Instructions for Kaiser Documentation Project
What we are doing
- Accurately documenting in Kaiser patient charts when Kaiser clinicians are NOT able to schedule initial and/or follow-up individual/family/group psychotherapy appointments at clinically appropriate times and advocating for treatment to be provided as prescribed and medically necessary.
- Empowering patients with resources to exercise their legal rights to timely and clinically appropriate care.
- Providers who do not use Kaiser charting templates containing treatment planning language will be documenting other patient care concerns by filing an Objection To Assignment (OTA) form when given an assignment that is unsafe or violates the law or our contracts.
Below are the steps to take if you clinically assess a patient to require immediate and/or ongoing, structured services that cannot be offered at Kaiser in the prescribed time frame:
- Inform the patient of the next (and subsequent) appointment availability. If availability is beyond the prescribed timeframe for the patient’s condition, use the sample script below to inform them of this discrepancy. Inform the patient of their right to file complaints with Member Services and/or the DMHC. This can include referring them to nuhw.org/dmhc-complaint.
- Appropriately document in the chart if a patient cannot be seen in the prescribed timeframe(s) by adding the free text below to the treatment plan section of the template (customized to each patient).
- Escalate the chart to your manager (through sending them the chart, a secure message, or a daily compiled list of patients), informing them that an appointment and/or series of appointments are not available within the prescribed timeframe (including the appropriate session interval) and requesting immediate out of network accommodations**.
- In urgent circumstances, if a delay in prescribed care and following the standard (30-day) internal Kaiser complaint process could seriously jeopardize a patient’s life, health, ability to regain functioning, and/or cause severe pain, rather than simply informing patients of their right to file a complaint with Member Services, you may instead submit an expedited grievance to Member Services on their behalf.
** Out-of-network accommodation means services at any level of care, from outpatient to inpatient, provided by a non-Kaiser provider or facility in the community that Kaiser may be required to fund when it cannot meet timely and geographic access standards set by law. Under SB855, which amended Cal. Health & Safety Code § 1374.72(d), “If services for the medically necessary treatment of a mental health or substance use disorder are not available in network within the geographic and timely access standards set by law or regulation, the health care service plan shall arrange coverage to ensure the delivery of medically necessary out-of-network services and any medically necessary followup services that, to the maximum extent possible, meet those geographic and timely access standards. As used in this subdivision, to “arrange coverage to ensure the delivery of medically necessary out-of-network services” includes, but is not limited to, providing services to secure medically necessary out-of-network options that are available to the enrollee within geographic and timely access standards. The enrollee shall pay no more than the same cost sharing that the enrollee would pay for the same covered services received from an in-network provider.”
When to follow this process
If you believe that a patient could experience any detrimental or adverse impacts from the delay in care, you are encouraged to follow this process. This includes, but is not limited to, any urgent clinical circumstance when treatment delays could: (1) seriously jeopardize (a) the life or health of patients or (b) the ability of patients to regain maximum function or (2) subject patients to severe pain that cannot be adequately managed without the prescribed care.
If you do not believe a patient is likely to experience any adverse impact if they wait until the next available appointment and/or series of appointments, then do not follow this process. Simply book the patient for the next available appointment and/or supply an external provider referral, as appropriate and available.
Step 1: Sample script for informing patients of discrepancy and their rights
Step 2: Free text to add to the patient chart
This sample language has been drafted in consultation with Meiram Bendat, JD, Ph.D., the nation’s leading mental health parity lawyer, who helped author SB 855 after winning a class action lawsuit against United Behavioral Health. This language would be added directly as free text to the Treatment Plan section. The highlighted fields are to be customized for each patient.
In my clinical judgment, the patient requires no less than once/twice weekly/biweekly, 45 to 90-minute, individual/family/group psychotherapy sessions over the course of at least 6-12 months. Given the patient’s condition, psychotherapy at the recommended dose, frequency, and duration cannot be delayed without an adverse clinical impact, including a risk [to life, health, ability to regain maximum function, or of severe pain]. However, recurring psychotherapy appointments at the prescribed dose, frequency, and duration are unavailable at Kaiser. (Specify if the patient requires in-person appointments.) On enter date, I escalated this matter to my supervisor, state name, Member Services, and requested immediate out-of-network accommodations—not a generic provider list—for the patient. I also provided the patient with contact information for the DMHC Help Center.
