Ask your Practice Advisor
The purpose of the Practice Advice page is to draw registrants’ attention to practice issues and to provide some discussion of them in order that registrants firstly have an increased level of awareness of those issues and secondly so that they can take steps to further inform themselves of relevant aspects of these issues. As a general rule, the professional conduct of registrants is governed by and subject to the Practice Standards and Bylaws of the College as well as those standards that are implicit to the profession of physical therapy.
Disclaimer: Registrants, please take careful notice and be fully aware that the purpose of this new “Ask your Practice Advisor” page is to provide guidance only and the contents of the page do not constitute legal counsel or advice. It is not intended that the contents of the As your Practice Advisor Page be relied upon exclusively by registrants to inform their actions. If as a Registrant you have any legal concerns about a practice issue should obtain timely and relevant legal advice concerning it.
FREQUENTLY ASKED QUESTIONS
(These questions have been published in past issues of the College newsletter – “Update.” The issue and edition of newsletter are referenced accordingly).
- How long should I keep my clinical records? How do the recent changes to the Limitations Act impact record retention?
- My patient has kindly brought me a gift, but I’m not sure if I should accept it. What are the risks?
- If I employ support workers who are trained in Pilates, can I assign part of the physical therapy treatment plan to them, or should they independently determine the Pilates program?
- What are the confidentiality issues when considering sending patient information via fax or email?
- How much can I charge a patient when I provide them with a copy of his/her clinical record?
- What College Regulation should I review if I’m considering using discounts, pre-payment, and gift certificates as part of my business marketing strategies?
- I’m looking into starting my own private practice; what are the College requirements?
- I’m now working for a Health Authority or in a non-physical therapy role. Do I still need to maintain malpractice insurance?
How long should I keep my clinical records? How do the recent changes to the Limitations Act impact record retention? (Summer 2013 • Volume 14 Issue 2 p. 12-13)
The current College requirement for record retention is set out in Practice Standard No 1 which requires registrants to retain clinical, appointment and financial records for a minimum of six years from the date of the last entry with exceptions for minors. On June 1, 2013, a new Limitation Act came into force which changes the limitation periods that apply to deadlines in which people have to file a lawsuit against another person, such as a physical therapist. As a consequence, the Practice Standard will be revised to reflect the new periods.
In the meantime, the College strongly recommends that physical therapists change their document retention practices. Under the new Limitation Act, patients will generally have two years from the date of discovery of a claim to commence a lawsuit against a physical therapist with a maximum limitation of 15 years in special circumstances. In the event that a patient makes a claim against a physical therapist, it is beneficial to the physical therapist to have access to the patient’s clinical record. It is permissible to convert and store records in electronic form under the Electronic Transactions Act. Registrants should take into account that the person suing has at least one year in which to notify the physical therapist that a claim has been brought against him or her. This means that the record retention period should be 16 years to account for the notification period.
It is anticipated that the new Practice Standard will require registrants to retain their records for 16 years. This is consistent with the changes made by the College of Physicians and Surgeons of BC (CPSBC) and the College of Dental Surgeons of BC (CDSBC) where physicians and dentists are now required to retain their records for at least 16 years from either the date of the last entry in the patient’s chart, or from the age of majority, whichever is later. (See CPSBC Bylaw 3-6 and CDSBC Dental Record Keeping Guidelines).
The limitation periods are different for infants and people with a mental disability.
The limitation starts to run on the day that an infant reaches his or her 19th birthday. Therefore, as a general rule, the record retention period for a minor is to the age of 19 plus 16 years. For example, if a physical therapist treats a child who is 12 years old, and there is an injury, that child will have to the age of majority and potentially 16 more years to commence an action against the physical therapist. This means that the physical therapist should keep that patient’s records for 23 years.
Other exceptions include people with a mental disability in which case the limitation starts to run on the date that person recovers from the disability. Where the mental disability is permanent, there is no limitation period. There is no limitation period for sexual assault claims.
This information is intended for general information purposes only and not as legal advice. The legislation contains some important exceptions.
Registrants should be aware that for claims that arose prior to June 1, 2013, the Limitation Act in effect at the time continues to apply. Physical therapists may wish to seek legal advice regarding the limitation periods that apply to those records. Registrants are encouraged to review the new Limitation Act and may wish to consult a lawyer regarding specific questions.
