Managing Disruptive Behavior by Patients and Physicians: A Responsibility of the Dialysis Facility Medical Director

Abstract

The Centers for Medicare & Medicaid Services’ Conditions for Coverage make the medical director of an ESRD facility responsible for all aspects of care, including high-quality health care delivery (e.g., safe, effective, timely, efficient, and patient centered). Because of the high-pressure environment of the dialysis facility, conflicts are common. Conflict frequently occurs when aberrant behaviors disrupt the dialysis facility. Patients, family members, friends, and, less commonly appreciated, nephrology clinicians (i.e., nephrologists and advanced care practitioners) may manifest disruptive behavior. Disruptive behavior in the dialysis facility impairs the ability to deliver high-quality care. Furthermore, disruptive behavior is the leading cause for involuntary discharge (IVD) or involuntary transfer (IVT) of a patient from a facility. IVD usually results in loss of continuity of care, increased emergency department visits, and increased unscheduled, acute dialysis treatments. A sufficient number of IVDs and IVTs also trigger an extensive review of the facility by the regional ESRD Networks, exposing the facility to possible Medicare-imposed sanctions. Medical directors must be equipped to recognize and correct disruptive behavior. Nephrology-based literature and tools exist to help dialysis facility medical directors successfully address and resolve disruptive behavior before medical directors must involuntarily discharge a patient or terminate an attending clinician.

Introduction

The Centers for Medicare and Medicaid Services (CMS) 2008 Conditions for Coverage (CfC) (1) expanded the role of the dialysis facility medical director. The Renal Physicians Association (RPA) (2) and the Forum of ESRD Networks (3) elucidated these changes in white papers. Before the CfC, many nephrologists were unclear about their precise responsibilities in the dialysis facility. The revised CfC specified and mandated medical director leadership and oversight responsibilities for everything that occurs in the facility (1,4). The medical director’s role includes establishing, maintaining, and implementing all procedures and policies, including daily staff conduct and educating all new staff. CMS, via the ESRD Networks and state agencies, monitors facilities to ensure that directors are adequately fulfilling their responsibilities. In addition, owners of dialysis facilities compensate the medical director to fulfill these responsibilities. Consequently, dialysis facility owners have the same expectations of medical directors as does CMS.

Conflict is inevitable within a dialysis facility because of the stressful environment. Dealing with patients with acute and chronic problems, within the same four walls, three times per week, 52 weeks per year can be very demanding. Within the practice of medicine, heavy workloads, increasing responsibilities, and financial insecurity add to the stress level. Disruptive behavior is a frequent cause of dialysis-related conflict. Disruptive behavior creates an environment that impedes the safe and effective delivery of the highest quality of care or disrupts the flow of operations within the facility (5). To meet their regulatory requirements, medical directors must learn to manage disruptive behavior. The authors recommend focusing on the aberrant behavior, not the individual manifesting the behavior. This focus minimizes defensive posturing and personality conflicts, while enhancing understanding and appropriate intervention (6).

The nephrology community is well aware of disruptive behavior manifested by patients (7). However, stakeholders are generally less aware of disruptive behavior manifested by nephrology clinicians. The general medical literature (5,8) addresses the disruptive physician. Nephrology can extrapolate from the general medical experience. The general medical literature associates disruptive behavior with medical errors, poor patient satisfaction, staff turnover, adverse outcomes, and excessive costs (5,9,10). Disruptive behavior, whether by a patient or nephrology clinician, creates an unsafe patient environment and impedes the delivery of high-quality care (11,12). Excellent resources are available to the nephrology clinician to help them resolve disruptive behavior (12–16).

Disruptive Behavior by Patients

The Decreasing Dialysis Patient-Provider Conflict project (DPC), a coalition of stakeholders and behavioral experts, addressed disruptive behavior in 2005 (12). The coalition selected several issues fundamental to understanding conflict and disruptive behavior in dialysis centers (Table 1). The group released a white paper analyzing the ethical, legal, and regulatory underpinnings of “entitlement,” involuntary discharge (IVD), medical abandonment, and nonadherence to medical advice (12). Patients and providers (7,12) often misunderstand the legal and regulatory meaning of “entitlement.” Many incorrectly assume the term means "entitled to dialysis treatment." Instead, "dialysis-related entitlement,” defined by statute and regulation, actually means providers are “entitled” to receive payment from the federal government for dialysis services provided to qualified beneficiaries. However, it is axiomatic that patients have the right to expect high-quality, safe, and ethical care from their dialysis providers, as codified in the CfC by CMS.

