Address legal and ethical issues related to P4P
Inappropriateness and non-compliance
The Centers for Medicaid and Medicare Services' Pay For Performance Demonstration Project will test and identify data collection and measurement, and financial incentive approaches for a home health pay for performance system but it may emphasize some legal and ethical issues as well.
"We don't have details on the pay-for-performance program's final design or what legal and ethical issues will be raised but it is important that agency managers be prepared to address two issues now," says Elizabeth E. Hogue Esq., a Burtonsville, MD attorney. The most critical legal or ethical issues are appropriateness for home care services and the non-compliant patient, she says.
Advances in technology and increased skills and education of nurses and therapists have expanded the services that can be offered to patients in the home, but not all referral sources understand the limitations that may exist within the patient's home or family, points out Hogue. She says that patients who are referred to home care must meet the following criteria:
- Patients' clinical needs must be able to be met in their homes.
- Patients must either be able to care for themselves or they must have a paid or voluntary caregiver available to meet their needs between visits from professional staff.
- Patients' home environments must support home health services.
While home care nurses and therapists can usually meet the clinical needs of patients, not all patients have the home environment or the caregiver support necessary for home care, explains Hogue. Referral sources should make every effort to determine if patients can care for themselves or if there is another caregiver available, she says. There are times, however, when referral sources may realize that home care may not meet all of the patient's needs but if the patient refuses nursing home admission, the referral source may decide some care is better than none, she says.
The challenge for home care nurses comes at the time of the initial assessment, says Hogue. "Conditions of Participation for Medicare state that the first visit to a patient's home must be an assessment visit that evaluates not only the type of care needed by the patient but also the appropriateness of home care for the patient," she says. "Failure to assess patients during the initial visit and acceptance of all patients based on referrals regardless of other factors may violate national standards of care," she adds.
Not only may home care providers be liable for injuries that occur when inappropriate patients are admitted for home, but referral sources may be liable as well, says Hogue. Additionally, home care agencies that must expend an inordinate amount of staff time and other resources for inappropriate patients are potentially reducing care to appropriate patients and that presents both a financial and an ethical dilemma, she adds.
Make sure that staff members as well as referral sources understand that the patient is not accepted for home care until after the initial assessment, suggests Hogue. If the patient is not appropriate for home care, contact the initial referral source so that other arrangements can be made for the patient. "If the problem is a lack of a family caregiver, the home health agency may be able to provide private duty staff to serve as caregivers," she suggests. In any case, the referral source needs to know that the patient is not appropriate for home care or needs other assistance, she adds.
Non-compliant patients pose problems
One of the keys to successful outcomes and success within a pay-for-performance system is a compliant patient. "The non-compliance of wound care patients is legendary," says Hogue. "Diabetic patients do not stick to their diets, family caregivers do not follow instructions for dressing wounds, and bed bound patients do not regularly change positions," she explains.
While it is easier to overlook non-compliance, it is imperative that home care staff members take action to bring caregivers and patients into compliance, or discontinue services, says Hogue. Not only are financial outcomes related to pay for performance affected by non-compliant patients, but also agencies are at risk for legal liability because it is difficult to separate substandard care from non-compliance by caregivers and patients, she points out. Home care agencies cannot afford either the legal risk or the reduction in reimbursement that non-compliance can cause, she adds.
Although documentation is important in all aspects of patient care, it is especially critical for non-compliant patients and steps taken by staff members to address non-compliance, says Hogue.
- Document every non-compliant action.
Staff must document every instance of non-compliance by both patients and/or their primary caregivers regardless of the risk associated with the non-compliant behavior.
- Documentation must be very specific.
Hogue points out that it is not sufficient to document as follows: "Patient (or primary caregiver) non-compliant." She says that providers, for example, may document the failure to change the diapers of a bed-bound patient who is incontinent of both bowel and bladder as follows: "RN discovered patient with urine and feces in diaper. RN removed diaper, cleaned patient and placed clean diaper on patient. RN marked the right tab of the clean diaper with a red X. When the RN visited the following day, the patient was again lying in urine and feces. When the RN removed the diaper, she observed a red X on the right tab of the diaper the patient was wearing when she arrived."
- Counsel patients and caregivers.
Staff must counsel patients or primary caregivers regarding each instance of non-compliance and document that they have done so, says Hogue.
"The number of times practitioners are willing to repeat this protocol depends on the risk of injury/damage to patients associated with the non-compliance," says Hogue. She warns, "If patients are likely to be injured or damaged, providers should not tolerate additional instances of non-compliance after taking the above steps."
Source:
For more information about legal and ethical liabilities, contact:
- Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Phone: (301) 421-0143. Fax: (301) 421-1699. E-mail: [email protected].
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