My patient has kindly brought me a gift, but I’m not sure if I should accept it. What are the risks? (Spring 2013 • Volume 14 Issue 1 p. 11)
Robin has been working with a patient, James, for several weeks when he drops by with a kind note and a gift card for a local restaurant – to thank her for the excellent physical therapy care she has provided. Robin gladly accepts, and the bonus is, the gift card is to one of her favourite restaurants.
A week later, James asks Robin if she has used the gift card; she hasn’t yet. The patient says he would love to join her for dinner at the restaurant. Robin isn’t sure she wants to accept; the patient’s request is making her think that perhaps he is interested in pursuing a personal relationship. Robin decides to tell James that she has already used the gift card and enjoyed a wonderful meal, and diverts the conversation back to physical therapy treatment.
The following week James asks Robin to request a treatment extension from his insurer, which Robin doesn’t believe is necessary. Robin decides the ethical thing to do is explain to the patient that she can’t make the request based on her objective measures. The patient is unhappy with this response and cancels his next appointment.
Two weeks later, Robin’s boss approaches her to let her know that the patient wrote a letter complaining that Robin had accepted a $150.00 gift card and that the patient now feels it was inappropriate for her to have accepted the gift, and wants to be reimbursed.
What were Robin’s options when the gift was offered? She wanted to accept the gift, and the patient might have been offended if she declined the gift card.
Accepting or Declining Gifts – Recognizing the Risk
It’s important to be aware that whenever a gift is accepted, it comes with a degree of risk. From a professional perspective – we’ve already been paid for our services to our patients, and no further compensation is required. The therapeutic relationship with the patient exists for one purpose only – to provide physical therapy services for the benefit of the patient. It starts to muddy the waters when gifts are accepted, because now the physical therapist is benefiting from the therapeutic relationship in ways other than the agreed upon fee for service. Accepting gifts can lead to the perception that there is a personal or reciprocal relationship, as opposed to a professional relationship between the patient and physical therapist.
When the boundaries between personal and professional relationships start to blur, the risk rises. Will your professional judgment be influenced by accepting the gift? Will your patient misunderstand the nature of your relationship, even if it’s a very modest gift that you accept or repeatedly accept? Would you be happy to disclose to your boss or colleagues that you accepted a particular gift? These are questions that can help determine the level of risk when accepting a gift from a particular patient. No gift is risk free, and often the ‘strings attached’ are not visible until later, when the gift can no longer be returned.
Assignment of Task to a Physical Therapist Support Worker
If I employ support workers who are trained in Pilates, can I assign part of the physical therapy treatment plan to them, or should they independently determine the Pilates program? (Summer 2012 • Volume 13 Issue 2 p. 8)
The College receives many questions regarding the use of physical therapist support workers in the provision of yoga or Pilates classes, and whether or not this is considered physical therapy. This is a complex question that requires some thought about the individual situation. It is helpful to refer to College Bylaw 56 – Minimal Treatment Standards, and Practice Standard No. 3 – Assignment of Task to a Physical Therapist Support Worker; available at www.cptbc.org. In addition, College Bylaws require that receipts provided by physical therapists must not be “false or misleading”.
Consider Two Different Scenarios:
Scenario 1 – The physical therapist has taken extensive training in yoga or Pilates techniques and often incorporates these techniques into the physical therapy treatment plan. There is a physical therapist support worker employed at the clinic who is also trained in yoga or Pilates. The physical therapist assesses and treats the patient for several sessions, determines the treatment program for the patient and assigns a portion of the treatment program to the support worker. For example, the support worker will assist the patient in performing specific poses or exercises that form part of the physical therapy treatment plan. The physical therapist meets all of the requirements set out in College Practice Standard No. 3 – Assignment of Task to a Physical Therapist Support Worker; including conducting regular reassessments of the patient, progressing the exercise program, and completing the required documentation (of the assigned task, and in the clinical record). In this way, assigning patient-specific yoga or Pilates techniques to be completed by a competent support worker under the direction and supervision of the physical therapist may occur as part of the physical therapy treatment program.
Scenario 2 – The physical therapist has been treating the patient for several sessions and determines that the patient might benefit from attending yoga or Pilates classes. The physical therapist refers the patient to the yoga or Pilates studio in the same clinic/building as the physical therapy clinic. The patient attends yoga or Pilates classes which are not patient specific and are taught by a certified instructor.