Step 3: What to say and write to your manager
It is important to escalate each chart to your manager. This demonstrates, legally and ethically, that you have made an effort to remedy the lack of access. You can do this by sending them the patient chart, a secure message, message encounter, or a daily compiled list of patients.
Sample message to manager:
I have determined that this patient should be seen for [no less than once/twice weekly/biweekly, 45 to 90-minute, individual/family/group psychotherapy sessions over the course of at least 6-12 months]. Due to the patient’s condition, treatment at the recommended dose, frequency, and duration cannot be delayed without an adverse clinical impact, including a risk [to life, health, ability to regain maximum function, or of severe pain]. Given that immediate and recurring psychotherapy appointments at the prescribed dose, frequency, and duration are currently unavailable within our department at Kaiser, I am requesting authorization for immediate out-of-network accommodations with an identified, experienced provider that has current availability to treat this patient.
Step 4: Filing complaints with Member Services
In addition to informing your manager of all appointments that cannot be timely scheduled…
In non-urgent circumstances, patients who could experience detrimental or adverse impacts from delayed care, but who could endure a 30-day internal complaint process without serious jeopardy to their life, health, ability to regain maximum function, and/or without experiencing severe pain, should be informed of their right to file a complaint with Kaiser’s Member Services. nuhw.org/dmhc-complaint provides useful information to support them in this process.
In urgent cases, if a delay in care and following the standard complaint process could seriously jeopardize a patient’s life, health, ability to regain maximum function, and/or cause severe pain, rather than simply informing your patient of their right to file a complaint with Member Services, you are permitted to act as their authorized representative and submit an expedited grievance to Member Services on their behalf.
Refer to nuhw.org/dmhc-complaint for sample language to use on expedited complaint forms.
Frequently Asked Questions
- Why are we doing this?
- Why should patients file complaints directly with the DMHC?
- What is the legal risk? Can I be disciplined?
- Why is it important to add free text?
- Will this create problems with my manager?
- What if my manager wants me to forcebook the patient into non-appointment time?
- What if my manager disagrees with my prescription?
- What is the difference between a “single case agreement,” “out of network approval,” and “external provider referral”?
- How is this different from the previous treatment template recommendation language that was developed in past years?
- How do I know what treatment dose, frequency, and duration to prescribe? What are the “standards of care” for different mental health conditions?
- What changes resulted from the passage of SB855?
Why are we doing this?
Kaiser has gotten away with understaffing and under-resourcing behavioral health care by structuring its clinical charting templates to make it seem that Kaiser clinicians are scheduling treatment at intensities and intervals based on clinical need rather than therapist availability.
The misleading data generated by these templates have enabled Kaiser to claim that more than 90 percent of patients are scheduled for appointments within the timeframes set by their treatment plans. As mental health professionals, we have ethical and legal duties to establish and implement the most appropriate treatment plans for the clinical needs of our patients. But Kaiser’s under-resourced behavioral health system makes this almost impossible and subjects us to record-keeping practices that undermine our integrity and responsibility to our patients.
Our goal is to record the truth so our patients can be properly served and so Kaiser can’t keep getting away with misleading its members, the public, and oversight agencies about the care it actually provides. By accurately documenting when patients cannot be treated within appropriate timeframes, we will:
- Fulfill our ethical and legal responsibilities as mental health providers to accurately document clinical prescriptions, to advocate for our patients, and to take reasonable steps to resolve conflicts created by the demands of our employers.
- Incentivize Kaiser to recruit clinical staff to meet access to care standards.
- Incentivize Kaiser to improve working conditions in order to retain clinical staff necessary to meet access to care standards.
- Provide oversight agencies the evidence needed to enforce access to care standards and protect patients’ rights.
DMHC regulations already require Kaiser to provide behavioral health services in a “timely manner appropriate for the nature of patients’ conditions consistent with good professional practice.” 28 C.C.R. § 1300.67.2.2(c)(1). SB 221 will become law next year and require health plans like Kaiser to provide initial and return appointments based on a “clinical appropriateness standard” and in no event later than 10 business days, unless the treating clinician determines that a longer wait would not be detrimental. We know that Kaiser’s templates are designed to create the impression that clinicians do not believe extended waits for prescribed care are detrimental to our patients. We have a duty to our patients and each other to ensure timely access to clinically appropriate care under existing regulations and SB 221. That can only happen if we accurately document when patients are not able to be seen at clinically-appropriate intensities and intervals.
Why should patients file complaints directly with the DMHC?
