On the other hand, having these discussions too soon can mislead the patient and his or her loved ones into thinking that the patient’s condition is worse than expected or that you and other providers have “given up” and are not exploring all options. Some patients will bring up the topic without prompting. Others will find contemplating their mortality anxiety provoking, initially responding along the lines of “I don’t want to think about that.” According to a poll by the Henry J. Kaiser Family Foundation, 57% of adults over the age of 65 have had a conversation with a physician or other health care provider about end-of-life care.4 Terminal patients in this age group may be eager to have this conversation. Others may remain silent or passive, relying on the physician to make decisions for them even though the physician is not the appropriate person to make those decisions. If the patient is hesitant, set it aside. Bring it up again later, after the patient has had more time to reflect. Time may allow the patient to process the information and become more receptive to planning their end of life.
Beyond providing patients with a knowledgeable and understanding ear, physicians can identify potential treatment pitfalls and important preferences — medical or otherwise — pertaining to the patient’s condition, treatment, and arrangements. ADVANCE CARE DIRECTIVES Advance health care directives provide the legal basis for end-of-life care decisions when patients are incapable of making decisions for themselves. There are two basic components: • A durable power of attorney for health care (also called a health care proxy) is when the patient designates someone else to make medical decisions on his or her behalf in case the patient becomes incapable of making these decisions. This designee can be called the patient’s agent, representative, attorney-in-fact, or surrogate and is usually a relative or spouse, although another family member, close friend, life partner, caregiver, priest, or rabbi may fill this role.5 This person usually must be 18 years of age or older and in many states cannot be the patient’s health care provider, provider’s employee, or owner/operator of the patient’s health care facility, even if that person is a trusted family member.5 This designation may include instructions and/or limits on decision making. The designee cannot override the patient if the patient remains capable of understanding and communicating his or her wishes.6 • A living will states the types of treatment a patient wants – and does not want – if he or she becomes unable to communicate. It is not to be confused with, nor does it supersede, the patient’s last will and testament pertaining to property, finances, etc. A living will expires upon the patient’s death, with only two possible exceptions: choices regarding organ or tissue donations and autopsy.6 If the patient does not have advance health care directives in place, medical care decisions fall to available family, friends, or clergy. If family members can’t be located, a physician or health center may ask for a guardian to be legally appointed to make decisions on behalf of the patient.7 What treatments can the patient designate in an advance health care directive? They can include: • transfusions of blood and blood products; • diagnostic tests; • dialysis, breathing machines, and other life support systems, either in all situations or in specified circumstances; • administration of specified drugs; • resuscitation if breathing or the heart stops;
CME • tube feeding; and • surgery.6, 8 The physician needs to determine if the patient has these documents in place. If these documents are in place, copies should be included in the patient’s medical record to guide future care and doctor-patient discussions. If these documents have not been created, the patient should be encouraged to do so and share them with family and others, as appropriate – including the physician. This eliminates a typical dilemma: medical staff and loved ones unaware that advance directives exist, where they can be found, and what they address. (When the patient shares the documents with you, ensure any state requirements regarding notarization or witnesses are met). When provided with directives, ask the patient if they are up-to-date. If not, treatment options may now exist that were unavailable or unknown when the directives were prepared. In this circumstance, inform your patient of any new options and choices to make. All states have their own advance health care directives forms, often available online. Form requirements vary, as do the extent of the “legalese” they include or their readability. Some states require witnesses and other signing formalities. Forms usually do not require an attorney to fill them out, although it may be advisable. It also can be advisable for the patient to provide final form copies to a selected attorney.9 Sometimes forms are worded broadly or have multiplechoice options that are too vague to fully guide a patient’s decisions. Physicians are legally obligated to respect the patient’s treatment wishes. For this reason, it is important to understand the patient’s values, beliefs, and specific wishes. Having these directives in place can help you avoid disputes and future difficult decisions. THE FIVE WISHES MODEL If the patient does not have advance directives in place, consider referring the patient to Five Wishes, an advance directives model created by the nonprofit organization Aging with Dignity. The document is designed to help guide end-of-life decisions and provide important, comprehensive information to help users make those decisions.10 A national version of the Five Wishes document was introduced in 1998, after consultation with several leading medical experts and the American Bar Association’s Commission on Law and Aging.11 It meets legal advance directive requirements in 42 states and the District of Columbia10 and has been distributed by partner Q2 | the Reporter
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CME organizations, such as the Robert Wood Johnson Foundation.12 It is available online in 28 languages and in Braille. Using the document, the patient is guided to state the following wishes: • Wish 1: The person I want to make health care decisions for me when I cannot make them myself. • Wish 2: My wish for the kind of medical treatment I want or do not want. • Wish 3: My wish for how comfortable I want to be, addressing options for pain management, personal grooming, bathing, and hospice care. • Wish 4: My wish for how I want people to treat me, concerning matters such as whether a patient prefers to be at home, desires prayers at the bedside, and more. • Wish 5: My wish for what I want my loved ones to know, dealing with matters of forgiveness, how the patient wishes to be remembered, and choices regarding funeral or memorial arrangements.13 DOCUMENTING DISCUSSIONS, DECISIONS, AND CHANGES Relying on memory can be tricky, and it is not uncommon to misinterpret something a patient says during a discussion. Taking notes and documenting discussion outcomes can be critically important. Review your documentation with participants and ask them if you have captured the discussion and resulting decisions correctly. In some cases, patients’ choices change as they enter the final stages of life. As options vanish, setbacks occur, or fatality looms, new information can be shared and discussed that may influence patient decisions. Should new choices be made, physicians may need to alter medical care and document all changes in the patient’s record. Plan on reviewing patient wishes often so there are no surprises. Invite caregivers and other loved ones to participate in these discussions. This will ensure they are up-to-date on the patient’s choices. If necessary, the physician may participate and ask clarifying questions, so there are no misunderstandings. Document in the patient’s record who was present, what matters were discussed, decisions made, and any outstanding matters, along with the date, location, and time. Legal issues can become more pronounced as a physician deals with a dying patient and surrounding circumstances. Even when conflicts do not appear or seem to exist, it is a 6
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best practice to remain especially vigilant in following all directives as closely as possible. Compiling complete, appropriate documentation is also critical. Watch for any friction that may develop among your patient’s family members, loved ones, and/ or the health care proxy. Disagreements on treatment can suddenly and unexpectedly surface. At such times, documenting all key determinations made along the way can help protect the physician in the event of a claim. For example, if the patient does not have a living will, but is competent and able to tell the physician of his or her wishes, a good practice for the physician would be to have two witnesses present in the discussion, document what is said in the patient’s record, and gain agreement from all present that what you captured is correct and complete. Also retain the witnesses’ names, date, and time of the discussion in the patient’s medical record.14 Guidance on how best to document discussions and decisions in the patient’s records may be attained from a qualified attorney. Hospitals and other large providers usually employ legal counsel to provide such guidance. Medical practices without legal counsel should consider finding a good attorney for end-of-life consults. WORKING WITH THE PATIENT’S HEALTH CARE PROXY The patient’s health care proxy will be called upon to interact with the physician for a variety of decisions and authorizations. Besides consenting (or not) when it comes to the patient’s medical treatment options, this person may be designated by the patient to: • • • •
hire and fire medical personnel; choose medical facilities, as needed; make hospital visits, even during restricted hours; access the patient’s medical records and other personal information; • seek court authorization to obtain or withhold medical treatment, should the physician and/ or hospital decline to honor a living will or the designee’s authority; and • authorize an autopsy or donate organs or tissues. Usually, patients are discouraged from placing any limits on designees should medical situations arise beyond the scope of what is in the living will or documented in earlier discussions. However, limits may be in place and the physician should be aware of any that exist.6 Certain circumstances may lead the physician to conclude that the proxy is not making decisions in the patient’s best interests. Physicians can challenge decisions in conjunction with the hospital or facility administration and/or the institution’s ethics committee.
