Category Archives: Legal matters

How to Write an ATP (Alternative Treatment Plan)

Many of us in supervisory positions in correctional medicine have Utilization Management (UM) duties. One common duty is to review requests from primary care practitioners for patient care procedures like a referral or, say, an MRI. We must then decide whether to approve the request or write an Alternative Treatment Plan (ATP). This process is loosely based on a similar practice done in HMOs in free world medicine, but there are important differences. In an HMO, the evaluator is deciding whether the HMO will pay for the procedure. If the requested procedure does not meet HMO criteria, the evaluator will deny the request. The procedure can still be done, but the patient and her physician will have to find an alternative method of paying for it. Also, the HMO evaluator does not offer opinions on whether the procedure is appropriate nor does she offer suggestions as to what could or should be done instead.

Many of us in supervisory positions in correctional medicine have Utilization Management (UM) duties. One common duty is to review requests from primary care practitioners for patient care procedures like a referral or, say, an MRI. We must then decide whether to approve the request or write an Alternative Treatment Plan (ATP). This process is loosely based on a similar practice done in HMOs in free world medicine, but there are important differences. In an HMO, the evaluator is deciding whether the HMO will pay for the procedure. If the requested procedure does not meet HMO criteria, the evaluator will deny the request. The procedure can still be done, but the patient and her physician will have to find an alternative method of paying for it. Also, the HMO evaluator does not offer opinions on whether the procedure is appropriate nor does she offer suggestions as to what could or should be done instead.

Correctional Medicine UM is different. Those of us doing these evaluations are not being asked about payment; we are being asked for permission to do the procedure at all. We cannot simply deny the request like an HMO can. If we do not think the procedure should be done, then we must say what should be done instead: The Alternative Treatment Plan.

When done poorly, the ATP can irritate the primary care practitioner and even create an adversarial relationship between the practitioner at the site and the UM evaluator. When done well, the ATP is a written conversation between two equal colleagues and the ATP process can actually improve patient care.

Doing it wrong

Like any other bit of writing, it is important at the outset to define who your audience is. The ATP should be written with three potential readers in mind. The first is the site practitioner who made the initial request. A bad ATP will leave the PCP feeling underappreciated, threatened and disrespected: “I don’t trust you and you are stupid.” A good ATP will leave the PCP feeling like you are on the same team and that you have their back: “You’re doing great! Let me help you.”

The second potential reader of the ATP is The Adversary, like a plaintiff’s lawyer or an advocacy group. A bad ATP will indicate that you are denying the patient reasonable and necessary medical services. A good ATP will show that nothing was denied and will not imply that any medical service is off limits.

ATPs are also read by nurses, who have to transcribe and record the ATP in the official record. A good ATP will make their life easier. A bad ATP can result in many hours of needless, morale crushing busy work.

In my experience, it does not take much more time to write a good ATP instead of a crappy one.  Most UM evaluators, however, have never been taught how to write and ATP.  Here is how I write mine:

Step one: Restate what is being requested.

The first sentence of the ATP should briefly summarize the case and re-state what is being requested.

  • 56 yo male s/p colonoscopy done for guaiac positive stool. Request is for a routine post procedure FU with the gastroenterologist.
  • 63 yo male with reported gross hematuria.  Request is for CT of the abdomen.

Step two. Support your ATP.

The next section of the ATP contains the evidence that supports your ATP. This evidence can be pertinent positives, like x-rays, labs, previous visits. This evidence can also be pertinent negatives, like incomplete exams or missing data. Finally, this paragraph can also include pertinent research that supports your ATP, such as a quote from Uptodate, RubiconMD or InterQual.

  • The colonoscopy was negative except for a single sigmoid polyp. The pathology report on the sigmoid polyp is not attached to the report.
  • There is little clinical information accompanying the request.  I do not know if the patient has other medical problems, findings on physical exam, what medications he is one or what labs have been done.  Review of published treatment algorithms for the diagnostic work up of hematuria (Essential Evidence, Uptodate) show that CT is not the first diagnostic procedure that should be considered in most cases of hematuria.