While we have submitted many whistleblower complaints to the DMHC, the agency is not legally obligated to respond to them. As a consumer protection agency, the DMHC is vested with a responsibility to respond to patient complaints. Normally, prior to filing complaints with the DMHC, patients must first submit to a potentially lengthy (up to 30-day) internal grievance procedure within Kaiser. An exception to this general requirement occurs in urgent cases that could: (1) seriously jeopardize the life or health of the patient or (2) the ability of the patient to regain maximum function or (3) subject the patient to severe pain that cannot be adequately managed without the prescribed care.
Documentation in a patient’s chart that an extended wait will be detrimental for any of the above reasons andthat Kaiser management has been expeditiously alerted by the therapist should facilitate patients’ ability to bypass Kaiser’s internal grievance process so as to immediately file urgent complaints with the DMHC. The DMHC will be required to promptly respond and will likely require Kaiser to produce patients’ medical charts (including therapist notes about the urgency of unavailable care) during its investigations.
This complaint should facilitate timely access to care, including the potential for the DMHC to require Kaiser to authorize out of network accommodations to meet its legal obligations to patients.
What is the legal risk? Can I be disciplined?
It has been repeatedly confirmed and documented by Kaiser Permanente leadership that clinicians are allowed to add free text to the charting template, including to the treatment plan section.
Although we are unable to predict what Kaiser may attempt to do in order to thwart our patient advocacy efforts, we believe this campaign to be soundly supported by the contractual, legal, and ethics standards applicable to licensed mental health professionals and patients’ rights. Apart from facing legal risks for any unlawful acts of retaliation, Kaiser will also have to contend with the practical consequences of retaliating against a mass campaign throughout California and risk even further undermining access to its under-resourced behavioral health programs.
The Principles of Responsibility: Kaiser Permanente’s Code of Conduct (“Principles”) appropriately acknowledges the importance of honesty and vigilance toward patients and underscores that:
Physicians, dentists, and employees must document and code (where applicable) patient care provided in an accurate, complete, and timely manner. Claims and supporting medical record documentation must comply with all applicable coding requirements. This documentation is the basis for regulatory reporting and many other activities, including billing, quality reporting, and financial forecasting, so it is very important that it is accurate. (Principle 3.2.)
The Principles further highlight that Kaiser may not retaliate against therapists who report access
impediments to timely care: “We never retaliate against those who, in good faith, report suspected violations of laws, accreditation standards, and Kaiser Permanente policies.” (Principle 1.4.5.)
If your manager does respond inappropriately or in any kind of intimidating or retaliatory manner to these new documentation practices, you should follow this protocol:
- Don’t panic – your position is grounded in law and professional standards.
- You have support – let your NUHW steward and/or organizer know what is happening ASAP but remember to NOT disclose any protected health information (“PHI”) when communicating with NUHW stewards and staff. (For a comprehensive list of what constitutes PHI, please see https://www.hhs.gov/hipaa/for-professionals/privacy/special-topics/de-identification/)
- Document the incident in writing – email (or respond) to your manager letting them know your actions are appropriate and protected. Make sure to CC your steward and/or organizer without any PHI.
- Reject intimidation – NUHW stands behind all clinicians who are fulfilling their ethical obligations by accurately documenting patient needs. We will aggressively push back on any intimidation efforts locally at the highest level of KP management and through litigation.
- The more clinicians who participate, the harder it will be for Kaiser to try to intimidate any single clinician to stop accurately charting the needs of our patients.
Just remember that Kaiser does not want to be held accountable. If what we are doing didn’t matter, they wouldn’t push back. What we are doing is powerful and important. While managers may try to intimidate us, we have clear legal and ethical grounds to take these actions.
Why is it important to add free text?
Entering the free text will provide patients the documentation they need to successfully pursue complaints with Member Services and/or the DMHC. Without the free text, there will not be anything in the template that supports a patient’s claim that they could not access timely care.
We know that Kaiser has structured its templates such that the data it is capturing and reporting to the DMHC conflates recommended and available timeframes. When the DMHC audits Kaiser, it may not review free text. However, through the DMHC complaint process, a patient can request their full medical record and make this available to the DMHC. The DMHC will then be able to see the language that a clinician has added, which corroborates the lack of access to timely care.
Will this create problems with my manager?
Some of our managers will react negatively to us bringing up these issues, but they have the same legal and ethical obligations as us, and many of them are also invested in finding ways for patients to be seen in clinically appropriate timeframes.
