Dialogues In Healthcare STRATEGIES FOR EFFECTIVE COMMUNICATION

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1 Dialogues In Healthcare STRATEGIES FOR EFFECTIVE COMMUNICATION Volume 8, Number 2 February 2014 A Publication of The Rozovsky Group, Inc./RMS Fay A. Rozovsky, JD, MPH Editor The Questionable Use of General Admission Consent Forms Just sign here. The patient arrives at 6:30 am for a surgical procedure, or a colonoscopy, or a biopsy. Having been npo for hours, the patient is thirsty, anxious and wary of what comes next. The patient reads, but does not comprehend all the fine print on the form. What is it that the patient is signing? Is it a legal document? Is it a solely a formality, giving the facility the ability to submit a claim for services rendered, or to share other payment information with a payer? Is it a general consent form that is designed to cover the landscape, from payment and reimbursement to granting permission for routine care? And what is included in routine care? Is the form of any value at all? If so, who does it protect? The patient? The facility? The care provider? The insurer? The general admission consent is a catch-all, a repository, and as seen in a case example, it may not be of any value at all. The Hypothetical Case of Wren List. 39 year-old Wren List had first gone to a local walk-in clinic for assistance. Four days earlier, Ms. List had felt as if she was coming down with a cold. She bought an over-the-counter cold medication. By day three, Ms. Wren had a temperature of F. She felt chilly and ached all over. Must be the flu,

2 2 her neighbor said. When she woke up at 7 AM with her sides sore from coughing and with difficulty breathing, Ms. Wren decided to go to the local walk-in clinic for assistance. She was seen by Jill Ketlaw, a physician assistant. I think your neighbor made a good diagnosis, Ms. Ketlaw said. She continued, This illness is likely viral, and other than rest and plenty of fluids, there is not much more that you can do. Now if your symptoms get worse, I would suggest you come back for a follow-up visit or go and see your primary care provider. At 7 PM, Ms. List was experiencing difficulty breathing. The over-the-counter inhaler she had in bathroom medicine cabinet had expired three years earlier. She thought to herself, This is ridiculous. I need help. Ms. List took a taxi to a nearby hospital. Ms. List was triaged by a nurse in the hospital emergency department. We will get you seen as soon as possible. We are stacked tonight with a number of gunshot wounds and stabbing victims. I will ask the ED reception clerk to see you now so we can get things started, said the nurse. John Nelson, ED reception clerk, asked Mr. List for demographic information. He typed the data into his computer tablet and then asked Ms. List to sign the document using her finger. Just like in a supermarket, he said. Ms. List was feeling awful and did not bother to respond to the joke. Instead, she said, What am I signing? Mr. Nelson replied, Oh, it is just a formality. Giving the hospital permission to bill your insurance company. That sort of thing. Ms. List had difficulty reading the 9-point font on the computer screen. She had decided not to wear her contact lenses and she had forgotten to take her reading glasses with her to the hospital. Ms. List signed the electronic form. About 50 minutes later, Ms. List was seen by an emergency physician. She ordered a number of blood tests and x-rays. When the x-ray results were available, the emergency physician spoke with Ms. List and said You have pneumonia and that is for starters. The lining around your lungs is inflamed and that is probably why you are having so much pain on the right side when you breathe. Your airway is really inflamed, too. How long have you been smoking? I stopped smoking last year. I smoked cigarettes for 24 years, said Ms. List. I think you need to see a pulmonary specialist. I am concerned that you could have some obstructive disease. Some of the blood tests will not be back for

3 3 twenty-four hours. My preference is to admit you to the hospital and have one of the hospitalists get your condition under control. The hospitalist can get you set up with a pulmonologist, said the emergency physician. Reluctantly, Ms. List agreed to being hospitalized. After appropriate inpatient care, Ms. Wren was discharged with instructions to follow up with her primary care provider and the pulmonologist. Two days later, Ms. List saw her primary care provider. Well you had quite the illness. Hmm. The pulmonologist report is concerning. Good thing you stopped smoking last year. The office will set you up with Dr. Marchestan. He will be following you for your HIV condition. He is a great infectious disease physician. I will see you in two weeks, said the primary care provider. Wait a minute, doctor, said Ms. List. She continued, What HIV condition? What are you saying? No one told me about HIV. How do you know it is correct? The primary care provider replied, When you were in the hospital you had a number of blood tests, including a test for HIV. It came back positive. No one asked me for permission for that test, said Ms. List. I suggest that you talk with the patient relations director at the hospital, said the primary care provider. It is part of the paperwork you signed when you were seen in the emergency department. You signed a document called a general admission form. It gave the hospital and its staff authority to complete medically necessary diagnostic tests and treatment, said the director of patient relations. But there is nothing routine about HIV testing, said Ms. List. Ms. List consulted an attorney. Observations on the Hypothetical Case. The Wren List case reflects an inherent problem with general admission case forms. What one person thinks are authorized tests and treatment covered in a general admission consent form is far more than another person reviewing the form. In other words what are routine tests and treatments are in the eyes of the beholder.

