By Elizabeth E. Hogue, Esq.
Burtonsville, MD
Legal liability comes with every relationship between agencies and patients. Unfortunately, the home health model of care precludes the use of criteria such as a patient’s entry into a health care institution to determine when the provider-patient relationship is created.
Home care providers must, therefore, develop other mechanisms for controlling both the beginning and end of relationships with patients. When agencies fail to control the start and finish of the provider-patient relationship, the potential for legal liability is greatly enhanced.
So providers must ask and answer some crucial questions, including: When should the provider-patient relationship begin? Are agencies responsible for patients from the moment they receive referrals? Are staff responsible, for example, for patients who are referred via fax at 4:00 p.m. on Friday afternoon?
Clearly, the most appropriate answer to these questions is that home care providers should establish relationships with patients only after they have an opportunity to assess patients’ appropriateness for home care. Otherwise, home health agencies will assume liability for patients whom they have never seen and over whom they have no control — a very risky proposition.
Of course, many patients’ and referral sources’ expectations are exactly the opposite. That is, they anticipate that home care providers have agreed to provide services upon receipt of referrals and will take care of everything even before staff have a chance to evaluate patients.
These expectations were reinforced by cost-based reimbursement when home care agencies were rewarded for admitting as many patients as possible and providing as many visits as possible to them.
Staff directly must confront these expectations. Visiting staff should tell patients and their families upon arrival for the first time at the patients’ home that they have not agreed to provide care for the patient.
Rather, the staff member has come to assess the patient for appropriateness for home health services. If the assessment reveals that the patient is appropriate for home health care, the patient will be admitted. But if the evaluation shows that the patient is not appropriate for home care, the patient will not be admitted, and agency staff will not provide services.
Staff should then assess patients. Patients should not be asked to sign any documents such as a consent to treat or acknowledgement of the Patients’ Bill of Rights until the assessment is complete.
This practice is contrary to the procedures advocated by many surveyors. But surveyors’ insistence on a particular practice that cannot be supported by Conditions of Participation has the effect of subjecting agencies to increased liability because it forces agencies to establish the provider-patient relationship before proper assessment is completed.
The rationale given by many surveyors for this is that consent is required before staff "lay hands on" patients.
The law does not support such reasoning. In fact, the law regarding consent to treatment clearly indicates that no informed consent is required for routine types of treatment, including physical assessment. In addition, consent is implied when staff are admitted to patients’ residences and patients follow instructions to complete evaluations.
Assessments performed by staff should be global and include:
- the patients’ clinical condition;
- the patient’s ability to self-care or the availability of a reliable primary caregiver to meet the needs of patients in between visits by agency staff;
- the patient’s home environment, and if it will support home care services.
If this comprehensive evaluation indicates that patients are appropriate for home care services, patients should be asked to sign an admission agreement.
"Admission agreement" may be an ominous term for providers in the sense that they may envision a long, complex document. On the contrary, admission agreements usually include a combination of the various forms agencies use upon admission, including the agreement to pay, consent to treatment, release of medical information, acknowledgement of the Patients’ Bill of Rights, etc. All of these forms should be combined into one document that is called the admission agreement.
Some providers are tempted to call this agreement something else. Calling it something else should be avoided at all costs because the point of the agreement is to serve as evidence that the provider-patient relationship has been established.
The use of admission agreements should be accompanied by an agency policy and procedure that makes it clear that only patients who have signed agreements are the responsibility of agency staff.
If, however, staff members determine that patients are not appropriate for home care, then no agreement should be signed. Patients should be told that they are not appropriate for home care and that agency staff will not return to provide services. The fact that this information was conveyed to patient must be documented.
Field staff also should:
- Notify referral sources and attending physicians that patients are not appropriate for home care services and document that they have made these notifications.
- Call 911 and ask for transport of patients in need of immediate care to the emergency room. Patients who decline transport likely are to have assumed the risk of any injury they may suffer.
Historically, agency staff members sometimes have acted from the point of view that something in the way of health care services is better than nothing. This tendency must be resisted. When home health agencies undertake care that basically is inappropriate, the risk of legal liability increases substantially.
[A complete list of Elizabeth Hogue’s publications is available by contacting: Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699. E-mail: [email protected].]
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