Table 1.

Examples of disruptive behavior in patients

Arriving late for scheduled appointments and signing off early
Failing to keep scheduled dialysis appointments
Nonadherence to treatment prescription particularly if it significantly effects others
Making false allegations against staff
Threatening language or actions
Refusing needle placement
Presenting for treatment with firearms

The concepts for understanding nonadherence to medical advice are as follows: (1) The patient has the right to refuse treatment (ethical principle of autonomy), and (2) the provider has no statutory authority to deny treatment to nonadherent patients. Nonadherence to medical advice is not a justifiable reason for IVD or involuntary transfer (IVT). For example, missed or shortened treatments are not necessarily cause for IVD or IVT. Rather, the DPC recommends that the interdisciplinary care team seek specific causes for this behavior, such as painful treatments, family illness, child or adult care schedule conflicts, work schedule conflict, travel problems, inadequate understanding of consequences, or inadequate understanding of the cultural context for the behavior. Specific causes should be addressed and resolved to everyone’s satisfaction. Other creative solutions exist for solving the problem of frequently missed dialysis treatments (17). Medical abandonment and IVD/IVT are discussed later in this paper.

The DPC developed categories of disruptive behaviors based on whom the behavior placed at risk: (1) risk to others, (2) risk to the facility, or (3) risk to self. These categories allow stratification by lowest to highest risk and provide a framework for determining the appropriate intervention, such that the “penalty fits the crime.” Using this taxonomy, DPC defined disruptive behavior: Written, verbal, or physical abuse (risk to others) were stratified as high risk, property damage or theft (risk to the facility) as intermediate risk, and nonadherence to medical advice (risk to self) as lowest risk. This approach led to the development of a DPC tool kit algorithm (Figure 1) (14). The Forums’ Medical Director Toolkit exemplifies the stratification (3).

Figure 1.

Algorithm for resolving disruptive behavior.

Interventions for Dealing with Disruptive Behavior Exhibited by Patients

Medical directors and dialysis administrators should be trained to analyze and diffuse disruptive behavior. They should also learn how to train other dialysis professionals to diffuse disruptive behavior and codify the training in written policies and written procedures for implementing those policies. An important first step in dealing with patient-generated disruptive behavior to exclude medical reasons for abnormal behavior, including drug and alcohol abuse, psychologic disorders (particularly depression [18]), adverse drug reactions, inadequate dialysis, metabolic abnormalities (such as hypercalcemia), subdural hematomas, or occult sepsis (7). Once medical or metabolic causes are excluded, the issue may be framed in a behavioral context.

Resolving behavioral conflicts requires a systematic approach. Each facility should have its own grievance process. The grievance process should be readily available, effective, and easy to use and should respect confidentiality. Having a sincere, effective “in-house” grievance process is one of the best ways to address conflict without requiring an ESRD Network formal grievance intervention. The DPC (Figure 1, Table 2) and RPA (13) have described additional systematic approaches to conflict resolution, including disruptive behavior or strong negative emotions. Sufficient time and a quiet environment must be allotted to elucidate the perceptions of those involved in a nonjudgmental way called active or effective listening. Active listening demonstrates the listener’s empathy and an honest desire to understand the behavior through the eyes of the patient. The method excludes agreeing or disagreeing with the behavior and is not a debate. Focus is kept on the behavior, avoiding “personality conflicts.” Once the dialysis professional has demonstrated empathy toward and understanding of the patient’s perspective, good-faith negotiation toward a settlement can begin. As suggested in RPA’s guideline ("Shared Decision Making in the Initiation and Withdrawal from Dialysis"), if an agreement cannot be reached, then a “timed trial” can be negotiated (13). The trial is conducted for an agreed-upon time. Agreed-upon measures of the desired goals and outcomes of the trial are collected from both sides before and after the trial. Then the parties reassess whether the trial achieved their desired goals. If the trial did not achieve the goals or outcomes, most people will be willing to consider the other side’s proposals. Wertheim et al. (19) have developed an approach to conflict resolution that may also be helpful in the dialysis facility setting but is beyond the scope of this discussion.

