Malpractice is No Joke
An interview with Rachel Warners of CPH & Associates on the ins and outs of liability insurance. Curt and Katie talk with Rachel about some myths related to therapist liability, the best practices in getting (and keeping yourself) insured. We also talk about the types of claims and the services that are covered when you’re insured. We look at how you can best protect yourself from malpractice claims and what the most common complaints (and consequences) are.
It’s time to reimagine therapy and what it means to be a therapist. To support you as a whole person and a therapist, your hosts, Curt Widhalm and Katie Vernoy talk about how to approach the role of therapist in the modern age.
Interview with Rachel Warners, CPH & Associates
Rachel Warners is the Director of Operations at CPH & Associates, a leading provider of Professional Liability Insurance for mental health provider. Having been with CPH for 10 years, she understands the importance and unique nature of a therapists work and is proud to partner with them in protecting their career.
In this episode we talk about:
- Why you need liability insurance
- The benefit of keeping liability insurance continuously through your whole career
- Why you may need a policy while working as a W-2 with an employer who is covering you
- Debunking some myths about your liability
- The problem with letting your policy lapse or having a gap in coverage
- The benefits of continuously coverage (especially if you’d like to get credentialed with insurance)
- The types of services you’re entitled to when you’re covered
- The ability consult when you get subpoenaed
- Common board complaints and lawsuits, like practicing outside the scope of licensure, negligent supervision, boundary and dual relationship issues, custody conflicts, unprofessional conduct
- When you are not covered, even when you have insurance
- The consequences of having a board complaint whether the complaint is dismissed or not (and how to navigate reporting this to your insurance carrier, etc)
- How often complaints are founded or unfounded
- The cost of protecting yourself from complaints
- Other types of insurance you may want to consider as a practice owner (general liability – slip and fall, personal property coverage, cyber liability)
- Insuring your corporate name
- The importance of protecting yourself and using insurance to cover costs of handling your defense or the required steps to repair what is broken
- The ways that you can avoid liability, including accessing the resources availability to you
- Considerations for Telehealth
Resources mentioned:
We’ve pulled together resources mentioned in this episode and put together some handy-dandy links. Please note that some of the links below may be affiliate links, so if you purchase after clicking below, we may get a little bit of cash in our pockets. We thank you in advance!
CPH & Associates: http://www.cphins.com
CPH phone line: 312-987-9823 | 800-875-1911
Articles on Avoiding Liability
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Curt Widhalm is in private practice in the Los Angeles area. He is the cofounder of the Therapy Reimagined conference, an Adjunct Professor at Pepperdine University and CSUN, a former Subject Matter Expert for the California Board of Behavioral Sciences, former CFO of the California Association of Marriage and Family Therapists, and a loving husband and father. He is 1/2 great person, 1/2 provocateur, and 1/2 geek, in that order. He dabbles in the dark art of making “dad jokes” and usually has a half-empty cup of coffee somewhere nearby. Learn more at: http://www.curtwidhalm.com
Katie Vernoy is a Licensed Marriage and Family Therapist, coach, and consultant supporting leaders, visionaries, executives, and helping professionals to create sustainable careers. Katie, with Curt, has developed workshops and a conference, Therapy Reimagined, to support therapists navigating through the modern challenges of this profession. Katie is also Past President of the California Association of Marriage and Family Therapists. In her spare time, Katie is secretly siphoning off Curt’s youthful energy, so that she can take over the world. Learn more at: http://www.katievernoy.com
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Transcript (Autogenerated)
Announcer 00:00
You’re listening to the Modern Therapist Survival Guide where therapists live, breathe, and practice as human beings to support you as a whole person and a therapist. Here are your hosts, Curt Widhalm and Katie Vernoy.
