Avoiding charges of abandonment
Providers must meet three conditions
When patients' home circumstances irrevocably change for the worse, private duty providers may determine they can no longer safely or appropriately provide care. Even though their case termination actions are justified, providers face the risk of patient abandonment charges. They can take steps now, and at the time they are involved in a case termination, to limit that possibility, experts advise.
Patient abandonment is defined by these three conditions:
1. The provider unilaterally terminates the provider-patient relationship.
2. Services end without reasonable notice.
3. The patient requires further treatment.
Patients must demonstrate that all three circumstances exist to substantiate their abandonment, says Elizabeth Hogue, a Burtonsville, MD-based health care attorney who specializes in home care.
To avoid unilaterally terminating services, providers should explore and document all efforts to correct problems leading up to the termination. They should also give patients every opportunity to help resolve the circumstances, Hogue says. For example, if a patient becomes noncompliant, the provider could re-educate the patient and seek family involvement in the patient's care.
If a patient's funding is on the wane, providers could help the patient locate other payment sources, including paying out of pocket.
"Practitioners are sometimes uncomfortable offering patients the option to private pay for services when they perceive that patients cannot afford it. Providers must first acknowledge that their perceptions about what patients can afford may be incorrect. Individuals with significant economic resources do not always live lavish lifestyles," says Hogue.
Reasonable notice depends on each case's particular circumstances, although Hogue generally recommends no more than three to five days. While that may seem short, relations usually deteriorate and care becomes increasingly difficult once a provider informs the patient of the decision, she notes. The notification period has declined over the years for two reasons, she adds:
r providers' increasing inability to withstand the financial burden of providing uncompensated care;
r providers' experiences that a speedy termination, if handled properly, does not adversely impact patients.
Carefully review state regulations, however, as regulatory and legal interpretations may vary, cautions Judy Balaban-Krauss, RN, president of Goshen, NY-based Wellness Home Care Ltd. State regulators required Wellness to remain on a case until another provider started care, even though it provided legally acceptable termination notice.
The question of whether a patient needed further attention at the time of discharge is usually resolved in the legal system, Hogue advises. Courts look for proof of the patient's physical injury or damage upon case termination. Provider actions to ensure patient safety may include sending an ambulance to the patient's home at the time of discharge. "If the patient refuses transport by ambulance, [he or she] will have been contributorily negligent or will have assumed the risk, so that providers are likely to avoid liability," Hogue adds.
Terminating services is not something any provi der takes lightly. Providers' overriding patient care commitment sometimes makes it difficult to recognize when they should no longer be involved. "Its not always that clear-cut. With different dynamics in the family, you slowly lose the ability to staff a case, or the family no longer sees you as a partner but as an adversary. You can't do your job because you don't have trust, and trust in home care is very important," says Balaban-Krauss.
You may experience "repeated episodes of problems, and there doesn't seem to be any way to resolve the situation. Nothing changes, even after you change staff, and you are spending an exorbitant amount of staff time trying to answer 'What do we need to do to meet this person's needs?'" says Judy Morris, RN, director of professional services, for Harrisonburg, VA-based Continuing Care.
Violence or threats of violence justify immediate termination, Hogue advises. "You should terminate services any time employees say they're fearful. Employees tend to stay in too long, so [providers should] really pay attention to that," she adds.
· Review your discharge policy.
One of the first steps providers can take to minimize abandonment liability is strengthening their discharge policies. They should clearly state reasons for which you may terminate services, including noncompliance, Hogue says. (See sample discharge policy, at left.)
· Review your discharge policy with patients.
"When a client is admitted, explain your discharge and termination policies in addition to your admissions and grievance procedures, and make clear the reasons for a termination," advises Balaban-Krauss.
· Conduct a thorough initial assessment.
"Do a very thorough assessment initially, and explain the difficulty of keeping patients at home to the caregivers, and that ultimately the responsibility [for patient care] lies with the client and family," says Balaban-Krauss. "Many [clients] assume responsibility transfers to the home care company, and while home care does have responsibility, the ultimate responsibility is with the family and client," she adds.
This is especially important in today's environment. Managed care organizations now increasingly utilize home care, but they may not understand its limitations or appropriate use, says Hogue. Carefully documenting the home environment at case-opening and ongoing intervals may defend you from misinformed managed care actions, she adds.
· Don't make guarantees.
Private duty providers should be careful not to make service guarantees - such as staffing rates - that they cannot keep, Balaban-Kraus advises. Setting an expectation that you later do not meet may expose you to liability.
· Consult expert counsel.
"Get direction upfront before you have to correct things after they've started, and contact an attorney familiar with Medicare and Medicaid," Morris suggests.
Balaban-Kraus agrees. Wellness used home care-experienced counsel to walk through a difficult termination case, even though it has an established corporate counsel relationship.
· Conduct a case conference.
When a case is edging toward termination, conduct a professional case conference, including as many members of the treatment team as possible. Physicians are not necessary or even desired at the meeting, Hogue notes. The conference provides an opportunity for all caregivers to voice their concerns about the case.
Case conference participants will also determine the appropriate termination notification period. Considerations include patient desires, clinical condition and mental status, along with the availability of alternate care sources, Hogue advises.
· Give written notice.
Notify both the patient and the physician in writing (preferably hand-delivered) that services will be terminated, Hogue suggests. She recommends not consulting with the physician about whether to terminate services. "You are setting yourself up for a spitting contest if you ask the physician, and he or she, for whatever reason, doesn't want to discharge the patient. Even Medicare Conditions of Participation don't require a discharge order - just notification."
You may also need to contact appropriate regulatory agencies, Balaban-Krauss adds.
· Stand your ground.
After initiating termination proceedings, provi ders may be assailed by physicians, unhappy family members, and payers. But it is important to stand your ground. Doing so is easier when you are comfortable with the action. "Make a decision that you can live with," Balaban-Krauss advises.
"I encourage providers to always express compassion during termination. People may think they're inconsistent, but I think its important to stay in touch with feelings and the need to express compassion," says Hogue.
"It is very difficult to have to terminate home care services, especially when its not the client's fault, but [rather], other caregivers are unwilling or unable to safely keep the patient at home," says Balaban-Krauss. Serenity during case terminations may be hard to find but is possible if you give full effort beforehand, Morris advises. "I felt peaceful knowing I had done everything I could," she adds.
[Editor's note: To order Termination of Services: Policies and Procedures to Avoid Liability for Abandonment, contact Elizabeth Hogue at (301) 421-0144. The publication, written by Hogue, costs $100 plus $5 for shipping and handling.]
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content