Step 3. The ATP should defer the request; not deny it.

It is important to never (or rarely) use the word “denied.” Instead, you should restate what was requested and then say it is “deferred “pending whatever you want done instead, such as “Pending receipt of missing information,” “Pending complete evaluation of the patient at the site,” or “Pending case evaluation in a case review conference”

  • Routine post-procedure FU with GI is deferred, pending complete evaluation of the patient and colonoscopy findings at the site.
  • Abdominal CT is deferred pending complete evaluation of the patient at the scene.

Step four. Tell the Primary Care Practitioner what you want them to do instead.

The next sentence contains instructions to the site practitioner.  This is the “ATP” and should be labelled as such.  I also always date the ATP.

  • 3/11/2019 ATP: The site practitioner should obtain the pathology report on the sigmoid polyps and call me to discuss the case. The timing of follow colonoscopy will depend on the biopsy results.
  • 3/11/2019 ATP: The primary care practitioner should do a complete physical examination, appropriate labs and then discuss the case with me as to the next appropriate diagnostic procedure (ultrasound, cystography, etc).

Step five. State that whatever was requested can be reconsidered later.

I always add this last sentence as well, to reaffirm that I am not denying any medical care. “The request from the first paragraph” can be considered thereafter, if clinically appropriate or anytime if medically necessary.

  • Off-site GI visit can be considered thereafter, as clinically indicated–or at any time if appropriate.
  • CT can be considered thereafter, if clinically appropriate, or anytime if medically necessary.

Step six: Contact the PCP to let her know that her request was ATP’d.

I don’t think that PCPs should find out from a UM nurse that their request was ATP’d. They will feel much better about the process if you contact them. This also opens a method of communicating about the case if they have more questions. This can be accomplished with a simple email:

  • Hi Dr. X! Before we send this patient off-site to see the gastroenterologist, we need the biopsy report. If the adenoma is low risk, you can deliver the good news to the patient and tell him when his next colonoscopy will be scheduled. You’ll be seeing him in chronic care clinic in the meantime.
  • Hi Dr. Y!  I am attaching an algorithm for work up of hematuria.  As you can see, there are several things that should be done before we consider a CT.  Will you please call me to discuss this case?

Putting it all together, here are the full ATPs:

  • 56 yo male s/p colonoscopy done for guaiac positive stool. Request is for a routine post procedure FU with the gastroenterologist. The colonoscopy was negative except for a single sigmoid polyp. The pathology report on the sigmoid polyp is not attached to the report. 3/11/2019 ATP: Routine post-procedure FU with GI is deferred, pending complete evaluation of the patient and colonoscopy findings at the site. The site practitioner should obtain the pathology report on the sigmoid polyps and call me to discuss the case. The timing of follow colonoscopy will depend on the biopsy results. Off-site GI visit can be considered thereafter, as clinically indicated–or at any time if appropriate. Email to PCP: Hi Dr. X! Before we send this patient off-site to see the gastroenterologist, we need the biopsy report. If the adenoma is low risk, you can deliver the good news to the patient and tell him when his next colonoscopy will be scheduled. You’ll be seeing him in chronic care clinic in the meantime.
  • 63 yo male with reported gross hematuria.  Request is for CT of the abdomen. There is little clinical information accompanying the request.  I do not know if the patient has other medical problems, findings on physical exam, what medications he is one or what labs have been done.  Review of published treatment algorithms for the diagnostic work up of hematuria (Essential Evidence, Uptodate) show that CT is not the first diagnostic procedure that should be considered in almost all cases of hematuria. 3/11/2019 ATP: Abdominal CT is deferred pending complete evaluation of the patient at the scene.  The primary care practitioner should do a complete physical examination, appropriate labs and then discuss the case with me as to the next appropriate diagnostic procedure (ultrasound, cystography, etc).  CT can be considered thereafter, if clinically appropriate, or anytime if medically necessary. Email to PCP: Hi Dr. Y!  I am attaching an algorithm for work up of hematuria.  As you can see, there are several things that should be done before we consider a CT.  Will you please call me to discuss this case?

