Courting legal liability: Troubling behaviors
By Elizabeth E. Hogue, Esq.
Attorney
Burtonsville, MD
Home care providers are understandably concerned about recent changes in the industry that have radically altered the home care landscape. Based upon their overriding commitment to patients, staff members may be tempted to take up the slack by providing free or voluntary services to patients. Staff members may return to patients’ homes in the evenings and on weekends, for example, to provide additional services for which they are not compensated. Or case managers and/or patients and their families may ask for free services in addition to those for which the provider bills the payer source.
Staff members who engage in those activities, and agencies that allow them to do so run the risk of the following types of liability:
• It is extremely difficult, if not impossible, for patients to draw distinctions between when staff members are acting on behalf of the agency and when they are acting strictly on their own. Consequently, if any risks are incurred, even when staff members are not acting on behalf of agencies, patients and their families are likely to turn to agencies and their insurers to be responsible for damages that may be caused by the actions of staff members. Although agencies can certainly argue that they are not responsible because staff members were not acting on behalf of the agency, it is always time-consuming, and perhaps expensive, to be drawn into a lawsuit, even if the agency is ultimately found not liable.
• To the extent that free or voluntary services are perceived as an inducement to patients to initiate, continue, or reinitiate services with particular Medicare-certified agencies, home care providers may run the risk of violation of Medicare/Medicaid fraud and abuse prohibitions or kickbacks and rebates. The Office of the Inspector General, of the U.S. Department of Health and Human Services, a primary source of enforcement activity, has clearly indicated that the provision of free services to beneficiaries may constitute a violation of those prohibitions. When private duty agencies that provide services to patients under Medicaid waiver programs — for example, free services — enforcers may reach this conclusion.
The government’s view
This position may strike staff members as confusing and perhaps contradictory. Since the point of fraud and abuse enforcement is to prevent unnecessary costs, shouldn’t the government welcome the provision of free services to beneficiaries by providers that save money since they are free?
Nonetheless, the government’s point of view is that when free services result in additional utilization of services, there is a fraud problem. The question of whether free services induced beneficiaries to utilize Medicare or Medicaid services paid for by the Medicare/Medicaid programs that they otherwise would not have utilized is certainly a tricky one to answer. In the current environment of hypersensitivity to fraud and abuse issues and in view of the other concerns raised in this article, the best course of action for providers is undoubtedly to avoid the provision of free services altogether.
Create a policy
There are professional boundaries that should be established and maintained between nurses, social workers, therapists, and their patients. When practitioners do not stick to those limitations, it calls into question their professionalism. Whenever practitioners violate standards of professional conduct, they should be concerned about disciplinary action by state licensure boards. Providers and members of state licensure boards may take the position that provision of free or voluntary services to home care patients amounts to unprofessional conduct when professional boundaries are not respected.
In response to those concerns, agencies may wish to develop and implement a policy that prohibits staff members from providing free or voluntary services to patients. Although the intentions of staff members are certainly the best, the risks are potentially substantial.
If agencies elect to adopt such a policy, the legitimate needs of Medicare and Medicaid home care patients should still be met, as far as possible, in view of recent changes. The good intentions and fine motivations of practitioners must also be acknowledged. But the bottom line is that for all of those reasons, the provision of free services is problematic in today’s health care environment.
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