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Minimize business risk when patients leave against medical advice

June 26, 2018

Patients who leave against medical advice are putting their own health at risk. Additional risks for the treatment center could include liability for patient self-harm, overdose, suicide or injury from a lack of basic safety. Such risk can be minimized, however, when provider organizations adopt well-crafted policies and procedures that go beyond simple intake forms. The process must begin the moment a patient walks through the door to better protect the patient and the business.

Leaving against medical advice (AMA), or against treatment advice (ATA), is a universal struggle for most treatment centers.

A Treatment Episode Data Set (TEDS) report released by the Substance Abuse and Mental Health Services Administration (SAMHSA), examined discharge data from addiction treatment facilities in 2014—the most recent data available. SAMHSA found that 25.8% of the 1.4 million discharges examined included people who had dropped out of treatment. Treatment completion rate overall was 43%.

Kevin J. Malone, an attorney at Epstein, Becker and Green, says leaving against medical advice is a more significant concern for mental health and addiction treatment providers than any other provider setting, including hospitals, in large part because of the vulnerable populations they serve.

“There’s significant business risk to the treatment provider because they are losing the revenue from this patient, and they are faced with a potential liability associated with harm that may happen to that person,” Malone says. “And at this point in the trajectory of our country and with the issues that the opioid crisis has created, prosecutors are looking for anybody to go after.”

According to Malone, prosecutors have become aggressive in trying to place blame for overdose deaths. Even if treatment centers did everything they could to help a particular patient, Malone says an investigation alone can carry with it a significant cost to the business.

For these reasons, it’s important that treatment centers are proactive and establish policies and procedures that limit their own liability.

Craft intake forms

Risk mitigation should begin as soon as a patient walks in the door. Most treatment centers have forms for patients to fill out when they leave against medical advice, but experts say having carefully crafted intake forms that consider that possibility of AMA are just as important. Patients in the process of leaving might not be amenable to signing documents as they depart.

“Facilities may not have invested the time in making sure that their original informed consent intake forms protect them legally,” Malone says. “It varies by state what you can do on the intake side and on the AMA side.”

If states allow it, he says treatment centers should include binding arbitration provisions as part of the intake paperwork. Such forms should also include clear consent forms, particularly for 42 CFR Part 2 regulations, in order to give treatment facilities the authority to reach out to other providers or family members in the event a patient leaves AMA.

Establish competency protocol

In addition, Malone says treatment centers also need to have an established policy to address the patient’s own ability to make a rational decision on continuing treatment. A professional assessment is potentially required by law.

“You don’t want to allow someone to leave against medical advice if they don’t have the capacity to make that decision,” he says. “If you don’t have a policy in place for how and when and who is qualified under state law to make that assessment, you are in a really bad situation.”

Smaller providers who don’t have a psychiatrist on staff, for example, need to determine how to carry out an assessment if necessary.

Identify patients at high risk for AMA

Providers also need to have policies during the early stages of treatment that help clinicians identify which patients might be at the greatest risk of leaving AMA. For example, young adult patients might resist treatment when parents insist on it. Individuals opting for treatment through drug courts might have less motivation to be well in recovery than to simply avoid jail time.

Greg Hobelmann, MD, MPH, chief medical officer at Ashley Addiction Treatment in Maryland, says there are certain warning signs that may make a person more likely to leave AMA, such as someone who voices ambivalence about treatment, having a prior history of AMA or a having history of not following clinical advice.

JourneyPure, an addiction treatment center in Nashville, has incorporated an AMA risk assessment tool into part of its pre-admission screening process. Professionals ask patients five simple questions designed to assess the likelihood a patient will leave treatment against advice. Patients are then given a score from 0 to 5 based on their risk, and staff members determine who might need extra intervention during treatment.

“We’ve found so far that the tool is fairly good in terms of its ability to predict one’s predisposition to leaving against our advice,” says Brian Wind, PhD, chief of clinical operations for JourneyPure.

Create a culture that prevents AMA

Patients are motivated to leave treatment for any of a long list of reasons, including cravings, intense emotions, fear of losing a job or lifestyle, or pressure from others to return home. Experts say treatment facilities need to create a warm and welcoming culture that promotes safety and alleviates fear.

JourneyPure uses a specific blocking protocol to prevent AMA departures and trains its staff to report any language or action they observe in a patient that could signal an AMA departure might be imminent. All staff are trained to use motivational interviewing techniques and avoid power struggles with the patients they serve.

“We’ve had some great people who are experts in AMA departure prevention that come around regularly to educate our staff,” Wind says. “We frequently do staff collaboration meetings and interdisciplinary meetings that center around AMA departures.”

The result is what Wind considers a low AMA departure rate at the JourneyPure facilities.

Alert family or health professionals

Even with signed forms and patient acknowledgement of AMA, Malone cautions that providers aren’t necessarily absolved from liability when the patient walks away.

“You need to be doing everything you possibly can to prevent them from leaving, and then to prevent harm after the person leaves, whether they sign the paperwork or not,” he says.

One way to try to reduce the potential harm to a patient after an AMA departure is alerting family members or other healthcare professionals who have referred the patient or treated them in the past.

Many providers mistakenly believe that HIPAA prevents them from notifying family about a dire situation. HIPAA does allow communication when a patient is in danger. Clinicians can disclose information to family members “to the extent that the provider perceives a serious and imminent threat to the health or safety of the patient or others, and the family members are in position to lessen the threat,” according to federal guidance.

Hobelmann says at Ashley Addiction Treatment, staff will inform all patients at intake that while they can later choose to remove consent to some of their contacts, patients cannot renege on their consent for an emergency contact, even in the case of an AMA departure.

“We always contact the emergency contact to let them know what’s going on,” he says.

Maintain contact after departure

Treatment providers should also give patients departing AMA a reasonable chance at success by supplying them with other community resources where they can find help or by giving them a way to reconnect with the facility.

“You should have a follow-up policy as well, especially if you have an outpatient program,” Malone says. “You don’t just ignore the person.”

JourneyPure has developed a smartphone app that acts as a daily guide for recovery and includes a built-in communication system. The app, which Wind describes as HIPPA-compliant secure messaging with recovery coaches, is installed on the patient’s phone before they leave the facility.

The recovery coaches then remain in contact with the patient even after they leave.

“It feels like a safe private space by which to communicate with someone who loves them and cares about them in early recovery,” Wind says.

More than half of the people who leave JourneyPure AMA later return to the facility to re-enter treatment, Wind says.

“We still maintain a sense of connectivity with them, and even if they leave against our advice, we make it really clear in letting them know that there is no judgment. We’re still here for you,” he says.

Jill Sederstrom is a freelance writer based in Kansas.

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