Table 2.

Decreasing CONFLICT

Create a calm environment

Open yourself to understanding others

Need a nonjudgmental approach

Focus on the issue

Look for solutions

Implement agreement

Continue to communicate

Take another look

In the past, dialysis facilities used behavioral contracts to enforce solutions to disruptive behavior. If this tool is a sincere effort to formalize an agreement beneficial to both sides and with consequences to both sides in the event of failure, then the tool may be helpful, at least providing a written record of a mutually agreed-upon solution. If, however, it is merely a prelude to an IVD or IVT, CMS and the ESRD Networks promptly discount the value of the contract, seeing it for what it really is: an attempt to protect the facility from any negative legal or regulatory consequences.

IVDs and IVTs increased by 13% from 2010 to 2011 (20), with an estimated increase of 11% from 2011 to 2012 (Dialysis Annual Report 2014, currently in draft form). Six of 18 ESRD Networks reported ≤20 IVDs from 2010 to 2011 (20). IVDs and IVTs are the least satisfactory resolutions for patient-manifested disruptive behavior because they compromise continuity of care and frequently increase morbidity and mortality. CMS and ESRD Networks carefully review the process that leads to every IVD or IVT. If any CfC requirements are omitted, the facility can expect more Network involvement and even financial sanctions.

The CfC regulations allow for only four reasons for IVD or IVT: (1) A patient fails to pay (e.g., keeping insurance payments intended for the facility); (2) the facility ceases to operate; (3) a transfer is necessary for the patient’s welfare because the facility can no longer meet the patient’s medical needs; and (4) the facility has reassessed the patient and determined that the patient’s behavior is so disruptive that the delivery of high-quality and safe care to the individual or the ability of the facility to operate effectively is seriously impaired. The important terms for the fourth reason are “reassessed” and “seriously impaired.” The facility must have documented repeated attempts to solve the problem before IVD or IVT. The threat to the facility must be significant and imminent, not merely hypothetical. IVD must be in complete accordance with CfC §494.180 (1). The regulations require the following: (1) notification of the ESRD Network, (2) completion of a comprehensive reassessment and revision of the plan of care intended to resolve the problem before IVD or IVT, (3) documentation that includes the ongoing problems, and the effect of the behavior on others and the facility, (4) documentation of the steps taken to resolve the conflict, and (5) documentation of the patient’s response to steps taken.

The facility must obtain written orders for IVD or IVT of the patient, signed by the attending physician and the medial director. The patient must be given at least 30 days’ notice of the impending IVD or IVT. A termination letter can be sent by certified mail to the patient. The facility (preferably the medical director) must contact other facilities to try to place the patient without trying to “blacklist" the patient. Although the facility should give the patient a list of facilities to contact, many believe the medical directors should contact other medical directors, requesting transfer of the patient. In this way, the “transferring” medical director can assure that reciprocation will be carefully and sincerely considered in the future. The facility should also transfer the patient’s medical records within 72 hours. The facility must notify the regional ESRD Network and the state agency.

There are two circumstances in which the dialysis facility must involuntarily discharge or transfer a patient. First, if the attending nephrology clinician refuses to provide care to the patient and the facility cannot find an adequate replacement, the facility must discharge or transfer the patient. A facility may not provide care to a patient without an attending clinician. If an attending clinician refuses to provide care, the clinician must avoid “medical abandonment” (as codified in tort law) by informing the patient he or she will no longer be providing care after a “reasonable” period and making a “reasonable” attempt to place the patient into another clinician’s care. The Court defines “reasonable” as what a “reasonable person” would do given the same set of circumstances. The second reason for expedited IVD is when the disruptive behavior results in a clear, serious, and imminent threat to the physical safety of others. In this case, the DPC and ESRD Networks recommend that the facility immediately notify law-enforcement authorities, who are equipped to safely remove the threatening patient from the facility.

