Avoid abandonment when it’s time to terminate care
By John C. Gilliland II
Locke Reynolds LLP
Indianapolis
There are many reasons a hospital-based home health agency may want to terminate services to an existing patient even though there is still a need for continuing care.
The patient may have refused to cooperate with agency staff, or reimbursement for services may have been denied. Agency staff may be endangered by environmental factors such as physical threats, dangerous dogs, or sexual harassment.
Discharging a patient under most circumstances is legally permissible provided certain steps are followed. What an agency must not do, however, is "abandon" a patient. Abandoning a patient not only raises serious ethical questions, it can be the basis for significant liability if the termination of services causes harm.
Patient abandonment means a unilateral severance of the professional relationship between a health care provider and a patient without reasonable notice at a time when there is still a need for continuing care.
Court decisions involving patient abandonment generally deal with abandonment by physicians. However, the legal principles established by those cases provide valuable information for other providers. For example, in interpreting Ohio law in 1965, a federal district court in Ohio quoted an Ohio decision, which stated:
". . . although a patient may, in the absence of an agreement to the contrary, discharge a physician at any time, before a physician can withdraw from the case, it is necessary for him to give reasonable notice to the patient in order that another physician may be procured, the character of the services of the physician and his relation to the patient being such that he is not permitted under the law to arbitrarily quit the services at any time without any cause and leave his patient without medical attendants."
Essentially, three elements must exist for patient abandonment to occur:
- Termination of services must be unilateral.
If services are terminated by mutual agreement, there is no abandonment because the patient agreed to the discharge.
- Termination of services must occur without reasonable notice, meaning notice adequate to give the patient sufficient opportunity to arrange for alternate care.
If reasonable notice is given, the patient has time to secure alternate care and therefore is not "abandoned."
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Termination of services must occur when there is still the necessity for continuing care.
If there is no need for continuing care, it is a typical discharge and no abandonment occurs.
Because the issue of patient abandonment arises when the health care provider desires to unilaterally terminate services at a time when continuing services are needed, the first and third elements of abandonment exist. Consequently, the key to avoiding patient abandonment is to give reasonable notice of the termination of services. If reasonable notice is given, that critical second element of abandonment does not exist.
To avoid patient abandonment, the following steps are generally expedient when a health care provider feels compelled to discontinue services to a patient:
Step 1: Examine the patient’s records.
Identify any restrictions on your agency’s usual right to discharge a patient and circumstances that affect how much notice of discharge is reasonable in a particular situation. Check for any regulatory or contractual restrictions, which may exist for discharging the patient, such as Medicare conditions of participation and managed care contracts. The patient’s records should be carefully examined to determine the degree of need, if any, for continuing care, the availability of alternate providers, and the ramifications to the patient if alternate care is not secured.
Step 2: Follow your agency’s discharge policies.
Be sure the termination of services is consistent with your agency’s discharge policies and procedures. Even though the termination of services
is otherwise legally permissible, liability could result if it is not compatible with your agency’s own policies.
Step 3: Notify the patient’s physician.
The patient’s physician should be notified in writing of the problems your agency is experiencing with the patient and that your agency intends to stop providing services on a certain date. The physician may be able to intervene to help correct the problem or to assist the patient in finding
an alternative provider. The physician’s active involvement often helps resolve difficulties.
Step 4: Give reasonable notice to the patient.
The patient or, if the patient is not competent, those responsible for the patient’s care, should be notified in writing of: the date on which your agency’s services will end; the reason or reasons for the termination of services; and how your agency will provide continuity of care in the transition to a alternate provider. It also is useful for that notice to give the names, addresses, and telephone numbers of other providers in the area that could provide services to the patient.
You want to be sure you can prove the written notice was received by the patient or those responsible for the patient’s care. Certified mail, return receipt requested offers reliable proof of receipt. Or you and a colleague (i.e., a witness) may chose to meet with the patient/responsible party to discuss the situation and personally hand them the written notice. A copy of the notice should be given to the patient’s physician as well.
The written notice must be received by the patient/responsible party far enough in advance of the date services will terminate to give the patient sufficient time to secure alternate care. As stated in the Ohio decision, it must be "reasonable." How far in advance is reasonable depends upon all the facts and circumstances of each situation, including the patient’s condition, the availability of other providers, the ramifications if alternate care is not secured, and the reason for termination of services.
Exact steps depend upon the situation
The preceding steps are the basic approach to follow in terminating services to a patient who is in need of continuing care. Nevertheless, provided there are no circumstances in Step 1 that prohibit the termination of services, the key step is Step 4 — giving reasonable notice. In the event of litigation, a jury will determine whether the notice was reasonable based on all the facts before it. Consult with your attorney concerning the situation; he or she can help determine how much notice is reasonable under the circumstances.
Although giving reasonable notice of termination of services will avoid patient abandonment in most situations, the best time to deal with an abandonment situation is before it ever arises. Three of your agency’s policies are especially important in that regard:
- First, review your agency’s discharge policy. Be sure the various nonclinical reasons for discharge (e.g., unsafe environment for staff) are mentioned. Also be sure your policy does not require a certain amount of notice in all circumstances without recognizing exemptions. For example, do not have a policy that requires two weeks notice in all cases. If your staff’s safety is endangered, you will want to discharge on very short notice.
- Second, review your statement of patient rights and be sure it includes patient responsibilities as well, such as the responsibility to cooperate with staff and to provide a safe environment. If you need to terminate services while there is still a need for care, it is helpful to be able to show that the reason was a patient’s failure to meet one of those stated responsibilities.
- Finally, review your agency’s admission policy and criteria. Is there anything about your admission criteria that could lead to inappropriate admission of patients? It is not unusual for a terminating agency to say it knew from the beginning that the patient would be a problem. Why was the patient admitted? The best way to avoid patient abandonment is to not take the problem patient in the first place.
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