Cherry picking nursing home patients creates liability risk if not careful
September 1, 1999 7 minutes read
Cherry picking nursing home patients creates liability risk if not careful
Some patient selection criteria necessary, but they must be reasonable
Long-term care and skilled nursing facilities always have used certain criteria for determining which patients to accept and which patients to turn away, but recent attention to the practice has upped the ante for risk managers. That increased attention and charges that health care providers are being callous make it more likely that providers could be charged with wrongdoing.
Risk managers acknowledge that long-term care facilities have to turn away some patients out of necessity, simply because the care demands of those patients cannot be met in a reasonable way. But when facilities take the practice too far, cherry picking the most profitable patients, they put themselves at risk of lawsuits charging discrimination and violations of Medicare and Medicaid rules, say risk management experts.
The fact that facilities have been rejecting selected patients for a while could lull some risk managers into complacency, cautions Sandy Mahon, vice president for risk management and quality assessment with Program Beta, the risk pool for hospital districts in California, based in Alamo. She coordinates risk management activities for 77 hospitals.
"I don’t know that anything particularly new is going on with the way facilities select patients, but the topic has hit the media lately, and that alone increases the way people are going to be sensitive to the issue," she says. "There also may be some exacerbation because of reduced reimbursement, but skilled nursing facilities have cherry-picked for a long time."
Mahon says she recently consulted with hospital staff who could not place a 400 lb patient in a skilled nursing facility. None of the facilities contacted would take the patient even if they had a bed available, saying they were not prepared to handle such a large patient. Many cited concerns that the staff would be injured while trying to work with the patient.
"That’s an example of what I would say is a reasonable discrimination on the part of the skilled nursing facility," Mahon says. "The situation is very difficult for the hospital trying to place the patient and for the patient’s family, but you can’t say that a nursing facility has to accept everyone."
Extent, reasons are key to judging denials
The practice of accepting and denying patients for long-term care is a difficult one for the risk manager to monitor, says Leilani Kicklighter, RN, ARM, MBA, DASHRM, assistant administrator for safety and risk management with the North Broward Hospital District in Fort Lauderdale, FL. Kicklighter is the immediate past president of the American Society for Healthcare Risk Management. Unlike for many practices that may get the organization in trouble, the risk manager cannot just tell the facility to stop screening patients and making admission decisions. Some latitude must be allowed, but the risk manager has to be careful in deciding how much, she says.
It is clear, however, that the facility cannot discriminate on the basis of expected profitability from a certain patient, she says. That approach has garnered the most criticism recently, with most providers denying a financial intent. They insist they were using other more reasonable criteria. Because of increasingly tight operating margins and lowered reimbursement rates from Medicare, Kicklighter says she anticipates more charges of cherry picking than the health care community has seen before. Some of those charges will be legitimate, she says.
"I’ve heard the charges that facilities are denying patients because the reimbursement is too low, and that didn’t sit well with me from either a personal point of view or risk management point of view," she says. "I guess I wasn’t surprised to hear that people do that, but it’s not something you can accept as the right way to do business."
Much of the media attention can be traced to reports in the Washington Post, which alleged on June 7 that "those who are increasingly unwelcome at skilled nursing facilities include patients requiring antibiotics, tube feeding, dialysis, and ventilator support." The article goes on to say that "admitting those patients can be a sure way to lose money under Medicare’s new, lower reimbursement rates."
Kicklighter and Mahon say the Post report is essentially true, but it still may not legitimize overzealous screening of patient admissions. Federal regulations clearly require that health care providers employ the same selection standards for Medicare and Medicaid patients as for any other patients, so evidence of any double standard related to federal reimbursement can bring investigators to your door. The ultimate punishment could include being barred from the Medicare and Medicaid programs. Because the risk is so great, risk managers need to be involved in what might otherwise be seen as a purely financial and/or clinical decision.
"Risk managers need to be at the table when these decisions are made so you can help the organization put together a game plan and not look like jerks in the community," Mahon says. (See box, p. 103, for more on the potential for negative publicity.)
The federal Health and Human Services Administration in Washington, DC, the agency that oversees Medicare, has asked the inspector general of the Department of Health and Human Services to investigate Medicare beneficiaries’ access to skilled nursing facilities.
"Finances drive a lot of health care, and health care ultimately is a business," Kicklighter says. "But when you sign on to take Medicare and Medicaid, you’re supposed to take what they pay. Some people don’t seem to want to do that."
Charges can be difficult to prove
Patient screening can be abused because it is so difficult to prove, Kicklighter says. The facility is not likely to say it is refusing a patient because the Medicare reimbursement is too low, citing instead more reasonable explanations related to clinical care.
"Cherry picking is prohibited, but how do you prove that’s why they refused the patient?" Kicklighter says. "If you can prove that there is a bed available and the patient’s needs are within that particular facility’s ability to care for the patient, then you have a case. But that is difficult without seeing a trend or a pattern."
Mahon says any lawsuit resulting from a denied admission would be similar in some ways to a lawsuit for wrongful termination. In both cases, the action could have been reasonable if it were done for the right reasons, but the plaintiff will allege it was done for prohibited reasons such as race, ethnicity, age, or profitability.
"They’ll grasp at some reason that gives them a foot up to sue, even if it is not substantiated by anything more than the desire to file a claim against you," Mahon says. "The more you can show that you have a policy against such discrimination and have inserviced it, [that] you have a grievance process and so on, the better off you are. If you can’t show those things, the patient can have a more reasonable argument."
Such a policy could make all the difference if you are accused of rejecting a patient for prohibited reasons, Mahon says. If you have a policy, and records to show you have adhered to that policy, you can support your defense that the patient was rejected for legitimate reasons. Without such a policy and supporting records, you may be subject to assumptions about your true motivations.
Ensuring that preventive measure is in place could be the risk manager’s most important contribution, since many of the financial and clinical decisions key to the actual admission decision are beyond the risk manager’s control.
"The risk manager’s role in all of this is to make sure the organization has a policy in place, that’s it’s well understood by the organization," Mahon says. "You should make sure the Title VII statement [the federal regulation prohibiting discrimination in public accommodations] is in everyone’s mind and they understand the severity of the problem."
The risk manager also may want to set up a system for collecting census data that would refute claims of unreasonable discrimination, she says. The more data, the better. Remember that when it comes to charges of cherry picking, it is important to gather data not only on the "usual" causes for discrimination such as race and age, but also on clinical issues such as ventilator use, size, severity of illness, and reimbursement rate vs. actual costs. In many cases, the provider will benefit by showing it does take on patients that may be seen as "undesirable" in a financial sense as long as the overall census can support those patients. Most health care professionals understand the idea that you can not take on an excessive number of those patients, but you are expected to take on as many as you can handle.
"It’s a concern to know that cherry picking is going on, but, at the same time, you have to reach a balance to ensure survival of the organization," Mahon says. "You can have one patient who takes up all the facility’s resources, and that can be detrimental to the other patients and the facility overall. When that’s your concern and not just the money involved, I think you can argue that you’re making a reasonable decision."
If an organization’s risk manager gets wind of any prohibited cherry picking, Kicklighter says, he or she must take action quickly. Kicklighter says she would first go to the organization’s compliance officer, then the senior administrator and the director of finance.
"I’d make them aware of all the potential for government regulatory agencies to come in, and all the things that could happen once regulators come in and start going through your operations," Kicklighter says. "It’s still a business decision they have to make, but the risk manager’s job is to itemize the exposure and the possible liability from those exposures. I would take a hard line on this."
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