Curt Widhalm 00:15
Welcome back Modern Therapists. This is the Modern Therapist Survival Guide. I’m Curt Widhalm with Katie Vernoy. And this is the podcast that deals with all of the things for therapists that aren’t what we do to our clients. And today, we are talking about one of those things that everybody knows that we should do, we tend to all do it. But most of us don’t really get into the whys in the hows of things work. We’re joined by Rachael Warner, she’s Director of Operations over at CPH insurance. And today is all about malpractice insurance, and all of the things where, if we need it once, it’s great, and if we don’t have it in place when we need it, it’s probably the worst thing that could ever happen to us. So thank you very much for joining us, Rachel, and sharing all of your wisdom with us. Absolutely. Thanks for having me.
Katie Vernoy 01:08
We are so excited to have you here. The first question we ask all of our guests is Who are you? And what are you putting out to the world?
Rachel Warner 01:15
Yeah, so we’re CPH and Associates, we have been in the industry for over 20 years. And we specialize in professional liability insurance for mental and allied health counselors. We are a leading provider of insurance, we are technology focused, so that we can uniquely meet the needs of therapists quickly. We understand the sensitive nature of it, we’re a small company, we can serve a large customer base in a way that a lot of larger companies can’t, we really focus in on customer service. And that’s really the pillar of who we are.
Curt Widhalm 02:03
One of the things that we like to start our episodes with is people who’ve made mistakes before and helping our audience not have to make those same mistakes. But what do a lot of therapists get wrong about liability insurance and malpractice insurance?
Rachel Warner 02:10
Yeah, that’s a great question. First of all, you need it. Always, get it – very soon now. And I think that most people know that oftentimes to be paneled with insurance companies, they require that or employer, employers require that or if you’re contracting with an agency, but sometimes people don’t realize that they need it, especially if they have their own private practice. You know, one thing that we we always make sure people know that it’s important to start in your student practicum, get insurance and keep it continuously throughout your practice – graduation, internship, while you’re provisionally licensed while you’re doing your hours. Even if you become a W-2 employee at an agency, a lot of people think that they don’t need their own independent insurance if it’s being provided by the company, which we always recommend that you do still have your own separate liability insurance. That way, you’re not relying solely on this other company’s insurance, you don’t know what claims are arising within that company, what’s eating away at the limits of coverage in that policy? It’s always good to have your own.
Curt Widhalm 03:29
How can you help our audience understand? You’re coming from the insurance company? Of course, you’re gonna say buy insurance. So can you help our audience understand a little bit more of how that individual policy still protects them? So that way, it’s not just relying on their agency.
Rachel Warner 03:49
Yeah, well, the agency’s policy will be primary for you. But let’s say heaven forbid, you know, that company has a policy, that you’re sharing the limits with the other staff in the company. And let’s say that policy has board complaint defense coverage in the amount of 35,000. And let’s say you had a few other employees at this company, have board complaints, and they’ve eaten through that limit. And then let’s say you have a board complaint, there may not be any coverage left on that policy. So your personal, your separate personal liability will kind of be a secondary coverage for you to tap into, should you need to.
Katie Vernoy 04:32
Well, I also heard when I was at an agency that there was a lot of concern that if something happened, and you got a board complaint and the agency fired you over that complaint, or if the agency kind of you know, this is where the whole toxic work environment kind of plays in that that the agency may choose not to defend you and you’re kind of stuck on your own. Is that Is there any truth to cuz that was a myth that I wanted to actually sort out.
Rachel Warner 05:03
Yeah, well, you know, I think that something like that can be very circumstantial. However, in and of itself, the way that a policy works is that at least an occurrence-based policy, we can talk later about the different kinds of policies that there are. But within a current-space policy is long as you have coverage in place, at the time you’re rendering services, the coverage applies. So if an employer fires, you, in a sense, denies you access to the policy that you were insured under, I’m not sure they can do that. I don’t I can’t speak, I mean, I think there’s some employment practice issues involved in that specific scenario. But even if you were fired, or even if you leave a position, and maybe five years later, a claim arises from a time you were insured under that policy, and it was for a client that you saw during that time, you were insured, the coverage still applies.
