I. Introduction
Outpatient clinics, including those operated by Care First, are increasingly encountering patients with behavioral health challenges, ranging from mood instability and cognitive impairments to aggressive or impulsive tendencies often tied to traumatic brain injuries (TBI), psychiatric diagnoses, or developmental disabilities. When clinics fail to provide appropriate supervision and assistance to such individuals, they may face substantial legal and professional liability under both tort and regulatory frameworks. These liabilities arise from foreseeable risk of harm and breach of duty to ensure safety.
II. Legal Basis for Liability
A. Duty of Care and Negligence Principles
Under tort law, healthcare providers, including outpatient clinics, owe a duty of care to their patients. When that duty is breached, such as by failing to adequately supervise a patient known to pose a behavioral risk—and that breach results in harm to the patient or others, the clinic may be found liable for negligence.
Courts have established that where a facility knows or should know of a patient’s behavioral risks, it must take reasonable steps to mitigate foreseeable harm (see Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976); Thompson v. County of Alameda, 27 Cal. 3d 741 (1980)).
B. Regulatory Compliance Federal and state regulations—including CMS Conditions of Participation and Joint Commission standards—require that outpatient facilities provide a safe environment that accommodates the needs of all patients, including those with behavioral and cognitive impairments. Failure to provide trained personnel to manage such needs may result in violations that impact accreditation and participation in Medicare or Medicaid.
III. Clinical Considerations and Professional Role Limitations
- Role of Certified Occupational Therapy Assistants (COTAs) and Physical Therapist Assistants (PTAs)
COTAs and PTAs function under the direction and supervision of licensed therapists and are not independently licensed to assess or formulate behavioral interventions. Their scopes of practice are defined by state licensure laws and professional standards:
- COTA: Assists in carrying out treatment plans designed by Occupational Therapists. Focus is on promoting independence in daily living activities but does not include behavior management unless directly tied to an OT treatment goal and under supervision.
- PTA: Implements portions of the physical therapy plan of care created by a Physical Therapist. PTAs do not provide psychological or behavioral assessments or interventions.
Due to their limited scope, these assistants are not suitable primary supervisors for patients exhibiting behavioral challenges unless closely overseen by a licensed clinician specifically trained in behavioral health.
B. Value of Behaviorally Trained Attendants
Behaviorally trained attendants bring targeted skills in:
- Crisis de-escalation and conflict resolution
- Recognition of agitation triggers
- Use of therapeutic communication techniques
- Monitoring and intervention to prevent harm
These attendants may be certified in behavioral intervention models (e.g., CPI or Mandt System) and are often better equipped to detect and manage escalating behaviors in real time. Their presence adds a critical layer of patient protection and supports therapeutic engagement.
IV. Case Law and Precedent
Case studies and settlements have demonstrated that when facilities fail to assign appropriately trained staff to supervise patients with a documented behavioral risk, they may be liable for resulting injuries.
For example:
- In Estate of Smith v. XYZ Rehab Services (hypothetical), a clinic was held liable after a behaviorally unstable patient eloped from the clinic and was injured. The court found that supervision by a COTA with no behavioral training was inadequate.
V. Discussion Conclusion and Recommendations
Outpatient clinics must implement risk-informed staffing models that align with the behavioral profiles of their patients. While COTAs and PTAs are valuable for rehabilitative support, they are not substitutes for trained behavioral personnel. Failing to recognize this distinction may expose clinics to legal liability, regulatory sanction, and reputational harm.
Care First functions with this in mind.
To accommodate much of this Care First updates Treatment Plans to add this section. Policies also reflect this requirement to fulfill their duty of care and protect all parties involved. We document thoroughly when guardians, medical case managers and insurers refuse to acknowledge this risk, as it could benefit patients in the event of harmful incidents.