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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.




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More from Risk & Insurance

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4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]