4 4 There is some variation in general admission consent forms. Some forms actually list certain tests and treatment as being routine and add a catch-all phrase such as and such other medically-necessary, routine tests considered appropriate in a patient s treatment. Once again, what one person anticipates in the catch all component is not the same as the perception of another individual. At its core, the informed consent transaction is a communications process. The care provider and patient engage in an exchange of information that is then memorialized in the consent form. The consent form is not the consent process. When a receptionist or a health care professional says, This is a formality. Just sign here, the statement is only partly correct. The consent form is a formal, legal document. The form is used for continuity of care, billing, coding and legal defense or litigation. However, signing the document is anything but perfunctory. In the Wren List case, there is an additional concern. Even if one were to argue that a blood test is part of routine care, this may not be true in certain situations. Testing for the presence of HIV is such an instance. In 2006, the CDC published a document entitled, Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Health Care Settings. 1 Two recommendations involved the issue of consent to HIV Testing: HIV screening is recommended for patients in all health-care settings after the patient is notified that testing will be performed unless the patient declines (opt-out screening). Separate written consent for HIV testing should not be required; general consent for medical care should be considered sufficient to encompass consent for HIV testing. 2 [Emphasis added] No doubt, there was a laudable goal behind the shift to general consents for HIV testing. Attempting to remove the stigma of HIV and treat it like other infectious diseases, the thinking was that with more testing, more cases could be detected and treated early on in the disease process and, at the same time, more could be done to emphasize HIV prevention. Most states have modified their HIV testing laws to go along with the CDC recommendations. 3 For example, in Nebraska, 4 the patient must give written informed consent for HIV testing. The written document must include an explanation of human immunodeficiency virus infection and the meaning of both positive and negative test results. 5 Further, the Nebraska law provides: If a person signs a general consent form for the performance of medical tests or procedures which informs the person that a test for the presence

5 5 of the human immunodeficiency virus infection may be performed and that the person may refuse to have such test performed, the signing of an additional consent for the specific purpose of consenting to a test related to human immunodeficiency virus is not required during the time in which the general consent form is in effect. 6 In, Wisconsin 7 the legislation utilizes a so-called opt out provision. The Wisconsin law provision requires that the care provider to offer to furnish to the patient or his representative a brief oral or written explanation of HIV infection and HIV test results. 8 The patient or surrogate must also be informed of the right to decline or out opt of testing. 9 As noted in Nebraska one mechanism is to incorporate HIV testing as part of the general consent. 10 Others have authorized verbal informed consent for HIV testing with a requirement for a written informed consent to release the results to anyone other than the patient. Massachusetts is an example of this approach. 11 The approach found throughout the country includes exceptions. 12 For those involved in HIV testing it is important to be familiar with these exceptions and the process to be followed when applicable. There are some challenges with the HIV testing laws. First, the stigma persists for those who undergo an HIV test and then receive a positive result. It is a lifechanging diagnosis. Today, the myriad of antiretroviral drugs available to treat HIV patients has transformed what was a short-term life into a period of longevity, albeit one that often includes chronic ailments and medication sideeffects. Second, counseling is important. 13 Indeed, the CDC online compendium of state-by-state laws provides legislative information on this topic. 14 Patients or surrogates should understand what is involved in the testing process and the meaning of the results. This step is as important for a person doing a self-test at home as it is an individual like Ms. List in a hospital setting. The emotional, social, relationship, and financial impacts of a positive test result should not be minimized. Third, there is a practical slippery slope involved in general consents as seen in the case of Ms. List. Who is counseling the patient about the HIV test? The opportunity to opt out? The potential consequences of a positive test result? The possible consequences of declining the test? Is it a clinically-trained individual or a receptionist who gives the patient a form and says, Just sign here. It is a mere formality for you to receive treatment? A trained healthcare professional can explain what is entailed in HIV testing and the opt-out option. The qualified individual can address questions posed by the patient or surrogate. But the slippery slope may result in the matter-of-routine approach