QUESTIONS TO ASK When the prognosis suggests death, encourage your patient to provide you with some guidance on how to facilitate a dignified, comfortable end of life. Answers to the right questions can enlighten the physician, caregivers, and loved ones while enhancing the patient’s remaining days. Here are some questions that can prove helpful. • What do you understand about your illness and all its implications? When a patient is ready to talk, a good start is ensuring he or she fully understands the illness or injury and prognosis. Ask the patient how he or she sees the situation medically. As the patient responds, provide important, missing information and clear up any misunderstandings. • Do you want to pursue every possible route to a cure? Patients deserve to be apprised of “long shot” and alternative treatment options. The physician can provide pros and cons, but must be careful not to influence the patient’s decision. Discuss what can happen physically, emotionally, and financially. Purposely withholding information, such as an alternative treatment a physician may consider objectionable, can pose serious medical and legal risks. A physician must try not to let anything keep him or her from ensuring a patient has the opportunity to die as he or she expressly wishes. If such a conflict is irreconcilable, care should be transferred to another physician. • How much pain is acceptable? This can be central to the patient’s quality of life and help dictate medical steps the physician can take. This question should also be asked repeatedly if pain increases. • What treatment scenarios or outcomes would you consider worse than death? Ask specific questions: Do you proceed with using feeding tubes or would the patient rather be able to continue conversing with loved ones? Which scenario would the patient prefer: continue chemotherapy and experience extreme fatigue or discontinue chemo and have more energy to travel and visit relatives? • What are your remaining goals and priorities? The patient may hope to reach a milestone birthday, or see a child married or grandchild born. Possibilities for keeping the patient alive long enough to reach a goal (with realistic expectations set) should be discussed and pursued when possible. • What affairs do you need to get in order, or discuss with loved ones or others? Getting closure on questions relating to one’s finances, property, and/or personal relationships can become top priorities. Similarly, a patient may desire religious
CME counsel about what he or she should accomplish in the final days. • Who do you want (or not) to be involved in your care? The patient may name others in addition to the patient’s health care proxy to be involved in decisionmaking. The patient may also have clear ideas of who should not be involved. Having the patient articulate preferences can make it easier to inform family and friends. The physician may remind loved ones of the patient’s stated preferences if/when the patient loses the ability to do so. • Do you prefer to be actively involved in new decisions about your medical care or would you rather have your doctor(s) do what they think is best? The physician needs to be careful not to take on responsibility held by the health care proxy. But there may be instances when the physician should decide and act, with the patient’s prior approval. It is appropriate to consult with an attorney to obtain overall legal guidance with any questions in this regard. • In what location do you want to receive care? The patient may have strong feelings about where to live during his or her remaining days: at home, a relative’s home, hospice center, nursing facility, or hospital. If the patient’s condition rules out an option, such as being at home, the physician should inform the patient. • What would be an unacceptable outcome of treatment? Frequently, patients will say they do not wish to be kept alive in a comatose state; endure intense or long-lasting pain; or lose the ability to walk, speak, or breathe on their own. Asking this question may create opportunities for discussion about life-saving measures, hospice care, and pain relief options. It may be less stressful for the patient to address these topics later in the course of treatment after initial fear and shock have lessened. • What would a good day look like? This helps the patient look ahead and come to appreciate positive aspects of the remaining days. A “good day” will look different as the patient’s condition worsens, so ask this question periodically. • When would you like to shift from focusing on curative care to focusing more on palliative (comfort) care? It is a difficult scenario to consider, and the patient should have time to carefully contemplate a response. The physician can provide guidance from a medical perspective, but it is best to Q2 | the Reporter
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CME encourage the patient to discuss it with trusted loved ones; make a determination; and fully inform loved ones and the proxy how to move forward. Prepare to deal with strong emotions and anxiety in such discussions. Let empathy and tact guide you. Ultimately, these discussions can facilitate the development of a comprehensive, medically sound treatment plan that reflects the patient’s wishes and values and is supported by loved ones. Here are additional items to discuss with the patient and/or the health care proxy. Again, document these discussions in the patient’s record. • Providing food and water by intravenous (IV) means should the patient become comatose. Unless the patient specifies that this be withheld, a physician may be obligated to provide nutrients and fluids indefinitely to prolong life. Permanently unconscious patients can live for years with artificial feeding and hydration, or they may die soon after IVs are removed. What does the patient want? 6 • Palliative care and pain/symptom relief. Death can occur naturally, without life-extending intervention, but that does not mean the patient must experience pain or discomfort. Palliative care supports quality of life and patient dignity. It can also accompany curative treatment. What are the patient’s