Katie Vernoy 06:10
So there’s some relief there. But But the point that you made, I hadn’t heard, which is, if the policy has kind of gone through its limits, you still may be stuck. And so really having your own coverage, even though you should be covered by your agency, is the safest thing that you can do.
Rachel Warner 06:30
It is, and also, something that we we see a lot is people letting their policies lapse, you know, and then, you know, having a gap in coverage, applying for policies later. And there’s a lot of reasons for that. Sometimes people forget to renew, or they stop working for a time or, you know, various reasons, we always recommend keeping continuous coverage, don’t let, don’t let those gaps in coverage happen. I can’t tell you how often, we see claims come through. And it just so happens that maybe they were providing services, they maybe didn’t realize their policy had lapsed, or they didn’t think they needed it. And the dates of treatment fall in that window of time that they weren’t insured. And it all goes back to those dates of treatment. So just because you have a policy in place today; If it was for, you know, incident or a patient from a year ago, and maybe you had a gap in coverage at that time there wouldn’t be covered.
Katie Vernoy 07:34
So there’s the gaps. But there’s also the importance of continuous coverage. Why is it not just kind of the ability to make sure you’re always covered, but what are other benefits of continuous coverage?
Rachel Warner 07:45
You know, I we hear a lot from people going through the credentialing process, whether that’s with CAQH or with insurance panels. And you typically you have to upload your proof of coverage provide your proof of coverage, sometimes when you have numerous different policy numbers, because you’ve lapsed and bought a new one lapse and bought a new one that can cause just administratively some complication and frustration for the provider themselves. Sometimes it’ll be denied by CAQH or if they, you know, slightly changed their name in between policies or something like that. It just, I think reflects better on the provider and it helps them administratively to keep up with that credentialing if they’ve had one policy in place. Over the years.
Curt Widhalm 08:35
We’re talking about, you know, some of these incidents that might come up or some of these complaints, what are some of the common claims or concerns that therapists might be using their malpractice liability insurance for?
Rachel Warner 08:48
You know, I’d say the most common, I won’t call it a claim, let’s call it incident or incidents, is people having subpoenas, depositions, request for records, which those aren’t necessary claims, per se, but there’s something that you typically would have coverage for under a liability policy. So oftentimes, that’s something that people don’t know when they’ve been subpoenaed or they’ve been deposed. You can be assigned an attorney under your policy, there’s typically a sub limit of coverage under the policy to give you an attorney, to help you with responding to that subpoena or deposition in a way that helps you avoid liability. So it’s definitely in your best interest to take advantage of that coverage. Sometimes, people just don’t realize they have that.
Katie Vernoy 09:39
I was just gonna say I’ve actually used that, I was able to get some feedback because there was a there was a records request that was a little bit interesting. There was stuff in the record that I did not think my client wanted to release and I was able to have the conversation about how do I protect myself? How do I even document my conversations with the attorney I mean, the attorney, and I have CPH, so that was who I use, but like I was able to have that conversation, and it’s such a relief to be able to have that that available to you.
Rachel Warner 10:13
Yeah, that’s a huge concern for people. In terms of actual complaints, I can kind of give you a few examples. Some of the top board complaints that we see are lawsuits, sometimes both occurring around the same scenario, are practicing outside the scope of licensure, negligent supervision. So this is something that we might see in a group, in a company, where, you know, I can think of an example where we had owner, we had employee – employee had an ongoing sexual relationship with a client, the spouse of that client came back and filed a board complaint and a lawsuit naming both the employer, the owner of the company, the employee themselves, and the company name as a legal entity, which can be sued. And the allegation was negligent supervision. And the way that that kind of played out was, there was, you know, obviously, the board complaint coverage kicked in, which the owner could tap into, as well as the lawsuit coverage for damages. The employee, however, because they admitted the sexual relationship, did not have any coverage under that policy, but the employer and the company name were covered, you know, kind of vicariously for that employees actions, and I think there was a settlement of around 100k. For that, that particular claim. We also see, you know, on that note, boundary and dual relationship issues is pretty common. various issues result revolving around custody conflicts, this is something that comes up a lot. I can think of one where we had, you know, a noncustodial, parent of a minor client that wasn’t happy with the recommendation of the therapist and filed a board complaint alleging unprofessional conduct, failure to disclose information. And that’s a situation to where the the board complaint coverage would kick in. That particular scenario ended up being dismissed, that the therapist didn’t have any wrongdoing. But that is a common complaint that we see.