In scenario 1, the physical therapist is assigning a portion of the physical therapy treatment program in accordance with Practice Standard No. 3 – Assignment of Task to a Physical Therapist Support Worker, and retains responsibility for the assigned task, progressing the treatment program, and ensuring competence of the support worker. The physical therapy treatment is patient specific, is under the direction and supervision of the physical therapist and may be billed as physical therapy treatment. Where treatment on a given day is provided exclusively by a physical therapist support worker, it is always best to ensure that the provider is indicated on the receipt, especially where a third party payer is involved. In this way, the receipt provides a transparent and accurate account of who provided care on a given day.
In scenario 2, the physical therapist is simply making a referral to a program that he/she believes might be beneficial to the patient, however, it is not part of the physical therapy program as it is not patient specific, and the instructor is not functioning as a physical therapist support worker. The program in scenario 2 is not directed, supervised, and progressed by the physical therapist. It is important that billing is accurate and indicates what service is being provided – in this scenario, a receipt is provided for a yoga or Pilates class.
If you have questions about the use of support workers by physical therapists, please refer to College Practice Standard No. 3 – Assignment of Task to a Physical Therapist Support Worker or contact the College directly at 604 730 9193.
Privacy and Access to Information
What are the confidentiality issues when considering sending patient information via fax or email? (Fall 2011 • Volume 12 Issue 3 p. 3-4)
Do you communicate with your patients via email? Do you give patients your home email address? Do patients ever ask you to send them copies of written reports via email?
The College is receiving more questions about communicating with patients via email and the associated risks. Recently an article appeared in the Physiotherapy Association of BC (PABC) newsletter, Directions, written by physical therapist Marj Belot in consultation with Susan Paul. Much of the content of this article is adapted from the PABC article. College regulation does not prohibit physical therapists from communicating via email, however, there are risks associated with email communication and these should be considered on a case-by-case basis.
The following factors should be considered when communicating patient information.
- College Bylaw 60, section 2 states: A registrant must at all times protect and maintain the confidentiality of personal information collected.
- There are provincial privacy laws in British Columbia for both private and public sector physical therapists. Physical therapists in private practice should be aware of the Personal Information Protection Act (PIPA) and must adhere to the PIPA standards. Public practice physical therapists should be aware of the Freedom of Information and Protection of Privacy Act (FOIPPA) and must adhere to the FOIPPA standards. Both documents are available online via www.bclaws.ca.
- Options for maintaining confidentiality include removing identifying information from the email transmission and/or encrypting the message. For example, you could use the patient’s initials, but exclude their name and claim number from an email message. Remember that sending an email message is like sending a postcard, it’s not considered confidential. The more sensitive the information you intend to send, the more sensitive you should be around protecting patient confidentiality. There is always a risk that information will be forwarded to others, either by the patient, or another recipient.
- It is advisable to have a confidentiality statement as part of your standard email signature. An example would be that used by the College: “CONFIDENTIALITY NOTICE: This e-mail, together with any attachments, is for the exclusive and confidential use of the addressee(s). Any other distribution, use or reproduction without the sender’s prior consent is unauthorized and strictly prohibited. If you have received this message in error, please notify the sender by email immediately and delete the message from your computer without making any copies.”
- Before you hit send, double check the email address to which you are sending, ensure it is correct and that you are not unintentionally sending to the wrong person or adding unintended recipients.
- If you are aware of the compromising of a patient’s personal information, the Office of the Information and Privacy Commissioner of BC has a “Breach Notification Assessment Tool” and resources to assist you in determining when to advise patients of an incident. You should also advise the patient of what steps will be to taken to prevent a recurrence. To review Key Steps in Responding to Privacy Breaches visit here.
- Remember that you are still engaging in professional communication and that a copy of the email should be included in the patient’s clinical record, which is a legal document. The tone and content of the email should reflect these facts, by maintaining a formal, courteous and professional tone to ensure professional boundaries are maintained.
- Pay attention to email addresses, signatures, and taglines. Ensure all are appropriate for a professional setting and won’t distract from the professional nature of the communication. Using a work email address, as opposed to a personal email address, can help in maintaining professional boundaries.