feelings and preferences about such care? 6 • Do not resuscitate (DNR) orders and Physician’s orders for life-sustaining treatment (POLST) forms. Critically ill patients may prefer having a DNR order. Patients can alert paramedics that a DNR order exists by wearing a medical bracelet, necklace, or anklet with this information. DNR orders can be added to medical records at the hospital where the patient expects to be transported. Ethical issues can surface if a patient with a DNR order requires surgery that involves anesthesia. The primary care physician, surgeon, and anesthesiologist may consider discussing with the patient their medical reasoning for suspending the DNR order. Documenting this discussion and decision can be very important from a risk management perspective. In a growing number of states, DNR orders are included in or replaced by broader guidance called POLSTs. These forms can specifically address other life-prolonging treatments, such as intubation, antibiotic use, feeding tubes, and more. They should 8
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reflect the patient’s preferences in advanced care directives, but should not be considered a substitute for directives.6 Specific options for resuscitation and life-sustaining treatment and their likely outcomes should be fully discussed and documented. For example, what many patients know about cardiopulmonary resuscitation (CPR) comes mainly from TV shows or movies, where CPR routinely is successful and full recoveries often occur. Patients need to understand that the likelihood of survival relates directly to the underlying ailment. In certain situations, CPR may not work or may not prolong meaningful life. KEY CONCERNS AS THE END NEARS When patient death is imminent, a new set of issues may arise. A patient may suddenly reverse course and insist that everything be done to prolong life. The patient may want to disregard what was previously agreed upon, documented, or provided in a living will. When this happens, the best approach is to maintain your medical role and provide reasonable, clinical information. Clearly, perhaps repeatedly, state the prognosis. Explain if further treatment may or may not help, and the chances or likelihood of success. Inform the patient if attempts to prolong life might cause pain, suffering, or other complications. While maintaining a logical approach to these conversations, ensure that you measure the information you provide with empathy and caring. Provide the patient with the facts along with kindness and focused attention. Providing the patient and loved ones with this kind of clarity may help them to focus, fully understand their options, and make peace with the prognosis and their previous decisions. You may be asked to discuss further medical costs. This is not a topic physicians commonly discuss with patients, and knowledge may be limited or outdated. It may be prudent to ask a hospital, practice, or group administrator to speak with the patient or health care proxy about this information. Again, document in the patient’s record any discussions regarding a change to the treatment plan, who participated in the discussion, issues discussed, and what decisions were made. Include any referrals, along with the date, location, and time. MEDICARE BENEFITS Medicare covers a comprehensive set of end-of-life services, including hospital and home health care, physician services, and diagnostic tests. Many services can be used for curative or palliative purposes, or both. Terminally ill Medicare beneficiaries are eligible for
CME
hospice benefits that include services not otherwise offered by traditional Medicare, such as bereavement services.15 Medicare also reimburses physicians for conducting advance care planning discussions with patients. “Establishing separate payment for advance care planning codes to recognize additional practitioner time to conduct these conversations provides beneficiaries and practitioners greater opportunity and flexibility to utilize these planning sessions at the most appropriate time for patients and their families.” 16 Advance planning is also covered if provided by nonphysician practitioners, including nurse practitioners, clinical nurse specialists, certified nurse midwives, and physician assistants.17 THE GIFT OF CARE For many physicians, the road toward earning a medical degree began with the commitment and desire to help others. At a patient’s end of life, emotions, questions, and hope are raised for everyone involved, including the physician. But helping someone pass away on his or her own terms, in comfort, peace, and dignity, can be a profound experience for a health care provider. Thoughtfully and carefully fulfilling your role as physician, guide, and caregiver represents an extraordinary and meaningful final gift to your patient. SOURCES 1. AMA Code of Medical Ethics, 2016. American Medical Association. Available at https://www.ama-assn.org/deliveringcare/ama-code-medical-ethics. Accessed June 8, 2017. 2. Opinions on caring for patients at the end of life. AMA Code of Medical Ethics, Chapter 5, Section 5.1. 2016. American Medical Association. Available at https://www.ama-assn.org/sites/default/ files/media-browser/code-of-medical-ethics-chapter-5.pdf. Accessed June 8, 2017. 3. John A. Hartford Foundation, “Improving Advance Care Planning: Research Results from the ‘Conversation Starters’ Focus Groups and ‘Conversation Stopper’ Physician Survey,” Dec. 1, 2016. Available at http://www.johnahartford.org/newsroom/view/ advance-care-planning-poll. Accessed June 2, 2017. 4. DiJulio, Bianca; Firth, Jamie; and Brodie, Mollyann, “Kaiser Health Tracking Poll: September 2015,” Sept. 30, 2015. Available at http://kff.org/health-costs/poll-finding/kaiser-health-trackingpoll-september-2015/. Accessed June 2, 2017. 5. Health care agents. Medline Plus website. Available at https:// medlineplus.gov/ency/patientinstructions/000469.htm. Accessed May 23, 2017. 6. Irving, Shae. “What do a living will and power of attorney for health care cover?” Nolo website. Available at http://www.nolo. com/legal-encyclopedia/living-will-power-attorney-medicalissues-29536.html. Accessed May 23, 2017.