Curt Widhalm 12:40
One of the things that I hear a lot from community from sitting on ethics boards and stuff is those situations that you just described, where there is a complaint, and the therapist has found no wrongdoing, or it’s a meritless claim. There’s always this fear of Okay, now, I have to check that ominous box on my application of have you ever had a board or an ethics committee investigation into you? How does how does a malpractice insurance company look at those situations? And does that affect premiums going forward?
Rachel Warner 13:13
Specifically, if there was a board complaint that was dismissed? You know, with no, you know, it was unfounded? You really don’t have anything to worry about with that. If you’re applying for the first time with a malpractice insurance agency, they’ll ask that question. You know, have you had any board complaints? You would answer yes to that. But typically, when you provide a copy of that dismissal letter, which that’s what we would request, it’s fine. It doesn’t impact your rate. It doesn’t, you know, go against you, per se. And then look into the future every year when you renew your policy. The application question is probably the renewal question is probably revised to say in the last 12 months, have you encountered a board complaint or a lawsuit or anything, so that you’re not having to report that year after year after year, as long as you’ve reported it? Initially, and it was dismissed?
Katie Vernoy 14:12
You were telling us before we got on, you’ve been in the CPH for like 10 years. So this is this is something that you’ve been out for a long time? Do you find that there’s more founded complaints or unfounded complaints that people are using their insurance for?
Rachel Warner 14:30
I think, and obviously this is this is very general answer. I would say. Usually, they’re unfounded. But it’s very case by case. You know, it depends on a lot of circumstantial stuff. But yeah, I mean, often we’re seeing these be dismissed.
Katie Vernoy 14:46
So there’s a lot of people who are using their liability insurance to protect them from the types of things where there’s an upset client that the you know, like what Curt was talking about, that the not founded Yeah, so that’s a huge benefit. So, liability insurance is not just for folks who are trying to skirt the law, like this is for the rest of us, who are just trying to protect ourselves.
Rachel Warner 15:12
Yeah, even if you have that unfounded board complaint, you know, you’re still going to have some defense costs paid out on that. So that one I talked to you about previously with the non custodial parent, and there was still about seven grand paid out in defense. So that attorney is helping you respond to the board with that investigation. So you’re still going to accumulate some costs there, even if it’s unfounded,
Curt Widhalm 15:37
I want to step out because I know CPH, and I’m a CPH customer as well, that you offer other kinds of insurance as well. And kind of looking for those people who are the private practice group owners. What other kinds of insurance do you recommend that practitioners get?
