Old Problems, New Solutions

Old Problems, New Solutions CSAC Excess Insurance Authority Annual Medical Malpractice Programs Training Wednesday, April 23, 2008 9:00 a.m. - 4:30 p.m. Sacramento, CA

Welcome • Michael Fleming, ARM, Chief Executive Officer, CSAC Excess Insurance Authority

“housekeeping” • Handouts • CEU’s & Sign-in Sheets • Travel reimbursement forms • Electronic evaluation form • Questions • Breaks, lunch • Bathrooms, public telephones • Cell phone reminder

Agenda • Legal and Risk Management Update • Tort Reform: MICRA Update • Falls, Wandering, Elopements and AMA • Medication Errors • Correctional Care - Pre-Booking Medical Costs • Combining Mental Health and Substance Abuse • HIPAA Update/Confidentiality Concerns • Advance Directives for Healthcare • Hospice Care

Resources • www.csac-eia.org • California State Association of Counties Excess Insurance Authority - check out Resources (Best Practices Library) and Services (Loss Prevention) • www.rmscotati.com • Risk Management Services - use “links” button • www.leginfo.ca.gov • California statutes - “x” one Code at a time, then “search” for table of contents

www.calregs.com • California Code of Regulations (CCR) - helpful to know which Title and Section number • www.cdcr.ca.gov • California Department of Corrections and Rehabilitation - click on “Corrections Standards Authority” and then, (on left side) click on “Regulations” then find Adult and Juvenile Health Regulations and Guidelines

www4.law.cornell.edu • click on Federal Constitution, US Code (laws), or CFR (Code of Federal Regulations) • www.coce.samhsa.gov • U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (click on “COCE” - SAMHSA’s co-Occurring Center for Excellence)

www.youthlaw.org • National Center for Youth Law • www.calhealth.org • California Hospital Association (click on “publications” and then “forms and posters”) • www.californiahia.org • California Health Information Association (click on “publications”)

www.lac.org • Legal Action Center, click on “publications” to get to Confidentiality and Communication (2006 edition), A Guide to the Federal Drug and Alcohol Confidentiality Law and HIPAA

Legal Update: New Laws, Regulations, and Developments Linda Garrett, JD Risk Management Services 9:05 a.m. - 10:00 a.m.

Update: Laws, Regs, Risk Management Issues • Records retention • Confidentiality • HIV Consent • Mental Health • Errors/Hospital Acquired Conditions

Records Retention: Proposed new legislation • SB 1415 - An action to add H&S Code 123106 • a) 10 years minimum records retention • b) at time record is created, patient may elect to have record archived longer than 10 years • c) no fewer than 60 days before records are destroyed healthcare provider must notify the patient and ask if they’d like them archived!

Records Retention - Old Law - New Solution • Clinic records should be maintained, at a minimum, for 7 years past the last date patient is seen, or in the case of minors, until 1 year past the age of majority, whichever is longer • 1/1/07 - Business and Professions Code 2919 Psychologists’ records for minors must be retained until minor turns 25 years of age! Most providers keep until year that client would turn 26

Most counties now keep all minor records that include mental health services according to this rule so that they don’t have to search each record for notes that might have been written by a psychologist

Speaking of records… • Be careful who you contract with to destroy the records, and who you contract with to transcribe records - beware the overseas subcontractor! • Make sure you have a Business Associate Agreement and “hold harmless” language in the contract and that company has adequate insurance coverage and you have proof of insurance (certificate)

Confidentiality/Privilege Domestic Violence Victim-Counselor Privilege • SB 407 clarifies and strengthens the definitions of domestic violence victim-counselor privilege and extends it to communications to “domestic violence counselors” not previously included in the definitions (amends Evidence Code sections 1037.1, 1037.2, 1037.4 and 1037.5; also Penal Code 679.05)

Sharing medical info about “300” or “600” kids (dependents or wards): • AB 1687 amends Civil Code 56.10 by adding 56.103 to permit disclosures of information about children and youth that is protected under CC 56.10 to a county social worker, probation officer or other person legally authorized to have custody or care of a minor for the purpose of coordinating health care services and medical tx provided to the minor. • LPS Act (county mental health) info NOT covered by this new law : (