7. What if I don’t make an advance directive? Advance Directives. Cedars-Sinai. Available at https://www.cedars-sinai.edu/Patients/ Programs-and-Services/Healthcare-Ethics-/Advance-Directives.aspx. Accessed May 22, 2017. 8. U.S. Centers for Medicare and Medicaid Services, “Advance Directive & Long-Term Care.” Available at https://www.medicare. gov/manage-your-health/advance-directives/advance-directivesand-long-term-care.html. Accessed June 2, 2017. 9. Kam, Katherine. “Advance Directives: Having the Talk,” 2011. WebMD website. Available at http://www.webmd.com/palliativecare/features/advance-directives-having-the-talk#1. Accessed May 22, 2017. 10. Five Wishes. Aging with Dignity website. Available at https://www. agingwithdignity.org. Accessed May 22, 2017. 11. Sabatino, Charles P. Esq., “National Advance Directives: One Attempt to Scale the Barriers”, National Academy of Elder Law Attorneys Journal, Volume 1, 2005. Available at http:// www.americanbar.org/content/dam/aba/administrative/law_ aging/2012_aging_arth5025_ntnadvncdrctvs_tb.authcheckdam.pdf. Accessed June 2, 2017. 12. Robert Wood Johnson Foundation, “Aging with Dignity: Five Wishes, Jan. 1, 1997. Available at http://www.rwjf.org/en/library/ research/1997/01/aging-with-dignity.html. Accessed June 2, 2017. 13. Five Wishes sample. Aging With Dignity website. Available at https://agingwithdignity.org/docs/default-source/defaultdocument-library/product-samples/fwsample.pdf?sfvrsn=2. Accessed May 22, 2017. 14. Bryant, Cathy, “End of Life Issues,” Texas Medical Liability Trust’s The Reporter, 2012 Volume 3. Available at http://resources.tmlt. org/PDFs/Reporter/2012_Volume3.pdf. Accessed June 2, 2017. 15. 10 FAQs: Medicare’s role in end-of-life care. The Henry J. Kaiser Family Foundation. September 26, 2016. Available at http://kff. org/medicare/fact-sheet/10-faqs-medicares-role-in-end-of-lifecare/. Accessed May 22, 2017. 16. Proposed policy, payment and quality provisions changes to the Medicare Physician Fee Schedule for Calendar Year 2016. U.S. Centers for Medicare & Medicaid Services. Available at https://www.cms.gov/Newsroom/MediaReleaseDatabase/Factsheets/2015-Fact-sheets-items/2015-10-30-2.html. Accessed May 23, 2017. 17. Moeller, Philip. “5 things you should know about Medicare’s new end-of-life discussions,” PBS Newshour. January 20, 2016. Available at http://www.pbs.org/newshour/making-sense/5things-you-should-know-about-medicares-new-end-of-lifediscussions/. Accessed May 23, 2017.
Steve Taylor can be reached at
[email protected].
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By Lesley Viner, MS, Assistant Vice President, Risk Management
2016 RISK MANAGEMENT TRENDS ANALYSIS
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TMLT’s Risk Management department continually seeks out new ways to enhance existing services and create new programs that meet the needs of physicians. This work is guided by tracking and analyzing data collected from TMLT practice reviews, consultations, and CME topic requests. In 2016, trends were identified after collecting and analyzing data in the following areas: • top recommendations made by risk managers to participating physicians following a practice review; • most requested CME program topics by physician groups; and • most frequent topics addressed with phone and e-mail consultations. PRACTICE REVIEWS A TMLT practice review assists physicians with determining and addressing medical liability risks that may exist in their practice setting. During a practice review, a member of the TMLT’s risk management team will: • evaluate medical record documentation to increase defensibility; • review practice policies and procedures to ensure protocols are appropriate; • tour the practice or provide a remote assessment; and • provide customized feedback with a confidential, written summary containing recommendations and strategies for risk reduction. In 2016, TMLT risk managers gave the following 10 recommendations most frequently after reviewing medical practices: 1. Documenting after-hours calls Documentation of after-hours patient telephone calls should be evident in the medical record. Documenting after-hours calls in the patient records, including any instructions given to patients, is vitally important. This information can serve the physician and subsequent caregivers in providing consistent, quality patient care and documents evidence of instructions given to the patient in response to a specific medical complaint. 2. Electronic health record (EHR) policies and procedures The practice should have written policies for EHR processes, and policies should be kept current. Federal privacy and security rules require that practices develop protocols to protect the integrity and security of electronic protected health information (PHI). EHR policies may include topics such as documentation of a privacy and security risk analysis, privacy and security training for staff, and other protocols for protection of PHI. Policies should be signed by the physician and include implementation dates. Staff members should sign and date their acknowledgement and understanding of the policy.
3. Practice policies and procedures The practice should have a current policy and procedure manual for patient care. Basic policies and procedures to direct staff should be in place, such as: • • • • •
communications with patients; medication refills; order tracking systems; missed appointments; and emergency protocols.
These are critical areas that lend themselves to standardization and should be outlined. As with EHR protocols, policies and procedures should be signed by physicians and staff members and include implementation and revision dates. It is recommended that policy and procedure manuals be updated annually and as needed if protocols change in the practice. 4. Documenting the name of the person accompanying patient Documentation of the person(s) accompanying the patient during an office visit should be evident in the medical record. Because important instructions and education regarding the patient’s assessment and treatment plans are discussed, it is important to note who is present during the visit. This is particularly important when treating minors. Documenting this information in the record can be helpful should a question arise regarding the care provided. 5. Pre-formatted text or templates Preformatted text or templates in the EHR should be edited. When using preformatted text or templates in electronic health records, edit entries as necessary to ensure the record accurately reflects the clinical care delivered. Inconsistent or contradictory information in the record, due to defaulting of text or the cloning of information from one visit to the next, could be a challenge in defending a claim or medical board complaint. 6. Patient return visit or follow up Medical records should include the patient‘s recommended return visit. It is important, for the continuity of patient care, to document when the patient should return for a follow up visit. This enables office staff to schedule the visit, preventing possible allegations of failure to diagnose and treat. 7. Medication review and update Review of current medications should be documented in the patient’s record. New patients should be encouraged to bring all current medications with them to the initial visit. Prescription and over-the-counter medications should be reviewed and updated in the record at each visit to monitor compliance and help prevent adverse drug reactions. If your clinic is providing patients with visit summaries and medications have not been updated, erroneous medication Q2 | the Reporter
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information could be given in writing to the patient. This could be a challenge to the defense of a claim in which medication errors are alleged. 8. Tracking system The practice should have a consistent process in place to track consultant referrals, lab, or diagnostic tests. When patients are referred to consultants or to an outside source for lab or diagnostic tests, a tracking system is recommended to ensure the patient is seen and results are received and reviewed. 9. Documenting patient phone calls Documentation of patient telephone calls during office hours should be evident in the medical record. Documenting patient phone calls and any instructions given to patients in their medical records is recommended. As with the documentation of after-hours calls, this information can serve the physician and subsequent caregivers in treating the patient, and is documented evidence of the advice given. 10. Documentation of diagnostic report review Incoming consultant reports, diagnostic results, or outside tests should include documentation of physician or provider review. Timely review, whether in electronic or paper format, should be documented in the patient’s record before scanning or filing. Documentation of the physician’s review demonstrates that results were seen in a timely manner. When appropriate, documentation regarding action (or inaction) on specific results and the physician’s decision rationale should be noted in the patient’s record. CME PROGRAMS TMLT is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education (CME) programs for physicians. A variety of CME options are available for policyholders, including online courses, live seminars, and in TMLT publications, such as the Reporter newsletter and Case Closed books, TMLT’s award-winning series featuring closed claim studies. In 2016, the top 10 CME program topics provided to physician groups were the following: 1. 2. 3. 4. 5. 6.
