Beware obligations in patient-provider relationships

Key takeaways:

• Relationships begin once practitioners agree to provide care to patients who request it.
• Relationships are voluntary, but laws govern treatment.
• Technology has expanded how relationships may form.

PARK CITY, Utah — By consenting to provide care to patients who are seeking it, practitioners establish relationships with those patients. But these transactions are not as simple as they seem, according to a presentation here.

“Once you create that relationship, there’s a bunch of strings attached,” Kim Stanger, JD, a partner with Holland & Hart LLP, said during his presentation at the Association of PAs in Allergy, Asthma and Immunology Annual Allergy, Asthma & Immunology CME Conference.

Physician discretion

Despite the Hippocratic oath, Stanger said, these relationships are voluntary.

“You are not a bus,” he said. “You’re not required to take all patients.”

Stanger said that the best way to avoid problem patients is to not accept them in the first place.

“It may be a situation where you want to check on your patients before you decide to take them,” he said, adding that physicians can check prior providers and medical history. “Because once they’re there, once they’re yours, then you’ve got those duties.”

But there are exceptions, Stanger clarified. The Emergency Medical Treatment and Labor Act (EMTALA) requires EDs to provide immediate care when necessary. Also, some practices may have contractual or grant requirements or charity care obligations. Physicians must follow all antidiscrimination laws as well.

“This is kind of a hot topic,” Stanger said. “A lot of my providers don’t understand these rules that are out there.”

Among other laws, Section 1557 of the Affordable Care Act imposed rigorous civil rights requirements on health care providers, Stanger said, adding that HHS is proposing additional protections for people with disabilities and for people with limited proficiency in English.

“You’ve got an obligation to provide reasonable accommodations to ensure that they have effective communication, so they’re not denied access to the services that you provide,” Stanger said.

For example, Stanger continued, practices are not obligated to provide sign language interpreters, but effective and appropriate auxiliary aids should be available to ensure effective communication. However, practices cannot charge patients for these aids or require patients to bring their own aids to the appointment.

“If you’re out there engaging in this business, then this is just the cost of you doing business,” Stanger said.

When it comes to patients with limited English proficiency, practices need to take reasonable steps such as preparing translated documents and even having interpreters available — although what is reasonable for practices may not be what is reasonable for the Office of Civil Rights, Stanger cautioned.

“Does that mean that you have to have somebody on staff who speaks Swahili? Probably not,” he said, adding that practices serving areas with, for instance, large Hispanic populations should have effective means for communication available.

Stanger also advised caution when patients who do not speak English bring along a child or another member of the family who can speak English to provide interpretation, particularly when it comes to informed consent.

“You can’t rely on that person, especially if it’s a minor,” he said.

Unintentional relationships

Stanger emphasized that physicians cannot refuse a patient for improper reasons. But sometimes, he said, physicians may create relationships without intending to or realizing that they had.

“There may be situations where you didn’t mean to take this patient on as a patient, but the patient thinks that you did,” he said. “In that case, it may be a sticky situation about whether or not you’ve got those obligations.”

Phone calls, emails and even social media conversations with people who have not visited the office yet may not seem like a relationship to physicians, Stanger said, but these people may believe that they are now in a provider-patient relationship.

“Do you ever answer questions online or something like that? That could create a patient relationship. Are you just doing a phone consult from another health care provider?” he asked. “If the patient thinks that that relationship is out there, then that is a potential situation for you.”

Additional gray areas include professional courtesies or favors, emergency care or call coverage, health fairs or other volunteer situations, testing or vaccination programs, and even independent medical examinations or employer or sports physicals.

Each case depends on its own facts, Stanger advised.

“What do you want to do to avoid those situations? Effective communication,” he said, adding that physicians need to be careful in what they say and do and ensure that patients know that they are not creating an effective relationship.

Stanger suggested using phrases such as “I’m here to see you for this, but I’m not here to see you for that,” and “I’m here as part of this free screening exam process, but this doesn’t create any kind of ongoing patient relationship.”

These communications should be documented as well via policies, forms and consents, Stanger said, in addition to discharge and referral instructions, letters and emails.

“The key there is making sure that the patient understands the limits of what you are and are not doing,” he said.

Programs such as free allergy testing should carry disclaimers indicating that these screenings do not entail any other obligations, Stanger said.

Stanger suggested a disclaimer could read:

“This service does not establish a practitioner-patient relationship, nor does [the provider] undertake to provide additional or follow-up care for the patient or advise patient of the results of any exam, tests or care. The patient is responsible for contacting their regular health care provider to obtain proper follow-up care or to address any questions or conditions that may arise.”

Telemedicine may complicate matters too, Stanger said.

“Telehealth applies wherever the patient is, not just where you are,” he said. “If you’re here in Utah, and you want to provide telehealth over in Idaho, you’ve got to comply with Idaho’s laws, not just the laws here in Utah.”

State laws, which may vary, also have specific rules about establishing patient-provider relationships, Stanger said.

“You can only provide telehealth if you first established that provider-patient relationship,” he said, adding that the relationship usually must be established by audio or visual interaction between the patient and provider, with limited exceptions.

Finally, telemedicine also requires physicians to provide the in-person standard of care.

“If you’re going to do telehealth, make sure you’re aware of the rules,” he said.