Two more examples (minus email):

53 yo s/p treatment for tongue cancer in remission. Request is for routine FU with ENT at six months from last visit.
The patient has finished all of his radiation sessions. ENT note from 7/17 states that the patient is in remission and that the six-month FU visit is “prn.” The consult request notes no new symptoms.
3/11/2019 ATP: ENT consultation deferred. Per last visit with ENT, further visits are to be “prn.” The site PCP should evaluate the patient at 6 months from the last visit and again at one year from the last visit. Off-site visit with ENT can be considered thereafter, as needed–or anytime if clinically necessary.

62 yo who had a liver ultrasound as part of Hepatitis C staging. The ultrasound showed a hypoechogenic polyp or cyst at the neck of the gall bladder. The radiologist says “A CT may be of value.” There is no report that the patient is symptomatic. I submitted the case to a RubiconMD radiologist, who thinks this is an incidental finding and repeat ultrasound in 6 months is a better methodology to follow this incidental finding.
3/11/2019 ATP: Abdominal CT is deferred. Per RubiconMD radiologist’s recommendation, the site PCP should order a follow up ultrasound at ~6 months. CT may be considered thereafter as clinically appropriate (or anytime if necessary).

As always, what I have written here is my opinion based on my training, experience and research.  I could be wrong! If you disagree, please say why in comments.

A previous version of this article was published in CorrDocs, the Journal of the American College of Correctional Physicians

Medical plan

Grievance Responses PLUS Sample Grievance Guideline

Benjamin Franklin once famously quipped “nothing is certain but death and taxes.” However, Franklin did not work in a jail, otherwise he would have said: “Nothing is certain except death, taxes and grievances.”

On the outside, patients do not write grievances—they vote with their feet. If they dislike the medical care they are receiving, they will just go to a different doctor. In a jail, they cannot do this. We have a grievance system in Correctional Medicine because our patients cannot fire us (and we cannot fire them–discussed previously here). If jail patients are unhappy with their medical care, their only recourse is to write a grievance.

Grievances are not necessarily bad things. A medical grievance is sometimes the way by which jail patients alert us to significant problems that we may have not known about or mistakes that we made. I myself have had my butt saved in this manner—more than once! Many grievances are simply about communication errors. We have not yet adequately explained a medical decision to the patient.

Yet jail medical personnel often have a bad attitude about grievances. This is unfortunate, because medical grievances are an important—even essential—part of the jail medical system. I believe that the most important reason for the bad attitude is that people have not been taught how to write a proper grievance response. That, then is the topic of today’s JailMedicine post. Continue reading

Is My Patient Faking?

This article was initially published on MedPageToday, found here.

I remember walking into one of my jails and seeing a patient on the floor of his cell twitching and shaking. “Don’t worry about him,” said the sergeant on duty. “He’s faking it.”
Boy, that spun me up! Nothing will make me more anxious than hearing “he’s faking” or its close cousin, “he’s malingering.” I hate and fear those words. Now, I know that medical personnel, both in my jails and in the emergency departments where I used to work, get upset when they think that they are being deceived or manipulated by a histrionic patient. But charging a patient with “faking it” is almost always a bad and dangerous idea. Continue reading

Is this a Medical Refusal–or Manipulation?

My good friend Al Cichon writes:

Dr. Keller – would you consider a discussion of balancing the autonomy of patient decision-making and the risk to the facility for not providing appropriate care.
Examples
1. Individual is on disability but wants to sign a ‘waiver’ of responsibility so he/she can work
2. Diabetic (NIDDM) individual that wants to refuse diet and be placed on insulin so he/she can eat what ever they wish
3. Individual with a comminuted jaw fracture – cut wires on episode of nausea – now wants regular food despite oral surgeon advising limited jaw movement
Documentation of appropriate exam and advice to the individual is, of course, the foundation of addressing the issue – but do you allow the 100% (physically) disabled person work; allow the diabetic to sign a refusal of the diet & prescribe insulin; give the individual with the broken jaw (who is asking for more hydrocodone) a regular diet?
I believe your expert ability to address these thorny issues will help us all

