March 28, 2022
Carlene MacMillan, MD
If you’re starting a new practice that offers innovative treatments such as ketamine infusions and transcranial magnetic stimulation (TMS), you’ll need to ask critical questions before selecting your malpractice insurance carrier and coverage.
These critical questions are also helpful for practices that already offer interventional treatments but want to add more advanced services, or simply want to renew an existing malpractice insurance policy.
Our industry now has a number of insurance carriers that focus solely on mental health or have a specialized division dedicated to mental health and advanced treatments.
These specialized insurance carriers are usually more up-to-date regarding mental health protocols and treatments that go beyond traditional oral medications and psychotherapy.
If you plan to start or add new services to your practice, discuss this with your malpractice insurance carrier before you offer additional services to patients. Your carrier may have specific questions and concerns that need to be addressed before you can add those services to your policy.
For instance, many malpractice carriers have a specific form that needs to be submitted by practices and clinicians that plan to offer TMS or other interventional treatments, including ketamine infusion. The form usually requires detailed information regarding your processes for clinician and technician training, informed patient consent, safety procedures in the event of a medical emergency, and management of services that are used for off-label indications.
If you have multiple clinicians in your practice (or plan to), it can be complicated and expensive to keep track of malpractice policies from different insurers. To save time and costs, opt for one malpractice carrier that can cover all of your providers.
If you’re a practice owner, give your malpractice carrier a list of clinicians you employ, and notify them when new clinicians join your team. Also, medical directors typically need to provide additional documentation to malpractice insurance carriers. Supply copies of malpractice coverage for each clinician, especially if they don’t use the same malpractice carrier your practice uses. Keep an insurance spreadsheet on hand at all times, and activate reminders in your schedule that alert you to any insurances that require renewal, ideally six weeks in advance of expiry.
While it’s ultimately each clinician’s responsibility to maintain their malpractice insurance coverage, practice owners also need to be vigilant to confirm their clinicians are insured appropriately, at all times.
The mental health field now has a growing number of facilitators and coaches who do not have professional degrees, and most medical malpractice carriers won’t cover these individuals. As a result, non-degreed individuals may need to acquire their own insurance coverage, inline with the services they provide, and in collaboration with licensed clinicians.
An important note: Seek legal counsel if your practice is affiliated with or has a service arrangement with a med spa or similar business outside the scope of your psychiatry practice or medical specialty where you’re board-certified or board-eligible.
Recently, some practitioners have been denied coverage, because of their split treatment models. This occurs when a physician or nurse practitioner prescribes ketamine (IV, IM, or troches), and another therapist provides the actual ketamine-assisted therapy. Some mal practice insurance carriers do not allow a prescriber and therapist who work for the same practice to provide this type of split treatment. Also, sometimes carriers won’t cover off-label prescriptions for ketamine through a compounding pharmacy, because the patient then ingests the ketamine on their own, typically with the support of a therapist or facilitator. Compounding pharmacies do not have to uphold the same FDA standards as standard pharmacies.
Give your malpractice insurance carrier as much information as possible about your practice procedures, and provide documentation details to show exactly how you mitigate risk. The carrier will likely want to see the patient consent forms you use, and the agreements you have in place between clinicians. While providing this level of detail might seem like extra work, it’s an essential step if you want to find the best malpractice insurance carrier to protect your business and livelihood.
Another important note: If you’re unable to find a malpractice carrier to provide coverage for your business, review your medical liabilities and determine if specific procedures, operations, or agreements need to be modified or eliminated to minimize risk. This is especially pertinent as individual states start to navigate the pathways to the therapeutic use of psychedelics. Most, if not all, medical mal practice insurance carriers will not cover psychedelics until they are federally legal, which won’t work for licensed medical professionals who require mal practice coverage.
Malpractice lawsuits might be the first (or only) thing you think about when selecting insurance coverage for your practice. However, there are several other types of insurance you need to consider.
To start, you’ll want adequate insurance coverage to respond to any board complaints. Board complaints are frustrating for clinicians and expensive to defend against. Insurance carriers offer varying amounts of coverage for board complaints, so it’s a good idea to determine what your carrier offers.
In addition, you’ll need liability coverage for any data breaches, or cybersecurity attacks your practice may experience, such as the ransomware attacks seen recently in healthcare.
Carriers that offer malpractice insurance sometimes also offer ‘slip and fall’ coverage that addresses general business liability. However, some malpractice carriers will require a separate business liability policy. The general business liability policy should include specific‘ personal and advertising injury’ coverage to defend against false marketing claims, too.
Also, consider getting ‘business interruption’ insurance, which can help protect your practice in the event of a fire or other disaster. If your practice has a complex corporate structure, your directors and officers will also require insurance.
Today, many patients prefer communicating with their clinicians via text or email instead of phone calls, voicemails, or mail. And, many patients want the option to have telehealth appointments, when appropriate. At the same time, some malpractice carriers have been slower to adapt to these patient preferences. To ensure your communication with patients won’t cause any issues, use HIPAA-compliant text, email, and tele health solutions. Speak to your underwriter if necessary, and give them specific details about the compliant communication platforms you use. Proper patient consent documentation will also need to be in place.
Your malpractice insurer will also want to seethe plans and procedures you would use for an after-hours crisis or emergency. The work we do often evolves faster than malpractice insurance carriers can adapt, especially as patient expectations and treatments advance rapidly.
If you encounter underwriting roadblocks that conflict with the way your practice operates, speak directly with your carrier, and provide additional details and context to demonstrate how you mitigate risk. The carrier will often give constructive feedback that can help you tighten your practice policies and procedures, so everyone can be comfort able with your care delivery.
Choosing insurance coverage involves more than ticking the boxes on an administrative checklist. Ideally, your malpractice insurance carrier will become a collaborative partner and resource as you build your practice. Don’t be afraid to reach out to them with questions or concerns. They can be a resource in the event of a lawsuit or complaint and provide considerable guidance.
More information on malpractice coverage for mental health:
Dr. Carlene MacMillan is Medical Director for Product and Growth at Osmind. She is the founder of Brooklyn Minds Psychiatry, a multidisciplinary team-based, multi-site practice in New York City. Her practice was one of the first to offer deep TMS for OCD and esketamine for severe depression and suicidal thinking.
Dr. MacMillan is an expert in mental health communities, with a large following on platforms including Clubhouse (@psychiatrist), where she champions awareness of evidence-based and innovative approaches in psychiatry. She is a member of the Ketamine Taskforce for Access to Safe Care and Insurance Coverage, and the Clinical TMS Society Insurance Committee. She is the Co-Chair of the American Academy of Child and Adolescent Psychiatry Consumer Issues Committee.
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