Closed claims: a review of malpractice cases; Physician-patient communication; Cyber liability; Best practices in EHRs; Regulatory and legislative updates; Appropriate termination of the physician-patient relationship; 7. Texas Medical Board rules and complaints; 8. Social media risks; 9. Affordable Care Act and physician reimbursement; and 10. Current trends in risk management and malpractice allegations. 12
the Reporter | Q2
PHONE AND EMAIL CONSULTATIONS TMLT risk managers are available during business hours for confidential phone and e-mail inquiries. In addition, a variety of sample resources are available to assist physicians and staff members with incorporating risk management best practices. The top 10 phone/e-mail inquiries received by risk managers in 2016 focused on the following topics: 1. Appropriate termination of the physician-patient relationship; 2. Texas Medical Board compliance and regulatory issues; 3. General office questions; 4. Medical records; 5. HIPAA compliance; 6. Selling or closing a practice; 7. Prescription issues; 8. Patient visits; 9. Release of medical records; and 10. Treatment of minors. TMLT encourages policyholders to take advantage of risk management services including practice reviews, CME programs, phone/e-mail consultations, sample forms, and resources. Discounts are available for TMLT policyholders who participate in select services. Visit the TMLT website or contact the Risk Management department at 800-580-8658 for more information. Lesley Viner can be reached at
[email protected].
JULY 8, 3:30 PM Alamo Drafthouse - Slaughter Lane, Austin
BETTER COMMUNICATION THROUGH IMPROV Sign up for this exciting, interactive seminar with Robert Milman, MD and Shana Merlin, award-winning instructor of “professionally planned fun.” Enjoy a meal and network with your colleagues while earning 2 CME credits, including 1 ethics credit, and a 3% premium discount on your next eligible policy period. While you attend the seminar, your family is welcome to enjoy a meal and private screening of a new summer blockbuster next door.
Using hands-on activities, instant feedback, and practical learning, the exercises in this workshop focus on presence, connection, communication, and collaboration. People are on their feet having fun and learning communication skills to build patient trust and improve teamwork to help achieve optimal patient outcomes. Learn new techniques to ensure that your messages land with impact. Discover how to let go of what you want to say and tune in to what your listener needs to hear. This workshop provides you with the tools and techniques to be a better listener, a better communicator, and, ultimately, a better physician.
BRING YOUR FAMILY TO WATCH
WHILE YOU EARN CME CREDITS!
Movie subject to change. Details and registration at
www.tmlt.org/summerCME
CLOSED CLAIM STUDY
1
By Laura Hale Brockway, ELS, Assistant Vice President, Marketing
FAILURE TO MONITOR PATIENT
PRESENTATION In 2007, a 65-year-old man began seeing Family Physician A for treatment of high cholesterol and bronchitis. Over the next two years, the patient was seen for routine care.
This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates how action or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. This study has been modified to protect the privacy of the physicians and the patient.
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the Reporter | Q2
PHYSICIAN ACTION In March 2009, the patient was diagnosed with a pulmonary embolism and placed on warfarin, with a maintenance dose of 10 mg. The results of a work up for coagulopathy were negative. Family Physician A followed the patient’s INR values monthly, and there were no complications. The warfarin was discontinued one year later. The patient continued seeing Family Physician A for routine care, including yearly exams. In October 2013, the patient was diagnosed with deep vein thrombosis (DVT) of the right leg and started on enoxaparin and warfarin until his INR was in the therapeutic range. The patient was next seen on November 19 to discuss his medications; on December 9 for constipation; and on January 19 for cough and shortness of breath. At that visit, he received a nebulizer treatment, a triamcinolone injection, and a sample of a steroid inhaler. There was no INR testing done at any of these visits. After returning from a trip to Hawaii, the patient came to Family Physician A on February 22. He reported left upper thigh and groin pain, along with intense mid-thigh pain radiating to his left buttock. Family Physician A examined the patient and did not find any symptoms of palpable abnormalities in the left groin. The results of a D-dimer ruled out another pulmonary embolism, with values less than 100. Family Physician A prescribed naproxen and a muscle relaxer. In the progress note for this visit, Family Physician A stated that the patient was taking rivaroxaban. However, the medication list indicated warfarin, 10 mg. Family Physician A believed that she wrote a prescription for rivaroxaban; but the insurance company would not pay for rivaroxaban, so the patient was continued on warfarin. That change was not well documented and there was no INR monitoring. The patient returned to the clinic 48 hours later. He was seen as an urgent care patient due to increasing pain radiating down his left leg. Family Physician B examined the patient and described diffuse tenderness and swelling in the patient’s left thigh and with ecchymosis in his groin. The results of a stat INR test were extremely high at 12.8 with an elevated prothrombin time of 153. He was diagnosed with a probable retro-peritoneal hemorrhage, secondary to warfarin toxicity. The patient was admitted to the hospital, and his warfarin toxicity was reversed with Vitamin K. He had a retroperitoneal hemorrhage in his left iliac fossa that was evacuated percutaneously, providing immediate pain relief. The patient’s warfarin and naproxen were stopped. Five days later, he was discharged and prescribed rivaroxaban, 10 mg.