6 6 in which the task devolves to a non-clinician or a person not skilled in HIV counseling. The result could have profound consequences for a patient like Ms. List who was not informed, who did not have a reasonable expectation of routine care, and who is the recipient of a positive test result. Strategies for Controlling General Admission Consent Forms. Is there a role for the general admission consent form? There may be in terms of obtaining a release or authorization to submit claims to payers for services provided to the patient. The same document can be used to obtain the patient s consent or agreement to pay co-pays and other expenses not covered by his or her health insurance program. It is quite another matter to use the general admission consent to secure permission for routine and medically necessary tests and treatment. Rather than encounter situations in which a patient may not understand the scope of routine and medically necessary services, it is prudent to reconsider the purpose and use of general admission consent forms. Strategies for this purpose include the following: 1. Evaluate Applicable State Law. Work with legal counsel to identify applicable state law requirements with respect to the content and use of general admission consent forms. Determine if there are any restrictions or special provisions such as opt out mechanisms for HIV testing. 2. Evaluate the Current Process for Using the General Admission Consent Form. Flowchart the existing approach for using the general admission consent form. Ask pertinent questions such as the following: a. Does the process comport with applicable state law? b. Is the content aligned with applicable state law? c. Is the current process consistent with established policy and procedure for consent? Use the responses to these questions and the findings of the evaluation to make practical recommendations for change. 3. Revamp the Terms of the General Admission Consent Form. Take the opportunity to carefully review and revise the terminology of the general admission consent form to make it unambiguous and aligned with recognized standards for health literacy. Make a determination whether it is prudent to include in the general admission form a list of items of what constitutes routine and medically necessary tests and treatments.

7 7 4. Establish a Consent Communication Process for the General Admission Consent. Provide personnel with a clear communication framework to be used with the general admission consent form. Make certain that the process includes applicable state law requirements. 5. Anticipate Exceptional Situations for the General Admission Consent. Recognize that there may be non-routine circumstances involving the general admission consent process and form. Consider medical emergencies, low visual acuity, auditory challenges, cultural disparity, or a need for a language interpreter or translator. Think about situations in which the patient or surrogate has questions that cannot be answered by the person managing the general admission consent. Build into policy and procedure a mechanism to address such matters. [See Sample Tool] 6. Provide Educational Opportunities for Using the General Admission Consent. Develop orientation and in-service programs that reinforce the point that the general admission consent is not just an administrative formality. Provide case examples that help personnel understand how to successfully complete the general admission consent process. Conclusion. Controls and countermeasures of any type are always in an arms race against new risk-presenting technologies. As technologies advance, countermeasures are developed until new technologies arrive that circumvent the countermeasures, et cetera. In the rapidly-changing world of technical singularity, communication is essential to control and manage new and evolving risks. Engage patients, providers, and the community in a dialogue to transform social media and mobile technologies into tools that promote high-quality, efficient, and effective care.

8 8 DIALOGUES IN HEALTHCARE is a publication of The Rozovsky Group, Inc./RMS. This publication is not intended to be and should not be used as a substitute for specific legal advice. For additional information on consent to treatment, refusal of consent, and patient-provider or provider-provider communications, please contact us. Contact Information: The Rozovsky Group, Inc./RMS, 272 Duncaster Road, Bloomfield, CT Tel: (860)

9 9 Sample Tool Exceptions General Admission Consent Process In accordance with organizational policy and procedure, a general admission consent process should be completed at the time a patient is admitted to the healthcare organization. Exceptions to this process include the following:! Medical emergencies.! Patients with cognitive disabilities without a duly authorized surrogate decision-maker.! Patients with low visual acuity who require a special reading machine or verbalization of the content of the general consent form.! Patients who require a language interpreter.! Patients with low health literacy who cannot understand the content of the general admission consent! Patients who decline to sign the general admission consent until they have specific questions addressed.! Patients who refuse to sign the general admission consent due to components of the documents.! Patients who wish to x out words or phrases in the general admission consent form. Reception and admission personnel should contact the nurse manager or risk management office for assistance with exceptions involving nonemergency patients in completion of the general admission consent form. Any questions about clinical services or treatments included in the general admission consent form should be directed to a designated clinical professional.

10 10 1 MMRR, September 22, 2006 / 55(RR14);1-17, accessed at For a state-by-state reference on the subject, See, State HIV Laws accessed at: 4 Neb. Rev. Stat (2011) Wis. Stat (2011) Neb. Rev. Stat (2011). 11 Mass. Gen. Laws. ch. 111, 70F (2012). 12 See, State HIV Laws supra note