Thank you for the kind words, Al! The issue you highlight is indeed a thorny one—when a patient wants to refuse strongly recommended medical care. Sometimes these are true refusals, meaning the patient understands the medical intervention being offered and truly does not want it. More often, though, such refusals are a form of manipulation to get something else that the patient wants. I would like to address these two scenarios first and first and then discuss your three specific examples. Continue reading

The M-Word–Malingering

I went to the always excellent NCCHC spring convention in Nashville last month. One of the many outstanding presentations was done by frequent lecturer Deana Johnson. Deana talked about the risks of using the word “malingering.” Her basic message was to be very careful about saying that an inmate is malingering—in fact, perhaps we should never use that word.

I was surprised by the degree of spirited disagreement from several members of the audience. They pointed out that “malingering” has a specific medical meaning and sometimes—even often—it is an appropriate medical diagnosis. They pointed out that malingering is listed as an official diagnosis in DSM-5 and that outside medical agencies, like mental hospitals, use the term malingering. If we can’t say that an inmate who is clearly faking is malingering, what are we supposed to say?

Today in Jail Medicine, I am going to tackle the term malingering. It turns out that there is indeed a correct and proper way to use the term malingering in correctional medical practice—but it is tricky and most often (in my experience) done incorrectly, with resultant bad consequences.

There are three important reasons for this. First, most people have an inaccurate idea of what malingering actually means in a medical sense and so use the term inaccurately. Second, the use of the term “malingering” also carries with it an emotional definition that MUST be taken into account when it is used in a medical document. Finally, use of the term “malingering” has important consequences for patient relations, patient behavior and time management.

The bottom line, in my opinion, is that “malingering” is a term that should very rarely be used in correctional medicine. There are better and more precise ways to convey medical information. But if you do absolutely want to use the term “malingering,” you need to know how to use the term correctly. Continue reading

Reader Question: How Should We Handle Inmate Requests for their Medical Records?

Dr. Keller, We have recently had inmates requesting copies of their medical records. We have not been releasing those records but we now have a new jail commander that feels we should release those records. Also, what about after an inmate has been released and then requests the information? We’re not sure what to do on this and would appreciate any input you might have. Kathleen

That is a good question, Kathleen! I also frequently have inmates in my jails who request (or demand) copies of all of their medical records. Prisons typically do not have this problem because every state prison system (that I am aware of) already has a detailed policy and procedure on how to deal with inmate requests for medical records. Medical personnel are often not even involved in the procedure. But many jails, like yours, do not have a policy and are commonly confused about their obligations when inmates want copies of medical records.

Does HIPAA give inmates have a legal right to their medical records? What if there is sensitive information in the medical records? What about mental health records? Does it matter if the inmate wants to sue me? Some medical files are huge. Do I have to copy everything? If we have obtained medical records from an outside clinic, do I have to give the inmate those records, as well? How long do I have to respond to their request? Can I charge the inmate for my time and effort? What if the inmate has been released and then requests copies of her medical records?

I have had all of these issues come up in my jails. This is such a frequent occurrence, and is so emotionally charged, that every jail should have a written policy on what to do when an inmate requests copies of his medical records. Believe it or not, it turns out that HIPAA has a section specifically dealing with medical records in corrections. And so, Kathleen, today’s JailMedicine post will review the HIPAA guidelines for corrections, answer all of your questions and make suggestions to help you write a medical record policy for your facility.medicalrecord Continue reading

Price Check! Extended Release Antidepressants

Every once in a while, because of changing drug prices, I discover that my formulary has become outdated. More expensive medications are on my formulary and less expensive equivalents are non-formulary. Depending on how long the price change occurred before I noticed it, I may have overpaid hundreds of dollars unnecessarily. Oops!