1
CLOSED CLAIM STUDY CLOSED CLAIM STUDY The patient returned to Family Physician A several more times, reporting left leg weakness. The results of an MRI showed some disc disease, so the patient was referred to a neurosurgeon. After reviewing the results of two EMG studies, the neurosurgeon indicated that the leg weakness was secondary to femoral nerve neuropathy caused by the retro-peritoneal hemorrhage. At his last office visit with Family Physician A, the patient still had weakness in his leg. ALLEGATIONS The patient filed a lawsuit against Family Physician A, alleging that she failed to appropriately monitor the patient’s INR while prescribing warfarin. This failure led to a retro-peritoneal hemorrhage and left femoral nerve neuropathy with persistent leg weakness. LEGAL IMPLICATIONS Physicians who reviewed this case identified several weaknesses in the physician’s care. It was clear in the records that there was confusion about whether the patient was taking warfarin or rivaroxaban. As it turned out, the patient was taking warfarin and his INR level was not being monitored. Additionally, there was no indication in the medical records that the patient was counseled about the necessity of INR monitoring or about the risks of taking warfarin. DISPOSITION This case was settled on behalf of Family Physician A. RISK MANAGEMENT CONSIDERATIONS Anticoagulation therapy can have life-threatening side effects, even when the treatment plan is properly monitored. Performing follow-up blood work to determine INR levels allows the treating physician to properly prescribe anticoagulation drug so that some of the known complications can be avoided. In this claim, there was no monitoring of the patient’s INR while he was taking warfarin, and documentation of education about warfarin was missing in the medical record. Patient education that includes a discussion of the treatment plan and the risks and benefits of the medication is an important aspect of patient care. Providing this information to the patient both orally and in writing can help encourage proper follow up. Laura Hale Brockway can be reached at
[email protected].
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CLOSED CLAIM STUDY
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By Laura Hale Brockway, ELS, Assistant Vice President, Marketing
FAILURE TO TIMELY SCHEDULE FOLLOW-UP APPOINTMENT PRESENTATION In February 2012, a 77-year-old woman came to a new ophthalmology group and was seen by Ophthalmologist A. The patient’s history included a trabeculectomy in August 2003; a left-eye cataract surgery with insertion of a lens implant in December 2007; a left-eye YAG laser capsulotomy in July 2011. She also had a history of open angle glaucoma, chronic open angle glaucoma, cataract, and posterior capsule opacification.
This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates how action or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. This study has been modified to protect the privacy of the physicians and the patient.
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the Reporter | Q2
2
CLOSED CLAIM STUDY CLOSED CLAIM STUDY
PHYSICIAN ACTION During her first visit with Ophthalmologist A, the patient’s intraocular eye pressures (IOP) were 17 mm Hg in the right and 16 mm Hg in the left. Normal range is 12 to 22 mm Hg.
When seen by Optometrist B, the patient’s IOP was measured multiple times, once showing 35 to 36 mm Hg and a second time at 32 mm Hg. Ophthalmologist A prescribed brimonidine three times daily and increased the timolol to twice daily.
On March 20, Ophthalmologist A performed a phacoemulsification cataract extraction with intraocular lens implanted in the right eye. The patient returned the next day and was seen by Optometrist A, who handled care for Ophthalmologist A’s post-surgical patients.
The patient returned two days later and reported no improvement in her vision. Her IOP was 33 mm Hg. Ophthalmologist A prescribed acetazolamide and dorzolamide/timolol, and told the patient to discontinue the difluprednate and timolol. Ophthalmologist A saw the patient three more times in April and May. The patient’s IOPs remained in the upper teens, and she continued to report hazy vision in the right eye.
The patient reported a mild, dull pain and complained that she was seeing through a milky film. The patient confirmed that she was on moxifloxacin, nepafenac, and difluprednate drops, and stated that she had not applied the drops before coming to the office that day. She also confirmed that she was taking timolol in both eyes at night. The patient’s visual acuity was 20/50 +2 with an IOP of 31 mm Hg in both eyes. A slit lamp exam indicated trace inflammation. Optometrist A’s impression was history of chronic open angle glaucoma and IOPs slightly elevated. He told the patient to return in one week. The patient’s follow-up appointment was scheduled for April 2, 11 days after her appointment with Optometrist A. The patient — who was seen by Optometrist B — reported that she was “not happy with the condition of right eye” and was experiencing “poor quality vision.” Her visual acuity was 20/60 and her IOP in the right eye was 40 mm Hg. Optometrist B referred her to Ophthalmologist A, who saw the patient that day.
On July 1, the patient was referred to a glaucoma specialist, who performed a laser trabeculoplasty and a YAG laser capsulotomy. The patient never returned to Ophthalmologist A, but subsequent testing with another ophthalmologist showed the patient’s right eye had only a central island of remaining vision. ALLEGATIONS The patient filed a lawsuit against Ophthalmologist A, Optometrist A, and their group. The patient claimed that she suffered permanent peripheral vision loss because Ophthalmologist A’s staff failed to schedule her eye exam within seven days, as directed by Optometrist A. This delay allowed her IOPs to remain elevated and caused her vision loss. LEGAL IMPLICATIONS Consultants and experts who reviewed this case — both for the plaintiffs and for the defendants — stated that Q2 | the Reporter
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CLOSED CLAIM STUDY
2
because the patient’s IOP was 31 mm Hg at the visit on March 20, she should have been seen again within 24 to 48 hours. This would have allowed Optometrist A to make sure the patient’s pressures were monitored and controlled. Although it was expected that she would experience an increase in IOP postoperatively, 11 days without monitoring was too long. Optometrist A, Ophthalmologist A, and an expert reviewing the case for the defense agreed that the plan for follow up within seven days was reasonable. Optometrist A testified that he wrote a note stating that he wanted to see the patient in seven days, but that he did not know why staff did not schedule the appointment within that time. Open appointments were available, but there were no records and no one could recall why the appointment was not scheduled within seven days. The patient testified that she was never told about her elevated IOPs. She further stated that if she had known that she needed to be seen within seven days, she would have made sure she was seen.
RISK MANAGEMENT CONSIDERATIONS The lack of attention to detail and accuracy in scheduling the follow-up appointments was the most apparent issue in this case. Every practice needs a protocol for prioritizing appointments to assure continuity of care. When patient care protocols are in place, staff members may be asked to read, sign, and date them to indicate their understanding and acknowledgement of the practice’s policies. Another risk management issue identified in this case involved lack of communication with the patient regarding timely follow up. It is recommended that patients be told about their conditions, along with the reason for follow up appointments. Enlisting patients as partners in their own care can help avoid allegations of failure to follow up. Document patient communications in the record, including changes to the treatment plan, participants in the discussion, issues discussed, decisions, and referrals made. Include the date, location, and time. Laura Hale Brockway can be reached at
[email protected].
