Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

Obtaining Patient Consent

Client Alert
October 4, 2023

Patients have autonomy to choose what can and cannot be done to their bodies. Therefore, informed consent is required before any treatments or procedures commence. This is a stark contrast to the previously recognized paternalistic approach, which relies solely on the decision-making of the provider.

However, in order for patients to really choose whether or not to submit themselves to a particular healthcare service, they must actually understand what the service is. Therefore, patient consent should help the patient understand the risks and benefits, as well as any alternative treatment options.

Obtaining Consent

Merely having a patient sign an informed consent is not enough for a patient to consent. Rather, providers should have an active dialogue with patients, which starts with explaining a diagnosis, the proposed treatment including its benefits and risks, and any alternative treatment options and their benefits and risks. Providers should allow patients to ask any clarifying questions they may have. Only after this dialogue can a signed consent be obtained.

While some states recognize verbal consents as valid, others require that patients sign an authorization form to show that consent was actually obtained.

Capacity to Consent

Even if a provider engages in a dialogue with a patient clearly laying out the patient’s diagnosis, treatment options, and benefits and risks, some patients still cannot consent due to lack of capacity. If a patient cannot understand or appreciate the benefits, risks, and alternatives, or cannot demonstrate reasoning in their decision-making, the patient likely does not have capacity to give a valid informed consent. One way to determine whether a patient has capacity is to have the patient restate in their own words what they understood about the dialogue with their provider.

Further, while minor patients may seem to have capacity, they are incapable of providing informed consent (although there are some exceptions in states where the minor is emancipated or is being treated for specific illnesses, such as sexually transmitted diseases). Therefore, consent to treat minors will generally require a parent or guardian’s signature. 

Penalties

Failure to adequately obtain informed consent may result in consequences, including but not limited to medical malpractice lawsuits, loss of hospital privileges, or removal from preferred provider lists.

If you have any questions regarding patient consent in general, or whether your current process for obtaining informed consent is compliant with applicable state and/or federal law, please don’t hesitate to contact BMD Health Law Group Member Jeana M. Singleton at jmsingleton@bmdllc.com or 330-253-2001, or BMD Attorney Rachel Stermer at rcstermer@bmdllc.com or 330-253-2019.  

Patient ConsentHealth LawHealthcare Policy
Client Alert

Your Workplace Under Biden

November 9, 2020This is my favorite recurring post – Predictions of How a New Administration Will Affect Your Workplace. Four years ago, we accurately called the emasculation of the 2016 proposed FLSA Overtime Rules (the salary exemption threshold was set at $35,568 in 2019, rather than $47,476 as proposed), we forecasted a conservative shift of the NLRB and its results (a roll-back of employee rights, social media policy evaluations, and joint employer rules), and we nailed the likelihood of multiple conservative appointments to the United States Supreme Court and its long-term effects (although I completely failed to predict that my ND classmate Amy Coney Barrett would fill the final vacancy during the Trump administration). This time, the L+E Practice of BMD has decided to make it a group effort at predicting what will happen, what probably happen, and what might happen under President Biden. As always, please save this in your important files and pull it out four (or eight) years from now to judge our accuracy.Client Alert

HHS Provider Relief Funds Reporting Requirements: Important Updates Every Provider Should Know

November 4, 2020HHS continues to revise its reporting requirements for the use of the Provider Relief Funds. Providers with more than $10,000 in Provider Relief Fund payments must report on the use of the funds through December 31, 2020. The reporting window will begin on January 15, 2021 and providers must complete reporting obligations for FY 2020 by February 15, 2021 through a portal designed by HHS. However, providers that have unexpended funds as of December 31, 2020, will have an additional 6 months to use the remaining funds through June 30, 2021. These providers must submit a second and final report no later than July 31, 2021.Client Alert

Should I Apply for Phase 3 Funds? Important Considerations Every Provider Should Know

November 2, 2020On October 1, 2020, the Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers through a Phase 3 distribution. Importantly, providers that previously received HHS Provider Relief Funds or already received payments of approximately 2% of annual revenue from patient care are eligible to apply. Eligible providers have until November 6, 2020 to apply for these Phase 3 Funds. However, the question from providers continues to be: Should I Apply for Phase 3 Funds?Client Alert

CISA Ransomware Practices

October 29, 2020On October 28, 2020, the United States Cybersecurity and Infrastructure Security Agency (CISA) issued an alert warning of imminent threats to US hospitals and healthcare providers. The specific threat involves RYUK Ransomware attacks. RYUK is a novel ransomware that goes undetected by commercial anti-virus/malware detection programs. Once deployed, RYUK encrypts all data and disables systems. In short, it cripples all functionality down to phone systems and automated doors. Healthcare providers should alert their employees to remain hyper-vigilant and report any suspicious activity seen in email or on networks. It has been reported healthcare providers in New York, Pennsylvania and Oregon have been targeted in the last 48 hours. If your organization encounters issues, BMD can assist in mobilizing a response team and has contacts with forensic IT firms that are familiar with RYUK. It is advisable to engage professionals with experience dealing with this specific threat.Client Alert

HHS Announces an Additional $20 Billion In Provider Relief Grants

October 5, 2020The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.
Older posts
Newer posts