HIV disclosures • Written authorization normally needed to disclose HIV test results and related info • Exceptions to this rule include: • To the patient or patient representative (e.g., conservator) • To the health care provider (ok to include in chart) • To an agent or employee of the provider who provides direct patient care and tx

Exceptions (continued): • To a provider under the Uniform Anatomical Gift Act • Pursuant to an organ donation • Anonymously to a “designated officer” under the Ryan White Act when there has been a possible first responder exposure • After an occupational exposure, following strict guidelines • Under certain Penal Code sections w/court order or search warrant

HIV Consent to Testing • Law now says a physician treating a patient must obtain INFORMED (rather than using the word WRITTEN) consent • Everyone else (other than alternative/anonymous site, blood bank or plasma center) must get written consent • Old solution: the best way for a physician to demonstrate and prove informed consent, is to get it in writing!

Mental Health • 5150 Update • SB 916 allows non-designated hospitals to detain individuals who are danger to self, others or gravely disabled, up to 24 hours while they look for a 72 hour involuntary bed to transfer the patient to.

Note: this is not a “hold” -- it is merely protection from litigation for false imprisonment if an individual is prevented from leaving for up to 24 hours while a transfer is arranged - the hospital can choose to let the person leave sooner if the condition is “stabilized”

Health and Safety Code 1799.111 • 1799.111. (a) A licensed general acute care hospital, … that is not a county-designated facility pursuant to Section 5150 of the Welfare and Institutions Code, a licensed acute psychiatric hospital, … that is not a county-designated facility pursuant to Section 5150 of the Welfare and Institutions Code, licensed professional staff of those hospitals, or any physician and surgeon, providing emergency medical services in any department of those hospitals to a person at the hospital…

…shall not be civilly or criminally liable for detaining a person who is subject to detention pursuant to Section 5150 of the Welfare and Institutions Code, if allof the following conditions exist during the detention:

(1) The person cannot be safely released from the hospital because, in the opinion of the treating physician and surgeon, or a clinical psychologist with the medical staff privileges, clinical privileges, or professional responsibilities provided in Section 1316.5, the person, as a result of a mental disorder, presents a danger to himself or herself, or others, or is gravely disabled. For purposes of this paragraph, "gravely disabled" means an inability to provide for his or her basic personal needs for food, clothing, or shelter.

(2) The hospital staff, treating physician and surgeon, or appropriate licensed mental health professional, have made, and documented, repeated unsuccessful efforts to find appropriate mental health treatment for the person. • (3) The person is not detained beyond 24 hours. • (4) There is probable cause for the detention.

5) If the person is detained beyond eight hours, but less than 24 hours, all of the following additional conditions shall be met:

(A) A transfer for appropriate mental health treatment for the person has been delayed because of the need for continuous and ongoing care, observation, or treatment that the hospital is providing. • (B) In the opinion of the treating physician and surgeon, or a clinical psychologist with the medical staff privileges or professional responsibilities provided for in Section 1316.5, the person, as a result of a mental disorder, is still a danger to himself or herself, or others, or is gravely disabled, as defined in paragraph (1) of subdivision (a).

Subsection (d) specifically states that the time detained, up to 24 hours, shall be credited against the subsequent 5150 (72 hr) hold

SB 1606 - Yee (Laura’s Law) • An act to amend Laura’s Law to make implementation easier (as originally proposed) • Introduced February 22, 2008; read first time on February 25, drastically amended April 3, heard on April 15, re-referred to committee on April 16, next hearing set for Monday, April 28.

Tarasoff Warnings Psychotherapist has a duty to warn when client communicates (even through a family member) a serious threat of harm against a reasonably identifiable victim or victims Civil Code 43.92 - no liability against psychotherapist if he/she makes reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency

W&I Code 5328 Exceptions to Confidentiality: • r) When the patient, in the opinion of his or her psychotherapist, presents a serious danger of violence to a reasonably foreseeable victim or victims, then any of the information or records specified in this section may be released to that person or persons and to law enforcement agencies as the psychotherapist determines is needed for the protection of that person or persons. For purposes of this subdivision, "psychotherapist" means anyone so defined within Section 1010 of the Evidence Code.