DISPOSITION Given the issues related to the appointment scheduling, the case against the ophthalmology group was settled. The case against Ophthalmologist A and Optometrist A was dropped.
Want CLOSED CLAIM STUDIES sent DIRECTLY TO YOUR INBOX? Receive one study each month with TMLT’s Case Closed e-newsletter, a publication featuring closed claim studies.
Subscribe at goo.gl/Nh10dr
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the Reporter | Q2
By Cathy Bryant, Manager, Product Development and Consulting Services
A GUIDE TO CHARGING YOUR PATIENTS FOR MEDICAL RECORD COPIES
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A
s medical record formats change from paper to electronic, the rules for charging your patients for copies of their medical records have also evolved. This issue becomes even more complicated when one considers the differences between federal and Texas guidelines, and charging a patient versus charging a third party. Texas physicians, providers, and health care entities must consider both federal and Texas guidelines when determining what to charge patients for copies of their records. Federal and Texas rules require that the charges be reasonable and cost-based, unless the federal flat fee is used. Whichever method you follow, you must be able to justify what you or your practice charged the patient. When considering Texas guidelines, providers are cautioned not to simply default to charging the maximum allowable amount as outlined in the Texas Administrative Code; these dollar amounts are not flat fees. However, if the record request comes from a third party, such as an attorney or insurance company, the Texas guidelines should be followed. Here is a brief description of federal and Texas rules for charging for medical record copies. FEDERAL ALLOWABLE CHARGES According to federal law, a provider or business associate operating on behalf of the provider may use one of the following methods to charge a patient a reasonable fee for copies of their medical records: • Flat rate of $6.50: the provider may charge a flat fee of no more than $6.50 (this covers all labor, supplies, and postage) for requests of electronic copies of the patient’s protected health information (PHI). This charge may be used per request if the provider does not want to calculate or track costs of requests for electronic copies of PHI; or
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• Actual cost: the provider may calculate and charge the actual allowable* cost to fulfill each patient request; or • Average cost: the provider may develop a schedule of costs based on average, allowable labor costs to fulfill standard requests. *In this scenario, “allowable” refers to costs related to the labor, supplies, postage, and any preparation of an explanation or summary of the patient’s PHI.1 It should be noted that there may be some unusual requests that lie outside of this fee structure. In these circumstances, the provider may calculate actual costs as long as the costs are reasonable and only of the type permitted by the Privacy Rule.1 According to the U.S. Department of Health and Human Services (HHS), health care organizations must also inform those requesting copies in advance of the approximate fee for this service, and should post on their websites or otherwise make available an appropriate fee schedule for copy requests.1 TEXAS ALLOWABLE CHARGES Texas guidelines are different from federal rules in that the Texas Medical Board (TMB) allows providers to charge patients a reasonable, cost-based fee for copies of their records based on the type of record requested (paper, electronic, or a combination).2 However, many practices mistakenly use the Texas guidelines (listed on the next page) as a default amount to charge. Charges should be reflective of the cost to actually produce the copies, and practices should understand that the TMB charges are maximum allowable charges.2 See examples at the end of this article for clarification and scenario illustrations.
• Paper format: The provider may charge no more than $25 for the first 20 pages and $.50 per page for every copy thereafter. For example, if a record is 25 pages, the provider may charge $27.50 ($25 + 5 x $.50). Or if a record is 30 pages, the provider may charge $30 ($25 + 10 x $.50).
show how they calculated the cost of $25, either as actual or average costs. If the practice cannot justify the cost, the OCR might investigate the practice for a HIPAA violation.
• Electronic format: The provider may charge no more than $25 for 500 pages or less; $50 for more than 500 pages.
2. Electronic copy requested by the patient A patient requests a copy of the medical records from his last office visit and lab work electronically on a flash drive. The office staff copies 10 pages of the electronic medical record to the encrypted flash drive and mails it to the patient.
• Combination or hybrid format: For a request of records that are a combination of paper and electronic formats, the provider may use the above guidelines for paper and electronic to create a reasonable charge. For example, if the patient’s record is a combination of 40 pages of paper records and 100 pages of electronic records, the provider may charge $60 (paper = $35 ($25 + 20 x $.50); electronic = $25).2
Additionally, the practice is required to provide an estimate of the charges to the patient before making the copies.
Calculating federal allowable charges Can choose from any of these three options to calculate the federal rate. Actual cost
Flat rate
Average cost
Labor for copying onto flash drive only
The scenarios below are designed to show the differences between the federal and Texas calculations.
10 min @ $20/hr
SCENARIOS 1. Paper copy requested by the patient A patient requests a paper copy of the records from her last office visit and lab work. The office staff prints 10 pages of a medical record.
Postage
Calculating federal allowable charges Can choose from any of these three options to calculate the federal rate. Actual cost
Flat rate
Average cost
Labor for copying only
Labor for copying only
15 min @ $15/hr
$3.75
20 min @ $15/hr
$1.00
$.10/page
Supplies
$.10/page
Supplies
Postage
Priority Mail
$6.50
Total
$5.00 $1.00
Postage
$6.65
$11.40
Priority Mail
Total
$6.65
$12.65
Calculating TMB allowable charges The provider may charge no more than $25 for the first 20 pages and $.50 per page for every copy thereafter. This copy is 10 pages, so the fee according to the TMB may be $25. Considerations The medical office follows the TMB guidelines and charges the patient $25 for the copies. The practice may have misinterpreted the TMB “shall be a charge of no more than” dollar amount to be the allowable amount. Had the patient complained to HHS/the Office of Civil Rights (OCR), the practice would have to be able to
$3.34
$6.67
Supplies
Supplies
Encrypted Flash Drive $9.49
Encrypted Flash Drive $9.49
Priority Mail Padded Envelope $24.95
$6.50
Labor for copying onto flash drive only
20 min @ $20/hr
Total
$37.78
Postage
Priority Mail Padded Envelope $24.95
Total
$41.11
Calculating TMB allowable charges For an electronic format, the provider may charge no more than $25 for 500 pages or less. The record is 10 pages long, so the fee according to the TMB may be $25. Considerations The practice refers to the TMB Rule and charges the patient $25. If requested by the OCR to explain how they justified the cost of $25, this practice could show that either the actual cost or the average cost for this request would have been more expensive to the patient as justification for charging $25. Conversely, if investigated by the TMB, the practice might have an issue if they had chosen to charge actual or average costs under the federal calculations, because Board Rule § 165.2(e) describes “a reasonable fee for providing the requested records in an electronic format shall be a charge of no more than $25 for 500 pages or less.” 2 3. Copy requested through patient portal A patient requests a copy of her medical records from her last office visit and lab work through the patient portal. The office staff pushes 10 pages of the electronic medical record to the patient’s portal.
