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These 5 Actions Minimize Professional Liability Risk for Behavioral Health Workers in the Fight Against School Violence

Behavioral specialists can’t predict or prevent every incident. Here are five critical risk management steps psychiatrists, psychologists, counselors and social workers should take now to mitigate liability exposure.
By: | November 1, 2018 • 6 min read

In the first half of 2018 alone, school shootings averaged about one per week in the U.S. According to statistics compiled by the CDC in 2015, nearly 8 percent of students had been in a physical fight on school property within the previous year, and 21 percent reported being bullied. Six percent said they skipped at least one school day because they did not feel safe.

Schools are increasingly battling violence, and when injured parties seek to hold someone accountable, behavioral health specialists often find themselves on the front lines.

“If a behavioral health provider was treating a youth who commits an act of violence, any affected party could file a lawsuit claiming they did not take the proper steps to spot and mitigate the risk,” said Kristen Lambert, Esq., MSW, LICSW, FASHRM, Vice President Risk Management for Allied World.

“In addition to litigation, providers like psychiatrists, psychologists, social workers and counselors could face disciplinary action from their respective boards of registration, including license restriction or revocation.”

While behavioral health providers do play an important role in identifying and mitigating the potential for violence, they can’t prevent every incident. In order to provide the best care or guidance while also protecting themselves from liability, behavioral health specialists should follow these five steps:

1. Obtain informed consent for adolescent clients from the right authorities.

Kristen Lambert, Esq., MSW, LICSW, FASHRM, Vice President Risk Management for Allied World

If a client or patient makes a statement implying that he or she intends to commit violence, the behavioral health provider should know who they can share that information with if the client or patient is a child. Before they share such information, it is important to obtain informed consent from the person who has the legal authority for the child.

Absent informed consent or in an emergency situation, the provider may be limited in who he/she can communicate with regarding the threat. This may inhibit any effort to prevent a violent act from taking place and increases liability exposure for the behavioral provider.

The first step is identifying who has legal authority to provide consent.

“There may be a variety of folks involved in the child’s life. There are legal guardians, teachers, school counselors, a primary care physician, maybe a social worker,” Lambert said. “The behavioral health provider needs to know when it’s appropriate to have a dialogue with them, and that can only happen when informed consent is obtained at the outset.”

2. “If it wasn’t documented, it wasn’t done.”

Behavioral health providers should document their treatment of a patient.

“If something happens, the people affected by violence are going to look into that adolescent’s medical record. They’re going to see if the behavioral health specialist actually asked that child if he or she was a threat to themselves or others,” Lambert said.

“If that interaction was not documented, it may be more difficult to establish that the specialist adequately assessed the risk.”

Documentation can be as simple as a short narrative note in a medical record or a comprehensive assessment checklist. The type of record kept depends on the setting and scope of care provided. A psychiatrist working for a hospital system may use an electronic health record, for instance, while an outpatient social worker may use more informal means.

What’s most important, Lambert said, is “making sure they ask the question, ‘Are you a danger to yourself or others?’ And recording quotes directly from the adolescent rather than a subjective interpretation of their response.”

3. Determine your duty to warn about potential violence.

Each state has specific regulations or case law outlining when health care providers’ duty to warn about potential violent behavior exceeds their commitment to patient privacy. Some states absolutely mandate that providers warn law enforcement if a patient indicates they will commit a violent crime, while others say they may provide warning, but are not required to.

“HIPAA allows providers to advise families, law enforcement or others whom they believe can lessen the threat,” Lambert said. “That’s federal law, but providers need to know what’s required by their state and be aware when state laws change.”

State legislation around duty to warn tends to follow laws regarding gun access and ownership. New Jersey, for example, recently strengthened its duty to warn standard as part of a new law limiting gun access to any person posing a threat to themselves or others.

4. Consult a legal professional about making predictive statements.

Schools may occasionally ask mental or behavioral health practitioners if a student presents a future risk of harm. If the student has been expelled, for example, the school may want a letter from the provider stating whether it is safe for them to return to school. Court systems may also ask for letters of support regarding youth who are in state custody.

“That puts the provider in a difficult situation,” Lambert said. “There may be indicators that the student is dangerous, or that they’re okay, but who knows what will happen tomorrow? It’s important that the provider first obtains advice before putting together a letter and when doing so, a letter should only comment on the student’s current presentation, not what he or she may or may not do in the future.”

Consulting a lawyer can help determine how much risk a practitioner assumes by providing predictive information, and how a letter outlining the threat of future harm should be worded.

5. Develop an incident response plan.

If the worst happens, law enforcement officers and distraught parents will be knocking at the behavioral health provider’s door, demanding answers.

“A sheriff or constable may ask for access to the youth’s medical records. Reporters may reach out. Depending on the severity of the act, there may be a full investigation. So it’s important for the provider to know what information they can disclose and to whom,” Lambert said.

Providers should contact an attorney and their insurance company to avoid exposing themselves to unnecessary professional liability risk.