We encourage you and your team to reach out ahead of time to your manager to alert them, in the spirit of collaboration, that your clinical responsibility requires you to more accurately document your treatment recommendations and that you will be alerting them when more frequent care is warranted than what may be available.
What if my manager wants me to forcebook the patient into non-appointment time?
Access problems and inappropriate wait times are a systemic issue at Kaiser; they cannot be solved by individual clinicians cramming their schedules to even fuller and less sustainable levels. If your manager tries to coerce you into forcebooking patients into your indirect patient management time, meeting time, lunch time, etc, you have a right to decline these requests and should clearly document that your current appointment availability does not allow for you to see forcebooked patients at an intensity and/or frequency that is consistent with sound clinical judgment.
Make it clear that you are open to ongoing dialogue on how to reduce wait times for secondary assessments and/or return appointments without compromising needed indirect patient care time, meeting time, or group treatment. You should also reiterate that patients can be serviced by out-of-network accommodations when there is no room in your schedule and no individual/group appointment availability within KP.
What if my manager disagrees with my prescription?
You are the clinician who has met with and evaluated the patient. If the manager says that a patient doesn’t need the frequency, duration, or type of care that you are prescribing (i.e. if they try to push for group instead of individual treatment or that a longer wait will not have an adverse impact), here are two possible responses:
- Clearly document in the chart that your manager [state their name] is recommending less frequent care than you have prescribed, or that they are making a different treatment recommendation and document their recommendation in addition to yours. You can clarify that they have not met or assessed the patient directly and are basing their recommendation on [case conference/consultation/review of your documentation];
- Simply state that this is your prescription, and that while you appreciate their recommendation and have taken it into consideration, as the provider who has evaluated the patient, you will leave your prescription in place. If the manager wants to make a different recommendation, then they can see the patient first for an assessment.
What is the difference between a “single case agreement,” “out of network approval,” and “external provider referral”?
“Out-of-network accommodation” or “single case agreement” refers to services at any level of care, from outpatient to inpatient, provided by a non-Kaiser provider or facility that the patient can find any therapist in the community that Kaiser may be required to fund when it cannot meet timely and geographic access standards set by law. Under SB855, which amended Cal. Health & Safety Code § 1374.72(d), “If services for the medically necessary treatment of a mental health or substance use disorder are not available in network within the geographic and timely access standards set by law or regulation, the health care service plan shall arrange coverage to ensure the delivery of medically necessary out-of-network services and any medically necessary followup services that, to the maximum extent possible, meet those geographic and timely access standards. As used in this subdivision, to “arrange coverage to ensure the delivery of medically necessary out-of-network services” includes, but is not limited to, providing services to secure medically necessary out-of-network options that are available to the enrollee within geographic and timely access standards. The enrollee shall pay no more than the same cost sharing that the enrollee would pay for the same covered services received from an in-network provider.”
“External provider referral” is when a patient is referred to a therapist already contracted through Kaiser (i.e. KP Direct, AbleTo, Beacon, etc).
How is this different from the previous treatment template recommendation language that was developed in past years?
Our previous action centered solely on accurately documenting in the patient’s chart the need for earlier appointments than otherwise available. The current action goes one step further and empowers patients to file individual complaints with the DMHC and to use the information we have accurately documented in their charts to receive timely access to clinically appropriate care.
The previous action had no lasting impact on Kaiser, for two reasons:
- The DMHC only infrequently audits health plans and simply entering accurate information in patients’ charts does not spur the DMHC to action; and
- Kaiser figured out ways to structure data entries so as to evade detection of timely access deficiencies when audited by the DMHC.
Our current action will compel the DMHC to take note and intervene since it is required by law to respond to complaints from patients. The DMHC should have immediate access to the patient’s entire chart, not just portions that Kaiser wants the DMHC to see. If our documentation is accurate, patients will get the timely care they need, Kaiser will have to pay for their ongoing care, and we will have leverage to force Kaiser to hire much needed staff to maintain network adequacy. Think of the impact: if we do this action for just 3% of our patients, it would result in ove 500 complaints to the DMHC in a week.
How do I know what treatment dose, frequency, and duration to prescribe? What are the “standards of care” for different mental health conditions?
SB855 requires Kaiser to provide “medically necessary treatment of a mental health or substance use disorder,” defined as “a service or product addressing the specific needs of that patient, for the purpose of preventing, diagnosing, or treating an illness, injury, condition, or its symptoms, including minimizing the progression of that illness, injury, condition, or its symptoms, in a manner that is all of the following:
(i) In accordance with the generally accepted standards of mental health and substance use disorder care.