This situation arises more frequently than you might expect. Drug prices can change rapidly. And formularies do not get updated often enough. I try to go through mine quarterly, but, to be honest, it probably happens only once or twice a year. As a result, I miss opportunities to save my jails some money.

Today’s example is extended release antidepressants. For many years, I never even looked at extended release drug prices. I just “knew” that ERs were much more expensive than their immediate release cousins. But wait long enough, and everything goes generic, including extended release.

If you have not yet noticed, you can save quite a bit of money (and time!) by switching to extended release venlafaxine (Effexor) and bupropion (Wellbutrin). Continue reading

Help a Brother Out! Outcome Studies

Hi Dr. Keller,

I was hoping I could pick your brain (and those of your readers) for ideas regarding Outcome studies.

We are an NCCHC accredited facility with a population of less than 500 inmates. We are required as part of our accreditation to complete 1 Outcome and 1 Process study annually. Outcome studies are more patient specific and Process studies are more global, referring to the process by which we deliver care.

I don’t usually have problems developing Process Studies, but always seem to get stuck on the Outcome studies. I am wondering if you or your viewers might share any suggestions on topics for Outcome studies or comment on topics they have studied in the past.

Thanks for your help–Bryan19970521 Continue reading

Rectal Contraband. What Would You Do?

Hey Jeff,
 like you I am an ER doc and am the Medical Director of a 550 bed jail. I would like you thoughts on body cavity searches. We had a case last week where an inmate was seen putting a baggy in his rectum. A search warrant was issued and the inmate was sent to the ER for a body cavity search. The inmate refused to let the ER personal touch him. He told the ER doc that it was a baggy of tobacco. The ER observed him for several hours and sent him back to the jail. No cavity search was done. The ER doc felt she would have to sedate the inmate to do the search and felt uncomfortable doing this against his will. The NCCHC frowns on the jail medical providers doing evidence related procedures or searches. My policy is to do the searches if the inmate will sign an informed consent and allow it to be done. If the inmate were to have a complication of sedation or the removal procedure that was done against his will, I would think a malpractice claim could be supported. How do you handle these types of situations in your jail?
 Thanks,
BJFUnknown Continue reading

Judges Practicing Medicine Continued

With regard to the recent article about judges issuing court orders for medical treatments while in jail, I wanted to get a legal perspective, so asked my friend David Tatarsky, who is General Council for the South Carolina Department of Corrections, for his thoughts.

South Carolina Department of Corrections

South Carolina Department of Corrections (Photo credit: Wikipedia)

Here is his response:

My thoughts   (all of which must be considered in light of the particular judge you are dealing with):

1.         You are exactly right about the major cause of this problem—–no one in the courtroom representing the interests of the jail/prison. The parties just want to get the plea completed and move on to the next case. Your solution is great if you can successfully develop the type of relationship you have created with the prosecutors.

2.         In some states, judges may be expressly prohibited from requiring particular medical treatment in a sentencing order.  Jails/prisons should check with Legal on this.  The analogous situation is when a judge sentences an inmate and requires the DOC to house the inmate in a particular prison.  In South Carolina, there is a state statute that says the DOC has the exclusive authority to determine where an inmate is housed:

(A) A person convicted of an offense against this State and sentenced to imprisonment for more than three months is in the custody of the South Carolina Department of Corrections, and the department shall designate the place of confinement where the sentence must be served.

Here is another one I use in South Carolina:

SECTION 24-1-130. Management and control of prison system.

The director shall be vested with the exclusive management and control of the prison system, and all properties belonging thereto, subject to the limitations of Sections 24-1-20 to 24-1-230 and 24-1-260 and shall be responsible for the management of the affairs of the prison system and for the proper care, treatment, feeding, clothing, and management of the prisoners confined therein. The director shall manage and control the prison system.

This is basically what attorneys call a “separation of powers” argument.  Managing inmates belongs to the DOC, a part of the Executive Branch of government.  A judge who tries to assume this power is going outside the power/authority of the Judicial Branch of government.