Disruptive Behavior by Physicians

As previously noted, discussions regarding physician disruptive behavior seem lacking in the nephrology literature. However, the general medical literature examines this source of aberrant behavior (5,6,8,9,11) and associates it with medical errors, poor patient satisfaction, preventable negative patient outcomes, increased staff turnover, higher costs, and malpractice claims (10,21). Consequently, The Joint Commission (JC) and the American Medical Association (AMA) have developed several recommendations and interventions concerning physicians exhibiting disruptive behavior (15,16,22). The JC has created physician leadership standards, including a code of conduct defining disruptive behavior and a process for managing such behavior (22,23). The AMA has published "The Actions and Activities Reflective of Disruptive Behavior," provided in Table 3 (15,16). These actions and activities apply to nephrologists as well (see Table 4). The JC published a Sentinel Event Alert (21) recognizing disruptive behavior as a threat to the performance of the health care team and maintenance of a culture of safety (11,12).

Table 3.

Examples of disruptive behaviors in nephrologists

Condescending and abusive language	Lack of participation in interdisciplinary rounds
Not returning phone calls in a timely fashion	Noncompliance with patient visits
Not responding to medical director inquiries	Not fulfilling roles and responsibilities
Constantly refusing to follow established protocols	Refusing to participate in facility programs
The medical director is late for QAPI meetings	Cherry-picking patients
Physical abuse	Substance abuse and impairment
Fraudulent billing	Initiating dialysis inappropriately
Solicitation of patients	Bad-mouthing employees and facility
Repetitively not fulfilling attestation issues (e.g., signing of CMS 2728 attestation form )	Insulting, intimidating, or demeaning patients, family members, staff, colleagues or facility
Placing financial needs ahead of patients needs	Throwing objects/anger management

QAPI, Quality Assurance and Performance Improvement; CMS, Centers for Medicare & Medicaid Services.

Table 4.

Actions and activities reflective of disruptive behavior

Overt actions

Verbal outbursts and physical threats

Passive activities

Refusing to perform assigned tasks or following by laws

Quietly exhibiting uncooperative attitudes during routine activities

Refuses to fulfill roles and responsibilities or achieving efforts to maximize outcomes

Reluctance or refusal to answer questions or return phone calls or pages

Condescending language or voice intonation

Impatience with questions

Refusing to follow policies

Adapted from American Medical Association Code of Ethics, December 2000 (16).

^*Drawn from author’s experience and publications (4,5)

Published survey results from nondialysis health care employees note varying incidence and prevalence rates of professional disruptive behavior (24,25). An informal email survey of dialysis facility clinical managers in one author’s area suggests that physician disruptive behaviors, as listed in Table 3, are not rare. There are no data on dialysis practitioners. In the general medical community, one Midwestern hospital of 400 beds noted that they incurred a $1 million dollar loss due to physician disruptive behavior (i.e., medication errors and staffing turnover) (9,10,21). In another hospital, a poll of 840 physicians executives noted that 18.2% of the types of physician disruptive behavior described in Table 4 occur at least monthly (6). Although some survey participants opined that the behavior was a product of the work environment (e.g., fatigue, stress, and being overworked), none of these factors justifies physician disruptive behavior or mitigates the consequences.

Table 3 lists some examples of disruptive behaviors exhibited by nephrologists. Several behaviors can be combined under the heading of demeaning staff, colleagues, patients, or family members. Physicians who demean, ignore, or intimidate staff or patients implicitly discourage repeat contact from those patients and staff, probably resulting in decreased safety surveillance, fewer notifications of acute or chronic changes in health status, fewer opportunities for collaborative problem-solving, and increased nonadherence to medical advice. Some behaviors noted in Table 3 (e.g., not signing the CMS 2728 attestation form or refusing to participate in facility quality of care programs) place the facility at risk for charges of “fraud” or noncompliance with government regulations, either of which disrupts the facility's ability to provide a safe and high–quality of care environment. Other behaviors, such as physical abuse, impairment, and solicitations of patients, are more easily identified as disruptive.