(ii) Clinically appropriate in terms of type, frequency, extent, site, and duration.
(iii) Not primarily for the economic benefit of the health care service plan and subscribers or for the convenience of the patient, treating physician, or other health care provider.
Nonetheless, SB855 does not expressly establish the appropriate treatment dose, frequency, and duration for psychotherapy. Rather, frequency, dose, and duration are established by “generally accepted standards of mental health and substance use disorder care,” which account for risk of harm, functional impairments, comorbidities, resilience, and other psychosocial stressors and variables. Evidence-based practices and professional standards and guidelines are shaped by theoretical orientation and treatment setting. This is the reason why patients must be evaluated by a qualified mental health professional in order to determine the appropriate course of treatment.
For example, the Level of Care Utilization System (“LOCUS”) instructs that “low intensity” community-based treatment programming (such as outpatient individual psychotherapy) “should be available up to two hours per week, but usually not less than one hour every four weeks.”
In reviewing the American Psychological Association Clinical Practice Guidelines and the APA Division 12’s Evidence-Based Practices, we have been unable to identify a single instance in which clinical guidelines, best practices, or clinical studies recommend the delivery of psychotherapy consistent with the session frequency (aka: cadence, dose) forced upon Kaiser’s clinicians and patients. With and without adjunct medication, or other interventions, nationally recognized clinical specialty associations (including APA and American Association for Child and Adolescent Psychiatry) most frequently reference treatment frequencies that range from twice weekly to biweekly individual sessions lasting 45-90 minutes, with a tapering to monthly treatment upon sufficient stabilization.
Cognitive behavioral therapy (CBT), which is one of the most well established short-term therapies for the treatment of depression, has a recommended frequency of two individual sessions a week in the beginning of therapy, per the treatment manual, and continued research has shown a strong and positive association between the number of sessions per week and the effect size of psychotherapy for adult depression. (citation) Alternatively, psychodynamic modalities support multiple individual sessions per week for extended durations, particularly for the treatment of complex conditions such as personality disorders, which are now covered under SB855.
As an additional example, for patients beginning a new course of antidepressant therapy, “the American Psychiatric Association recommends a vigorous schedule of monitoring during the acute phase of treatment for depression–at least weekly contacts in routine cases and multiple contacts per week in more complex cases. In an earlier set of guidelines, the Agency for Health Care Policy and Research recommended face-to-face visits every 10 to 14 days during the first 6 to 8 weeks of treatment for patients with less severe depression, and weekly visits in more severe cases… FDA guidelines fall roughly in the middle of this range–weekly face-to-face visits during the first month, tapering to monthly face-to-face visits by the third month.” (citation / citation)
What changes resulted from the passage of SB855?
- Covers all DSM-5 diagnoses, including those that require couples and family counseling
- Mandates coverage of treatment to maintain functioning or prevent deterioration.
- Health plans must provide out of network care if appropriate care is not available within their network.
- Requires coverage of medically necessary mental health care throughout the treatment continuum, including outpatient, intensive outpatient, residential, and inpatient services and prohibits limiting coverage to short-term or acute treatment.
- Defines “medically necessary” care as:
- In accordance with generally accepted standards.
- Clinically appropriate in terms of type, frequency, extent, site, and duration.
- Not primarily for the economic benefit of the health care service care plan or the convenience of the patient, physician, or other provider.
- Medical necessity determinations must be based on current generally accepted standards of mental health and substance use disorders.
- Valid, evidence-based sources establishing generally accepted standards of mental health and substance use disorder care include peer-reviewed scientific studies and medical literature, clinical practice guidelines, and recommendations of nonprofit health care professional associations.
- For level of care determinations, healthcare service plans may not apply different, additional, conflicting, or more restrictive criteria than the criteria and guidelines set forth by those nonprofit professional associations. These currently include LOCUS, CALOCUS, ECSII, and ASAM.
- Applying multidimensional assessments of patient needs when making determinations regarding the appropriate level of care. (Not just determining need for care based on an AOQ).
- Duration of treatment should be based upon an individual patient’s specific needs rather than arbitrarily defined time limits.
Objection to Assignment
You can fill out an Objection To Assignment (OTA) form when given an assignment that is unsafe or violates the law or our contracts.