Kevin Malone Quoted in “Minimize Business Risk When Patients Leave Against Medical Advice”

Behavioral Healthcare Executive

Kevin Malone, Associate of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Behavioral Healthcare Executive, in “Minimize Business Risk When Patients Leave Against Medical Advice,” by Jill Sederstrom.

Following is an excerpt:

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. …

“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. …

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.”