More High-deductible Health Plans Could Pose Ethical, Legal Problems

November 13, 2013
Ericka L. Adler, JD
Ericka L. Adler, JD

Shareholder at Roetzel & Andress

Physicians need to talk with advisers about the new ethical and business dilemmas that will be posed by high-deductible insurance plans.

As physicians continue to grapple with how their practices will be affected by the Affordable Care Act (ACA), one of the key unknowns is whether patients will be able to afford new healthcare coverage and treatment under the act, and whether the promised flow of millions of new patients will come to fruition.

For my physician clients, one additional concern is the number of patients with high deductible health insurance plans (which we can expect to increase). I wrote about the business issues posed by such plans in an earlier blog.

Another concern related to high deductible plans is patients who cannot (or sometimes will not) pay for recommended testing or treatment.  Even if a patient has insurance coverage, a plan that requires large out-of-pocket deductibles or high copayments may leave a patient unable to afford a required test or treatment.  For physicians treating such patients, this can pose an ethical dilemma (how do I properly treat the patient?) and a legal predicament (will I get sued if the patient does not receive this service?).

Recently, I spoke with a gastroenterologist facing this dilemma.  She had a patient with a high deductible insurance plan with indications of cancer.  The doctor’s practice was able to offer the testing needed and explained to the patient the costs upfront, knowing the patient had not yet come close to meeting the deductible for his plan. The patient indicated the cost (even a payment plan) was unaffordable, and declined to travel to a county hospital where the test might be provided at a lower cost or free of charge.  Unsure what to do, the physician spoke with her malpractice carrier who recommended doing the testing for free.  The client then called me for my advice.

It’s hard to know what to do in a situation like this. Should a physician do a costly procedure for free simply to make sure the patient has the test done?  This potentially resolves the legal malpractice issue, but certainly creates business issues.  After all, physicians should not have to provide care for free, should they?  And how do ethical concerns about the patient’s health fit into this debate? What about the legal issues created by physicians waiving copays and deductibles?

Unfortunately, there is no clear directive on how physicians can best deal with these situations.  Here are some steps to consider taking:

1. Explain to the patient the importance of the ordered test or service in the assessment and treatment of his health.  Clearly set forth the risks if he does not obtain the services.

2. Familiarize yourself with and refer the patient to alternative low-cost or charitable institutions (such as community clinics, county hospitals, etc.).
 
3. Assess and discuss any available lower-cost diagnostic and/or treatment options that you believe are medically appropriate.  There may be instances where a less expensive test or service, although not optimal, still allows you to make a diagnosis or treatment plan.

4. Document in the patient's record that items 1 to 3 were discussed with the patient and the patient's response. 

5. If the patient refuses to receive the test or services, ask him to sign a form acknowledging his informed decision.  The form can be pre-printed, with blanks to write in the ordered test or service and the patient's reason for refusal.  The signed form should be placed in the chart.  If the patient refuses to sign the acknowledgement, placed the form in the chart with an indication of the date/time he refused to sign.

6. Remember to follow up on a patient who states that he will obtain testing elsewhere if you do not receive test results or see/hear from him. Document these efforts carefully!

Although there is no certainty that these recommendations will resolve the potential for malpractice issues, it is helpful to have a process in place to minimize risk.  Physicians need to remain aware of the new ethical and business dilemmas that will be posed by high-deductible insurance plans.  Talk with your advisers to make sure you’re ready to protect your practice and your patients.