“We might advise them not to talk to the media or to other providers, or to share any information where there is a lack of privilege. Any conversation they have with someone other than their attorney could be discoverable evidence used in the investigation or in a claim against the provider,” Lambert said. “Their instinct is to help, but it is important that they do not expose themselves to increased risk.”

Access to Expert Advice Mitigates Liability Risk

Understanding their professional liability exposure can help behavioral health professionals do everything they can to prevent violence by at-risk youths, while also protecting themselves from litigation down the road. Because of the many legal and ethical nuances of treating youth at risk for violence, turning to an experienced consultant can help make critical decisions easier.

Allied World, through its strategic partnership with American Professional Agency, Inc., is endorsed by the American Psychiatric Association, sponsored by the American Academy of Child and Adolescent Psychiatry and is the sole preferred provider for the American Psychological Association where they provide expertise in risk management for mental and behavioral health providers. Lambert herself began her career as a clinical social worker working in both hospitals and outpatient clinics before obtaining a law degree, practicing as a lawyer and a risk manager.

“We provide educational content for the members of the professional organizations, in addition to our insureds,” Lambert said.

“We also provide both proactive advice and incident reporting hotlines to our insured behavioral health providers. If they encounter a situation that they’re not sure how to respond to, they can call any time and get risk management guidance. Our goal is to provide the services and coverages necessary to allow behavioral health providers to focus on practicing and spend less time worrying about their exposures.”

To learn more, visit https://www.alliedworldinsurance.com/risk-control-usa-healthcare-liability

This information is provided as a general overview for agents and brokers. Coverage will be underwritten by an insurance subsidiary of Allied World Assurance Company Holdings, GmbH, a Fairfax company (“Allied World”). Such subsidiaries currently carry an A.M. Best rating of “A” (Excellent), a Moody’s rating of “A3” (Good) and a Standard & Poor’s rating of “A-” (Strong), as applicable. Coverage is offered only through licensed agents and brokers. Actual coverage may vary and is subject to policy language as issued. Coverage may not be available in all jurisdictions. FrameWRXSM services are provided by third-party vendors via a platform maintained in Farmington, CT by Allied World Insurance Company, a member company of Allied World. © 2018 Allied World Assurance Company Holdings, GmbH. All rights reserved.

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Allied World. The editorial staff of Risk & Insurance had no role in its preparation.




Allied World is a global provider of innovative property, casualty and specialty insurance and reinsurance solutions.

More from Risk & Insurance

More from Risk & Insurance

Insurtech

Kiss Your Annual Renewal Goodbye; On-Demand Insurance Challenges the Traditional Policy

Gig workers' unique insurance needs drive delivery of on-demand coverage.
By: | September 14, 2018 • 6 min read

The gig economy is growing. Nearly six million Americans, or 3.8 percent of the U.S. workforce, now have “contingent” work arrangements, with a further 10.6 million in categories such as independent contractors, on-call workers or temporary help agency staff and for-contract firms, often with well-known names such as Uber, Lyft and Airbnb.

Scott Walchek, founding chairman and CEO, Trōv

The number of Americans owning a drone is also increasing — one recent survey suggested as much as one in 12 of the population — sparking vigorous debate on how regulation should apply to where and when the devices operate.

Add to this other 21st century societal changes, such as consumers’ appetite for other electronic gadgets and the advent of autonomous vehicles. It’s clear that the cover offered by the annually renewable traditional insurance policy is often not fit for purpose. Helped by the sophistication of insurance technology, the response has been an expanding range of ‘on-demand’ covers.

The term ‘on-demand’ is open to various interpretations. For Scott Walchek, founding chairman and CEO of pioneering on-demand insurance platform Trōv, it’s about “giving people agency over the items they own and enabling them to turn on insurance cover whenever they want for whatever they want — often for just a single item.”

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“On-demand represents a whole new behavior and attitude towards insurance, which for years has very much been a case of ‘get it and forget it,’ ” said Walchek.

Trōv’s mobile app enables users to insure just a single item, such as a laptop, whenever they wish and to also select the period of cover required. When ready to buy insurance, they then snap a picture of the sales receipt or product code of the item they want covered.

Welcoming Trōv: A New On-Demand Arrival

While Walchek, who set up Trōv in 2012, stressed it’s a technology company and not an insurance company, it has attracted industry giants such as AXA and Munich Re as partners. Trōv began the U.S. roll-out of its on-demand personal property products this summer by launching in Arizona, having already established itself in Australia and the United Kingdom.

“Australia and the UK were great testing grounds, thanks to their single regulatory authorities,” said Walchek. “Trōv is already approved in 45 states, and we expect to complete the process in all by November.

“On-demand products have a particular appeal to millennials who love the idea of having control via their smart devices and have embraced the concept of an unbundling of experiences: 75 percent of our users are in the 18 to 35 age group.” – Scott Walchek, founding chairman and CEO, Trōv

“On-demand products have a particular appeal to millennials who love the idea of having control via their smart devices and have embraced the concept of an unbundling of experiences: 75 percent of our users are in the 18 to 35 age group,” he added.