Consequent to the untoward, sub rosa consequences of disruptive physician behavior, and the mandates of the CfC, medical directors must intervene when they encounter this behavior (11,12). A facility’s written policies, procedures, and credentialing by-laws should provide explicit directions for dealing with physician disruptive behavior by the medical director and the governing body. Unfortunately, physician disruptive behavior frequently goes unreported because of tolerance and indifference (23). In the authors’ experience, when dialysis staff or patients are subjected to abusive physician behavior, the staff and patients under-report the occurrences as a result of retaliation. At the facility level, the fear of retaliation often takes the form of threats that offending nephrologists will take “their patients” elsewhere. Although this has not been studied, we believe that physicians who habitually manifest disruptive behavior ultimately cause diminished patient quality outcomes, patient safety, and patient and staff satisfaction. Medical directors and dialysis providers must not yield to such threats, and, if they do, will share responsibility for the negative consequences.

Interventions for Disruptive Behavior in Physicians

The medical director is responsible for leading conflict resolution, particularly when it involves physician disruptive behavior. The governing body of the facility assures effective and timely implementation of facility policies and procedures. If a physician feels he or she has been unjustly accused of disruptive behavior, the physician should have easy access to the credentialing by-laws and a clear grievance and remediation process. If the medical director exhibits disruptive behavior (Table 3), the facility manager or nurse manager must engage supervisors and the governing body to resolve the issues. Many of the same interventions used to resolve disruptive behavior by patients can also be applied to disruptive behavior by physicians. Principles of resolving conflict noted above and in Table 2 and Figure 1 can be implemented, where applicable. Table 5 lists additional interventions for physicians who exhibit disruptive behavior.

Table 5.

Suggested interventions for physicians exhibiting disruptive behavior

1. Engage the physician one-on-one with data and examples of the behavior; keep the discussion focused on the behavior and try to avoid personality conflicts (7)

2. Refer to and make available the credentialing by-laws of the facility, including issues of due process

3. Consider and exclude potential medical reasons, including depression and drug dependence

4. If necessary, engage all who may oversee the functioning of the medical director, such as the governing body, company medical advisory board, chief medical officer and dialysis organization’s legal department

5. Suspend or terminate recalcitrant physicians. Dialysis providers must be vigilant and firm in this regard, even if it means the transfer of patients. The facilities’ quality of care must take precedence.

6. If necessary, report the disruptive behavior to the state medical society. This allows the medical society to adjudicate the appropriateness of the complaints and to recommend or mandate actions.

A New, “Old” Intervention for Correcting Aberrant Behavior in a Medical Context

The Information, Motivation, and Behavioral Skills model, a relatively old intervention for changing behavior, is receiving increased attention in the medical literature. The model has proven effective at improving behavior in various countries and various diseases (26–28). Physicians, nurses, and social workers trained in the use of the model can apply it one-on-one, in peer groups, by telephone, or by video conference. Research demonstrates that the model is substantially more successful at changing aberrant health-related behavior (e.g., HIV risk reduction) and improving physiologic variables (e.g., BP, weight, glucose control, cholesterol) than is merely providing knowledge and motivation about changing behavior (29). To information concerning what has to change and motivation for why it has to change, the model adds instruction concerning the behavioral skills necessary to actually change the aberrant behavior. To our knowledge, this program has never been applied to dialysis-related disruptive behavior, but it is reasonable to expect it would be as effective in this venue as in any other aspect of health care.

Conclusion

Disruptive behavior by any member of the renal care team impedes providing high-quality care. The medical literature describes disruptive behavior exhibited by patients, and many resources are available to deal with these occurrences. However, physician-exhibited disruptive behavior in the dialysis facility has been under-appreciated despite the likelihood that the behavior compromises the delivery of safe and effective quality care. Medical directors are responsible for all care delivered in the dialysis facility, in particular for the delivery of high-quality care. Thus, dealing with disruptive behavior regardless of the source is the responsibility of the medical director.

Disclosures

E.R.J. provides consulting services to Fresenius Medical Care, Physician Choice Management and Reliant Renal Care. He is a board member of Cytosorbent. He is a counselor to the Renal Physician Services.