- Don’t rush to hit ‘send’ in the aftermath of a difficult situation. Communication via email is much more immediate than traditional written ‘progress reports’, and, as such, care needs to be used to avoid sending impulsive or heated comments, that might be considered inappropriate or unprofessional in retrospect. Ask yourself if you would make the same comments in a more traditional form of professional communication? Be aware that email messages lend themselves to a more casual style of dialogue and informal salutations, instead of usual professional wording.
How much can I charge a patient when I provide them with a copy of his/her clinical record? (Fall 2007 • Volume 8 Issue 3 p. 5)
Physical therapists often look for assistance from the College or PABC regarding charging a fee for releasing a copy of a patient’s clinical record. Both the provincial privacy legislation and College Bylaws provide information on this topic. Section 32 (2) of the Personal Information Protection Act (PIPA) reads: “an organization may charge an individual who makes a request under section 23 a minimal fee for access to the individual’s personal information…” College Bylaw 59 section 4 reads: “Where a registrant provides access and the applicant requests a copy of the record, a copy must be provided. A charge may be applied to cover costs for photocopying and, where appropriate, staff time in retrieving the documents”. Be sure to let clients know of the fee in advance, and you might choose to outline the cost breakdown for photocopying costs and staff time for retrieving the clinical record, or where requested, for reviewing the chart and initialing each page to show the copy is a true and complete copy of the original clinical record. If a complaint is made to the College, given that a specific fee is not listed in the Bylaws, the Inquiry Committee would have to determine whether a reasonable fee had been charged in a given scenario. If you don’t think your physical therapy practice policy meets College Bylaw 59 and PIPA requirements, it might be time to review your release of clinical records policy.
Business Practice Standards
What College Regulation should I review if I’m considering using discounts, pre-payment, and gift certificates as part of my business marketing strategies?(Fall 2009 • Volume 10 Issue 3 p. 6-8)
Business and Marketing Practices
Q: Can I market my business by offering coupons for discounted physical therapy services, or donate a gift certificate for a free treatment session to be used as a door prize by a local organization?
A: Recently, the Standards of Practice Subcommittee has received several questions from registrants regarding prepayment for ‘blocks’ of treatment, and discounted or free physical therapy services. The subcommittee recognizes that College regulation is silent on issues of fee structure, and offering discounted or free services as a means of acquiring new patients. However, there are Bylaws and a Practice Standard that physical therapists should consider carefully.
College Bylaw 55, Code of Ethics
Section 1.1: physical therapists shall consider the well-being of the client as their primary concern…
Section 1.9: physical therapists must not treat clients when … the commencement or continuation of physical therapy is contra-indicated or unnecessary.
Bylaw 57 (4)
Where the client is assessed a fee for physical therapy services, the client must be notified of the charges in advance.
Bylaw 57 (5)
The physical therapist shall verify all accounts rendered on a fee-for-service basis.
Bylaw 57 1(a)
A registrant must not charge fees for services which have not been provided.
Bylaw 57 1(b)
A registrant must not treat a client solely for financial gain rather than for the benefit of the client.
College Practice Standard No. 8 Conflict of Interest [excerpt only]
A conflict of interest is a breach of an obligation to one’s professional ethics which has the effect, or intention, of advancing one’s own interest or the interest of others in a way detrimental to the interest of the client, or potentially harmful to the integrity of the physical therapy profession. Conflicts of interest and the appearance of conflicts of interest must be avoided.
A conflict of interest arises when a physical therapist’s actions or decisions may reasonably be perceived to be, or are in fact, motivated or influenced by financial gain or the potential for financial gain. A physical therapist shall not render service in any situation that will compromise his/her professional integrity, standard of practice, or place him/her in a conflict of interest. The physical therapist only provides professional services in situations where there is a demonstrated need for the services. The physical therapist must not continue services to a client when the services are no longer required by the client.
Where pre-payment for one treatment occurs, the receipt must indicate that payment is for ‘pre-payment’ of physical therapy services. There is a risk with pre-payment that by providing a receipt for ‘physical therapy services’ in advance of the service occurring, that the receipt could be submitted for reimbursement by a third party payer, even if the treatment were cancelled and a refund issued. After the pre-paid physical therapy service occurs, a second receipt indicating that service was provided, must be provided. There must be a clearly communicated refund policy indicating that if either the patient or the physical therapist cancels the pre-paid treatment that the fee will be refunded in full, without penalty. Where a cancellation fee exists, it must be clearly communicated to patients in advance. Pre-payment for services must not be required in order for treatment to occur.
