Avoid abandonment claims with these guidelines
Home care providers want to know how they can protect their agencies against abandonment claims when they have to cut off patient services because of managed care constraints.
Now with Medicare reform beginning to mirror the managed care philosophy, an answer is urgently needed.
"What’s the fine line between the legal and the professional? Who ultimately dares responsibility when the third party says this is all we’re going to allow?" asks Mary Elizabeth Derwin, JD, MS, RN, CNAA, staff attorney for the Visiting Nurse Association in Detroit. Derwin deals with professional legal issues and ethics and is involved with the Michigan Home Health Association.
"There’s a real professional ethics dilemma for staff when they’re faced with that kind of visit limit, and an assessment says they need this amount of visits to achieve outcomes," Derwin adds.
Derwin recommends health care providers take steps to ensure they won’t be accused of abandoning patients. Here are some guidelines:
• Put your disagreement with the managed care company’s decision in writing.
Home care providers typically will accept what the managed care organization says and not carry the issue further, Derwin says. But this can be a mistake, especially when they believe the patient needs more care than what is allowed by the managed care organization.
"They need to write to the managed care entity that they disagree with the decision in terms of the number of visits approved and give reasons for that," Derwin says. "A copy has to go to the physician, and a copy goes to the patient."
• Help patients and families become advocates for themselves.
They are the subscribers, Derwin explains, and so they have a right to appeal to the managed care company.
"The physicians are caught between the managed care organization and the client," she adds. "But the family can be more instrumental sometimes than the home health provider and the physician in terms of getting the managed care entity to approve visits."
Still, the families need help from the home care staff and others because they might lack the skills to be their own advocate, Derwin says.
"If they can’t fight it on their own, and if it’s an employer-based plan, they need to let the employer fight for their rights," she says.
• Look into your state’s case law to see whether the state has held home care agencies responsible for problems resulting from cutting off a patient’s care because of insurance limitations.
"They need to address the allegation of abandonment," Derwin says. "In Michigan, we have a law that addresses how a health professional is to extinguish a patient-provider relationship."
Michigan’s law, which is a combination of case law and statutory law, gives details about what steps need to be taken. These include helping the patient find another health care provider, she says.
They have to give the patient sufficient notice of when the care will end so that the patient has an opportunity to find other providers, Derwin says.
They also have to give the patient a description of the complications that could occur without care.
But the law doesn’t say a health provider has to provide care when there’s no means for reimbursement, Derwin emphasizes. "We’re not legally obligated to do that. But ethically it’s something different, and it’s all about trying to balance the legal and the ethical."
• Offer the patient the opportunity to pay for his or her own services, and then see if your community or agency has funds to cover uninsured or underinsured patients.
"In terms of protecting the agency from abandonment, the decision has to be that the patient discontinued care because he could not pay for the services, rather than the agency has discontinued service," Derwin says.
"The burden shifts to the patient to say, I am not willing to work out a payment schedule with you to pay for the care.’" Derwin advises home care providers to offer the patient the chance to pay for his or her own services and then see what resources are available in the community to help pay for such care.
"The VNA has access to community funds to help with that kind of thing, but not every home health agency has that," Derwin notes.
"Even community-based funds are not a deep well; they only have a certain amount of money to help with it."
Plus, Derwin adds, these sorts of funds are intended for patients who have no insurance, not patients who have insurance that won’t pay.
Still, it’s possible the community or state has some resources that could help the patient receive medical attention.
For example, many communities have free health care clinics and funds to help with transportation, although there is very little money available to pay for actual care in the home, Derwin says.
And if the patient is truly homebound, then transportation services won’t help, she notes. "So it’s difficult, but everyone needs to know what community alternatives are available."
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