Rachel Warner 15:57
Yeah, there’s a few things to consider there. One thing that we always want to make sure people are aware of is that if you are in private practice, and you do have an LLC, or a PLLC, or corporation and some kind of stablished, you want to insure that entity? That’s a big question that we get, and where people will say, well, it’s just me, that’s, that’s true. However, you can be sued, and that corporate name can be sued. So you want to insure both even if you’re the only employee, quote, unquote, of that LLC, you should ensure both. Some other things that that can be offered are commercial general liability. So this is good. If you’re leasing a space, oftentimes, landlords will require this coverage of you, it basically gives you what’s called slip and fall coverage. So somebody comes to your office, it doesn’t necessarily have to be even a client, it could be the mailman, it could be a parent of a client in the waiting room that somehow gets injured, they tripped over a rug, they break their leg, they sue you. Some people get confused by that. So they will doesn’t the landlord, you know, cover that the right way to think about that type of coverages, you’re not necessarily covering a physical space, you’re covering a person at a physical space. So the landlord’s General Liability Insurance protects them, if they’re sued, they’re probably not going to have you listed as an insured under their general liability policy. So you want to have your own if you’re sued. And typically people will throw as wide of a net as they can. So they’ll probably sue the landlord, they’ll sue you, they’ll sue the maintenance guy, you know. So you have coverage for that. Business, personal property coverage, I would say this is a less common need, but we certainly do see it a lot. And this is for, you know, protection for the contents of your office, on your computer, your fax machine. Oh, the other thing I wanted to mention about the general liability that includes is fire and water legal liability. So this is if you get sued by the landlord, for instance, for causing damage to the property, you have a toaster in your office that causes a fire, you would have coverage for a lawsuit in that scenario. Another kind of hot coverage right now is cyber liability. And this is becoming very prominent in the space and something that we CPH provides. And this will protect you for breach, a cyber breach of your electronic devices where your clients personal health information may be compromised or other information. So it would protect you against a claim around that and also provide you assistance with you know, costs you may incur to notify clients. You know, we just had a claim where, you know, someone had to spend almost two grand in notification expenses, or that was covered under her cyber liability because she had that coverage. It’ll help you, you know, cost to restore the security of your devices and determine how it happened. Things like that.
Katie Vernoy 19:14
The cyber liability, if I have an electronic health record that is theoretically protecting all of my protected health information. What is the need for me to have cyber liability?
Rachel Warner 19:30
Again, that just would really determine I think it would, how it happened, why it happened? I guess if you’re asking like who would be responsible for that? It could potentially be both parties.
Katie Vernoy 19:43
I guess the the more specific question is like is this similar to like the general liability in an office whereas if my electronic health records breached, could my clients sue me as well? (Rachel Warner: Yeah, they could. Yeah, they could.) Even though, I don’t have I don’t have ownership of that protective thing I’ve delegated that and paid for it, but my clients still may sue me. And there might be costs incurred. Is that what I’m understanding?
Rachel Warner 20:10
Absolutely, yeah. And I don’t know, what kind of insurance that third party has and if they extend that coverage to you, you know, as a subscriber for things like notification expense.
Curt Widhalm 20:26
One of the questions a lot of people have is they they start their academic careers in usually a very scary and anxiety filled slide and ethics class, that’s all just kind of like reduce your liability, reduce your liability? How common are claims against behavioral health professionals in in kind of the grand scheme of things?
Rachel Warner 20:49
In the grand scheme of things, they’re fairly low. I would say, you know, certainly they happen. Sometimes when they do happen, they can be, they can be extreme, of course, it’s something that, you know, you hope is never going to happen. And even something that, you know, people will say, you know, I don’t think will ever happen, generally speaking, is not like we’re getting completely bombarded with claims left and right. I think that, especially if you have a good partner or a good liability partner, and they help you to avoid liability by providing resources to you, like avoiding liability bullet, you know, we have a bulletin if you have a helpline where you can talk to an attorney, being a member of a professional association, I think, also helps mitigate those types of situations where they’re providing tons of resources to you.
Curt Widhalm 21:48
And this is especially compared to like one of my friends from long ago as a surgeon that his malpractice insurance is like sky high compared to what we face in our profession. So, yeah, just kind of, we tend to, especially when we follow those, those nice tips that we get, Richard last week. Yeah. Yeah. And I use them for teaching a lot of time. We’ve even talked about a couple of them here on the podcast before. So definitely, definitely a good resource there.