Pre-payment for a block of services could, from the public perspective, have the appearance of a conflict of interest. When fees have already been paid for services (e.g., 10 visits) and clinical judgment indicates the patient should be discharged after eight visits, this requires that the physical therapist pay back fees to the client. Would the patient perceive that you extended treatment to the pre-paid amount based on financial interests rather than patient interests?
With respect to offering free or discounted services in any form (eg., coupons, draw prizes, discounts for certain groups, etc.) as a means of acquiring new patients, this could be seen as inducement where services are not needed. Practice Standard No.8 states that the physical therapist only provides professional services in situations where there is a demonstrated need for the services. The physical therapist must not continue services to a client when the services are no longer required by the client. College Bylaw 55, the Code of Ethics, section 1.9 states that physical therapists must not treat clients when… the commencement or continuation of physiotherapy is contra-indicated or unnecessary. Regardless of the fee charged, physical therapists must provide safe, ethical, and effective treatment and meet all College requirements.
I’m looking into starting my own private practice; what are the College requirements? (Spring 2007 • Volume 8 Issue 1 p. 9-10)
Q: I’ve been working at a hospital and now plan to start up a private practice; what do I need to do differently?
A: A registered physical therapist is able to practice physical therapy in British Columbia in either a public or private practice setting. The same rules apply to all physical therapists in British Columbia regardless of our practice setting – we must carry malpractice insurance, maintain client records in a secure manner, follow provincial legislation on access to records, and meet the requirements as set out in College Regulation. The requirements to practice physical therapy do not change based on whether we are independent practitioners, hospital employees, private practice owners, or consultants.
A few things to keep in mind:
- College Bylaw 46.1 on liability insurance states: “All registrants of the College and their employees must be insured at all times against liability for negligence in an amount of at least $3 million per occurrence.” If you have been practicing in a facility that is owned and operated by a Health Authority, malpractice insurance coverage is provided on your behalf for work within your job description and within the Health Authority. If you now intend to practice physical therapy outside of the Health Authority, you must first purchase malpractice insurance in accordance with Bylaw 46(1).
- One place where the regulation differs slightly between public and private practice is whether you must comply with the Personal Information Protection Act (PIPA) or the Freedom of Information and Protection of Privacy Act (FOIPPA). Private sector physical therapists must comply with PIPA and public sector physical therapists must comply with FOIPPA. There are links to both Acts on the College’s website at www.cptbc.org and there is additional information on PIPA.
- It is always advisable to contact your local City Hall to clarify business license requirements and facility insurance requirements, etc. Your malpractice insurer will likely also have some information on additional insurance considerations for your new practice setting. The Physiotherapy Association of BC (PABC) has information relating to running a business such as an associate contract template, a guide to physical therapy fees, a guide on starting a private practice, and marketing ideas. PABC can be contacted at www.bcphysio.org or by calling 604 736 5130.
- There are specific regulations relating to Corporations and these can be reviewed here. So, if you plan to change your practice setting, open up your Reference Guide or review the College’s Bylaws, Practice Standards, Practice Directives, and Advisory Statements on our website.
I’m now working for a Health Authority or in a non-physical therapy role. Do I still need to maintain malpractice insurance? (Fall 2006 • Volume 7 Issue 3 p. 3)
Q: I’m no longer practicing physical therapy and am an inactive registrant. Should I still carry malpractice insurance?
A: This is a question you should discuss with your malpractice insurance provider. Most malpractice insurance for physical therapists provides coverage based on when the claim of malpractice is made, NOT based on when the alleged incident occurred. What this means is that if a physical therapist retires or leaves practice, and a claim is subsequently made against the physical therapist after his or her insurance has lapsed, the physical therapist will not be covered. To address this scenario, most insurers offer an extended reporting period or ‘tail’ policy which can be purchased to provide protection beyond the period of practice. Please consult with your insurance provider for specific details of your plan, as some coverage may include a form of ‘tail’ policy.
Note: To read more about claims made vs. occurrence-based malpractice insurance coverage, please see the article on page 4 of the Fall 2005 edition of Update.