“But a mass of tectonic societal shifts is also impacting older generations — on-demand cover fits the new ways in which they work, particularly the ‘untethered’ who aren’t always in the same workplace or using the same device. So we see on-demand going into societal lifestyle changes.”

Wooing Baby Boomers

In addition to its backing for Trōv, across the Atlantic, AXA has partnered with Insurtech start-up By Miles, launching a pay-as-you-go car insurance policy in the UK. The product is promoted as low-cost car insurance for drivers who travel no more than 140 miles per week, or 7,000 miles annually.

“Due to the growing need for these products, companies such as Marmalade — cover for learner drivers — and Cuvva — cover for part-time drivers — have also increased in popularity, and we expect to see more enter the market in the near future,” said AXA UK’s head of telematics, Katy Simpson.

Simpson confirmed that the new products’ initial appeal is to younger motorists, who are more regular users of new technology, while older drivers are warier about sharing too much personal information. However, she expects this to change as on-demand products become more prevalent.

“Looking at mileage-based insurance, such as By Miles specifically, it’s actually older generations who are most likely to save money, as the use of their vehicles tends to decline. Our job is therefore to not only create more customer-centric products but also highlight their benefits to everyone.”

Another Insurtech ready to partner with long-established names is New York-based Slice Labs, which in the UK is working with Legal & General to enter the homeshare insurance market, recently announcing that XL Catlin will use its insurance cloud services platform to create the world’s first on-demand cyber insurance solution.

“For our cyber product, we were looking for a partner on the fintech side, which dovetailed perfectly with what Slice was trying to do,” said John Coletti, head of XL Catlin’s cyber insurance team.

“The premise of selling cyber insurance to small businesses needs a platform such as that provided by Slice — we can get to customers in a discrete, seamless manner, and the partnership offers potential to open up other products.”

Slice Labs’ CEO Tim Attia added: “You can roll up on-demand cover in many different areas, ranging from contract workers to vacation rentals.

“The next leap forward will be provided by the new economy, which will create a range of new risks for on-demand insurance to respond to. McKinsey forecasts that by 2025, ecosystems will account for 30 percent of global premium revenue.

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“When you’re a start-up, you can innovate and question long-held assumptions, but you don’t have the scale that an insurer can provide,” said Attia. “Our platform works well in getting new products out to the market and is scalable.”

Slice Labs is now reviewing the emerging markets, which aren’t hampered by “old, outdated infrastructures,” and plans to test the water via a hackathon in southeast Asia.

Collaboration Vs Competition

Insurtech-insurer collaborations suggest that the industry noted the banking sector’s experience, which names the tech disruptors before deciding partnerships, made greater sense commercially.

“It’s an interesting correlation,” said Slice’s managing director for marketing, Emily Kosick.

“I believe the trend worth calling out is that the window for insurers to innovate is much shorter, thanks to the banking sector’s efforts to offer omni-channel banking, incorporating mobile devices and, more recently, intelligent assistants like Alexa for personal banking.

“Banks have bought into the value of these technology partnerships but had the benefit of consumer expectations changing slowly with them. This compares to insurers who are in an ever-increasing on-demand world where the risk is high for laggards to be left behind.”

As with fintechs in banking, Insurtechs initially focused on the retail segment, with 75 percent of business in personal lines and the remainder in the commercial segment.

“Banks have bought into the value of these technology partnerships but had the benefit of consumer expectations changing slowly with them. This compares to insurers who are in an ever-increasing on-demand world where the risk is high for laggards to be left behind.” — Emily Kosick, managing director, marketing, Slice

Those proportions may be set to change, with innovations such as digital commercial insurance brokerage Embroker’s recent launch of the first digital D&O liability insurance policy, designed for venture capital-backed tech start-ups and reinsured by Munich Re.

Embroker said coverage that formerly took weeks to obtain is now available instantly.

“We focus on three main issues in developing new digital business — what is the customer’s pain point, what is the expense ratio and does it lend itself to algorithmic underwriting?” said CEO Matt Miller. “Workers’ compensation is another obvious class of insurance that can benefit from this approach.”

Jason Griswold, co-founder and chief operating officer of Insurtech REIN, highlighted further opportunities: “I’d add a third category to personal and business lines and that’s business-to-business-to-consumer. It’s there we see the biggest opportunities for partnering with major ecosystems generating large numbers of insureds and also big volumes of data.”

For now, insurers are accommodating Insurtech disruption. Will that change?

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“Insurtechs have focused on products that regulators can understand easily and for which there is clear existing legislation, with consumer protection and insurer solvency the two issues of paramount importance,” noted Shawn Hanson, litigation partner at law firm Akin Gump.

“In time, we could see the disruptors partner with reinsurers rather than primary carriers. Another possibility is the likes of Amazon, Alphabet, Facebook and Apple, with their massive balance sheets, deciding to link up with a reinsurer,” he said.

“You can imagine one of them finding a good Insurtech and buying it, much as Amazon’s purchase of Whole Foods gave it entry into the retail sector.” &

Graham Buck is a UK-based writer and has contributed to Risk & Insurance® since 1998. He can be reached at riskletters.com.