3.         Sometimes the problem can be solved via education.  Judges, like lawyers, have continuing education requirements.  See if you can get this issue addressed at a CLE for the judges.  My office does a lot of training for prosecutors, public defenders and (sometimes) judges on sentencing issues.  Maybe ask the legal office for the DOC in your state if they can help.

4.         Tied in with the education issue—many (most??) judges know little or nothing about how jails and prisons operate, because most attorneys, before they become judges, learn little or nothing about the corrections system.

5.         If your agency has in-house counsel, ask him/her to contact the judge when you get one of these orders.  What I sometimes do is write to the prosecutor and defense attorney, letting them know that the order is improper and asking them (nicely) to have it corrected.  If I get an unsatisfactory response, I sometimes contact the judge’s law clerk.  Judges do not want to look stupid.  If someone points out the issue to the judge (without embarrassing him/her), he/she may fix it.

6.         A “split the baby” approach is to have the judge “recommend” rather than order some form of treatment on the sentencing order.  Then you can just look at the medical issue when the inmate arrives and exercise your own professional judgment.

These are all excellent points.  I wonder how many other states have a “separation of powers” statute like South Carolina’s.  Mine does not (sadly).

I also like David’s idea of trying to get on the judge’s required Continuing Education schedule.  I intend to do this, myself.  If I am successful, I will write about the experience here.

Davis County Jail Success Story

Tied in with David’s thoughts, I especially liked James Ondracek’s comment about his experience:

I have been the Nursing Director at Davis County Jail for almost 20 years now. I have the e-mail addresses and phone numbers of every court clerk in Davis County. I contact them every time we have a medical issue that requires assistance from a judge. None of our current Judges will grant medical furloughs without contacting me first. I have inmates tell me all the time that they requested a medical furlough and the judge told them to talk to the jail medical staff first because he will not grant a furlough without receiving a recommendation from the jail. Likewise we do not currently, have a problem with judges ordering medications in the jail. It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. I have met with many of the judges in court chambers about specific inmate needs and discussed having the judge grant medical furloughs and releases from jail when appropriate. It is very worth it to build relationships and understanding with prosecutors, judges, and attorneys. You will not win every battle but from my experience, most judges are glad to contact the jail with a concern and glad to tell the inmate that the jail will take care of his medical needs and he is not qualified to make medical decisions as a judge. Incidentally, I have never had any of our doctors come to a meeting with a judge. I will occasionally ask him for a note to take with me to meet with a judge or the prosecutor but we have always been able to handle this with our in-house staff.

The key quote here is this: It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. It takes time and effort to cultivate a close relationship with judges and prosecutors.  But it is well worth the effort.  Besides being a medical care issue, it is also a time-management issue.  I believe that if you spend the time and effort to cultivate these relationships now, you will spend much less time in the long run—by a substantial margin. 20031105

What About Defense Attorneys?

Besides prosecutors and judges, it may also be worthwhile to cultivate a relationship with the defense attorneys.  Here in my hometown, one local defense attorney (who happens to be a friend of mine) organized a tour of the jail for the County Bar Association.  It was surprisingly well attended by around 40 attorneys.  The 1 ½ hour program featured short presentations by sheriff and the jail commander who talked about jail procedures  and another by me about jail medical services.  The attorneys then took a tour of the jail.  The attorneys had lots of questions.  Basically, like David Tatarsky said above, the attorneys did not know much about how jails work.  It was quite eye-opening for most of them.

The feedback was overwhelmingly positive. As part of my presentation, I gave each of the attorneys my personal cell phone number and invited them to call me if they had any questions about the medical services their clients were receiving.  (I reminded them that they had to have a Release-of-Information form signed by the inmate before I could talk to them in detail).  As a result of this, I have received several phone calls in the last month.  But as I told the attorneys, inviting them to call me directly is a time management issue for me.  It takes much less of my time to talk to them directly than to answer their letters, requests for records, subpoenas, etc.

Have you ever invited the Bar Association to tour your facility?  Please comment!

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