But, W&I Code 5328 only applies to records “…created in the course of providing services under Division 4 (commencing with Section 4000), Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500), Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100), to either voluntary or involuntary recipients of services …. “

So, what about private pay, private practice therapists?

AB 1178 clarifies that private pay, private practice, psychotherapists who are covered by Civil Code 56.10 (and do not fall under the LPS Act confidentiality protections) may do Tarasoff warnings and that this would be an exception to their confidentiality rules, too!

Civil Code 56.10 - Confidentiality of Medical Information Act or CoMIA • 56.10. (a) No provider of health care, health care service plan, or contractor shall disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).

New subsection: • (c)(19) The information may be disclosed, consistent with applicable law and standards of ethical conduct, by a psychotherapist, as defined in Section 1010 of the Evidence Code, if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

Old law: Civil Code 56.10 (b)…disclosures shall be made…(9) When otherwise specifically required by law.

Adverse Event Reporting • 1998 IOM report • Leapfrog Group - 28 “never events” • July 1, 2007 - reporting of specific adverse events must be reported by hospitals to their local California Department of Health Services Licensing and Certification Office • Deficit Reduction Act

Preventable Errors/HAC’s • As of October 1, 2008 CMS will no longer pay for certain “preventable errors” and “Hospital Acquired Conditions” • Many other health insurance companies are following that lead (the Blues, CIGNA, etc.) and sending letters to hospital administrators “asking” them not to bill them, or their members, for certain adverse events

February 2008 - the AHA sent a letter to its hospital members asking them to voluntarily adopt a no-charge policy for serious adverse events (“never events”) • Crucial that medical staff charts POA (“present on admission”)

HAC’s include: • Object left in during surgery • Air embolism • Blood incompatibility • Catheter-associated urinary tract infection • Pressure ulcers (bed sores) • Vascular-catheter-associated infection • Surgical site infection (specifically mediastinitis after coronary artery bypass grafting surgery - CABG) • Hospital-acquired injury due to external causes such as falls crushing injury, burns , etc.

Joint Commission publication • Cultural Sensitivity: A Pocket Guide for Health Care Professionals www. jcrinc.com > Publications: >> search “Cultural Sensitivity” ($35 for 5 booklets)

Questions?

Tort Reform: News on the MICRA Front Anthony D. Lauria, Esq. Lauria Tokunaga Gates & Linn, LLP 10:00 a.m. - 10:30 a.m.

history • THE CRISISIn the early 1970s, a medical malpractice insurance crisis gripped California. Liability premiums soared more than 300 percent because of more frequent and severe liability claims and larger malpractice jury awards. Many physicians — particularly in high-risk specialties such as obstetrics and neurosurgery — were forced to close their doors, either unable to get insurance or unable to afford inflated rates. Denied access to affordable care, California patients suffered. In 1975, Governor Jerry Brown called a special session of the California Legislature to solve the "malpractice crisis."

Pre-MICRA Problems • California in the early 70’s saw a dramatic increase in number and size of malpractice lawsuits • As a result malpractice insurance companies had huge underwriting losses, and raised their premiums anywhere between 300% and 500%; other insurance companies just left the state • One survey showed that more than half of the doctors planned to reduce or entirely stop providing services to California residents

Acupuncturists Chiropractors Clinical laboratory technicians Dentists Dietitians Hearing aid dispensers Hygienists Licensed Midwives Marriage and Family Therapists Nurse Anesthetists Nurse Practitioners Nurses Occupational Therapists Opticians Optometrists Perfusionists Pharmacists Physical Therapists Physician Assistants Physicians Psychiatrists Psychologists Research Psychoanalysts Social Workers Speech-Language Pathologists and Audiologists Telephone Medical Advice Services Veterinarians MICRA protects patients' access to:

Old Problems, New Solutions