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Calculating federal allowable charges Can choose from any of these three options to calculate the federal rate. Actual cost
Flat rate
Average cost
Labor for pushing records to the portal only
$5.00
15 min @ $20/hr Supplies
$8.33
$0.00
Postage
$0.00
Postage
$0.00
$5.00
Total
$0.00
$8.33
Total
Calculating TMB allowable charges “A reasonable fee for providing the requested records in electronic format shall be a charge of no more than: $25 for 500 pages or less; $50 for more than 500 pages.” 2 Considerations The practice has determined that they will not charge for records sent through the portal. A practice may elect not to charge a patient for records in electronic format sent through the patient portal, as this is a very time and cost effective way to provide requested records. 4. Combination of paper and electronic records requested by the patient A patient requests an electronic copy of his entire medical record from his physician’s office. The records for the first five years are in paper format (200 pages) and the records for the last three years are in electronic format (600 pages). Calculating federal allowable charges Can choose from any of these three options to calculate the federal rate. Actual cost
Flat rate
Average cost
Labor for copying onto CD only
30 min @ $15/hr
Labor for copying onto CD only
$7.50
Supplies
$7.50
$2.99
CD
$0.00
Priority Mail Padded Envelope $24.95
Postage
$2.99
Postage
Patient will pick up
Total
30 min @ $15/hr Supplies
CD
$6.50
$10.49
Total
$35.44
Calculating TMB allowable charges The physician responding to a request for such information that is contained in electronic and paper format (“hybrid”), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information. 22
Considerations The practice refers to the TMB Rule regarding hybrid records and charges the patient $165. They calculated the charges based on:
Supplies
$6.50
Labor for pushing records to the portal only
20 min @ $25/hr
A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and (2) of the TMB Rule § 165.2 (e).2
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• Scanning 200 pages onto a CD = $115.00 ($25 for first 20 pages and $.50 x 180 pages) • 600 pages from EHR onto the same CD = $50 ($50 for more than 500 pages) In this example, charging the patient $165 for a CD of the medical records may be difficult to justify to either the OCR or the TMB. The practice may have misinterpreted the TMB “shall be a charge of no more than” dollar amount to be the allowable amount. This is exaggerated in this example when the paper + electronic = hybrid fees are combined. 5. Records requested by a third party: attorney An attorney requests the entire medical record from a physician’s office for a client. The patient’s records for the first five years are in paper format and the records for the last three years are in electronic format. Calculating federal allowable charges Federal calculations do not apply to third-party requests, only to patient requests for their own records. Calculating TMB allowable charges The physician responding to a request for such information that is contained in electronic and paper format (“hybrid”), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information. A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and (2) of the TMB Rule § 165.2 (e).2 Considerations The practice refers to the TMB Rule regarding hybrid records and charges the attorney $165. They calculated the charges based on: • Scanning 200 pages onto a CD = $115.00 ($25 for first 20 pages and $.50x180 pages) • 600 pages from EHR onto the same CD = $50 ($50 for more than 500 pages) In this example the attorney requested the entire medical record and the practice calculated the fees based on TMB rules correctly.
6. Records requested by a third party: insurance company An insurance company requests the records of a patient related to an auto accident. The practice maintains their medical records in electronic format. Calculating federal allowable charges Federal calculations do not apply to third party requests, only to patient requests for their own records. Calculating TMB allowable charges The physician responding to a request for such information that is contained partially in electronic format and partially in paper format (“hybrid”), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information. A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and (2) of the TMB Rule §165.2 (e).2 Considerations The practice refers to the TMB Rule regarding electronic records and charges the insurance company $50. They calculated the charges based on 600 pages from EHR onto the same CD ($50 for more than 500 pages). In this example the insurance company requested the medical record and the practice calculated the fees based on TMB rules correctly. For more on medical record release, please visit the Risk Management FAQs on the TMLT website or contact the Risk Management department at 800-580-8658. You can also visit the Cornell Legal Information Institute online. SOURCES 1. U.S. Department of Health & Human Services. Individuals’ right under HIPAA to access their health information. Health Information Privacy. 45 CFR, Section 164.524. Available at https:// www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/ index.html#newlyreleasedfaqs. Accessed May 9, 2017. 2. Medical Records Release and Charges. Texas Administrative Code. Title 22, Part 9, Chapter 165, Section 165.2. Available at http://texreg.sos.state.tx.us/public/readtac$ext. TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ ploc=&pg=1&p_tac=&ti=22&pt=9&ch=165&rl=2 . Accessed May 11, 2017.
Cathy Bryant can be reached at
[email protected].
CONNECT WITH TMLT ON SOCIAL MEDIA @TMLT_TMIC www.facebook.com/ TexasMedicalLiabilityTrust www.linkedin.com/ company/tmlt
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Pre-sorted Standard U.S. Postage PAID Permit No. 90 Austin, Texas
TEXAS MEDICAL LIABILITY TRUST P.O. Box 160140 Austin, TX 78716-0140 800-580-8658 or 512-425-5800 www.tmlt.org
EDITORIAL COMMITTEE Robert Donohoe | President and Chief Executive Officer John Devin | Chief Operating Officer Sue Mills | Senior Vice President, Claim Operations Laura Hale Brockway, ELS | Assistant Vice President, Marketing EDITOR Wayne Wenske ASSOCIATE EDITOR Louise Walling STAFF Diane Adams Cathy Bryant Stephanie Downing Olga Maystruk Robin Robinson Lesley Viner CONTRIBUTOR Steve Taylor DESIGN Olga Maystruk
the Reporter is published by Texas Medical Liability Trust as an information and educational service to TMLT policyholders. The information and opinions in this publication should not be used or referred to as primary legal sources or construed as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the particular facts and circumstances of each individual case and no generalizations can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor its affiliates are engaged in rendering legal services. © Copyright 2017 TMLT
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