Katie Vernoy 22:24
What would you say are the best ways that a therapist who’s starting out can avoid liability? Obviously, they need to get make sure they have liability insurance, but are there things that you would recommend that they put in place to just really kind of start off on the right foot?
Rachel Warner 22:42
Like I said, just now, I think that accessing the resources available to therapists, is, is really important. being members of professional associations, I can’t speak highly enough of that. They they provide, you CEUs, education, they’re advocating for the space, they have attorneys on staff, usually to consult with, I think that that’s, that’s really valuable to have that community, you know, certainly, you know, having a network of colleagues, supervisors, I think, having a like, as you mentioned, some sort of third party, you know, private practice administrator authority, I think that that’s really important to help people, you know, kind of logistically work through a private practice. And, as you said, having liability insurance. Certainly want to do. Yes. And, you know, I can’t speak so much to specifics as far as waivers and things like that go. But you know, we do get those questions. If we give samples for things like that, we don’t, there’s so much out there, that’s very state specific. So whether that’s if you can get resources like that from a professional association, or even if you contact a local attorney, just kind of independently and help them help you draft those types of things. I think it’s good to
Curt Widhalm 24:23
Where can people find out about all of the offerings of CPH and more about everything that you do?
Rachel Warner 24:32
Yeah, you can certainly visit our website CPHinsurance.com we have FAQ’s on there, there is a Contact Us page where you can send us your questions. And most importantly, you can call us. We have no phone menus. a live person answers the phone and we are certainly there to help you 830 to 5:00 is central time Monday through Friday? And can answer any questions that you have
Curt Widhalm 25:06
A lot of their resources over CPH, the some of these blogs and stuff that I mentioned are available, whether you’re a CPH customer or not, and one of the things that I really appreciate is that it does get into the nitty gritty of the details, I might be one of the only people who really cares about this. But when it does, coming to looking at all of the experience of, of CPH, in working in this space of being able to say, here’s a lot of things to consider when making some of these decisions for your practice. Whether it be advertising yourself, whether it be how you go about documenting record, keeping it a lot of the aspects that may be sit in the distant background of reducing the liability for your practice, those are great resources over on the page over there.
Rachel Warner 25:58
Yeah, and you can you can search by keywords, they’re all organized by topic as well. So that’s, that’s a wonderful resource.
Katie Vernoy 26:08
And we’ll put all of that information on our show notes. I really appreciate what you guys do over at CPH and Associates, I think it’s, it’s something where, knowing that I have that at my back, and I can, you know, as long as I’m practicing legally and ethically, I will be, you know, taken care of I think it’s very helpful. And I do know that there’s a big fear someone has when they’re calling you and it sounds like you guys have, you know, a lot of experience and helping people out. Any any final words or advice for for our listeners.
Rachel Warner 26:43
Last thing that I might want to mention and this is just kind of unique to the phase of life that we’re all in right now with this pandemic, with COVID is the number one question that we’ve gotten since March is you cover telehealth and obviously we’ve seen a huge shift in the space to telehealth and, you know, speaking for CPH I will say that, yes, we do cover telehealth, there’s nothing special you need to add to your policy. There’s no right or extra money you have to spend. The policy in and of itself will cover you for telehealth services, as long as you’re providing services legally within the scope of any state’s laws. So we recommend contacting if you have any questions about that you’re not sure if I live in California, can I provide telehealth services to someone in Wisconsin? Call the board in both states, confirm, as long as you get the green light there. The policy covers that.
Curt Widhalm 27:43
So just pointing out malpractice insurance is not a get out of jail free card. You still have to practice legally you still have to do it ethically do all the right things. It’s not just like you know, the the Avengers coming in and saving. Oh, Rachel, thank you very much for sharing your time with us today and we’ll like Katie said put your contact information over at CPH and associates in our show notes. You can find those at MTSGpodcast.com. And until next time. I’m Curt Widhalm with Katie Vernoy and Rachel Warner’s
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