LegalEase

Avoid negligence charges with adequate supervision

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

Home care is different from institutional care in a number of ways. One crucial difference is field staff members essentially are working without direct supervision on a routine basis. The cost of providing direct supervision for staff as they provide services to home-care patients clearly is prohibitive. Consequently, providers are vulnerable to claims that they failed to adequately supervise staff. These claims may include allegations of negligence and fraud and abuse.

Perhaps the greatest risk involves staff members who say they made visits that they really did not make. When visits are missed, changes in patients’ conditions may not be addressed. Visits that are claimed but turn out not to have been made after all also are a common basis for allegations of fraud and abuse. However, in view of inherent limitations on agencies to directly supervise field staff, what is the applicable standard of care that must be met? Generally speaking, appropriate supervision means that agencies must make reasonable efforts to ensure that field staff meet applicable standards of care.

Reasonable efforts to ensure adequate supervision may include the following:

• New employees may be required to make several visits with experienced employees with proven track records so that any deficiencies in abilities or practices of new staff can be determined as quickly as possible. The results of these visits, of course, must be documented.

• Agencies should develop and implement a policy and procedure that requires random supervisory visits. Thereafter, managers should make "unannounced" supervisory visits to patients’ residences at all hours of the day and night so that employees understand that they may be directly supervised at any time without notice.

• Managers also may wish to investigate systems that are available commercially to track the arrival and departure of field staff members at each patient’s home. These systems may require staff to place a telephone call that registers in a computer when they arrive at patients’ homes and again when they depart.

These systems are, of course, not foolproof. Instances in which staff members paid patients and/or family members to call in for them as though the worker arrived and departed patients’ homes already have been reported. But to the extent that the use of such systems makes it clear that agencies are using reasonable means to help verify that services actually were rendered, even if the system is circumvented, helps to ensure that agencies adequately have managed risks associated with visits that are not made as scheduled.

• Agencies also should develop and implement policies and procedures that require patients and/or someone else present in patients’ homes when visits are made to sign a document verifying that services were provided. If the patient cannot sign and no one else is present to sign, staff should be required to provide a detailed explanation for missing signatures.

• Quality assurance staff should conduct retrospective audits to make certain that signatures from patients and/or family members verifying services are obtained routinely. When there are a number of instances when specific staff members failed to obtain signatures as required despite the presence of a written explanation, further investigation must be conducted to determine why signatures are missing on multiple occasions.

• Agencies should continue to use patient satisfaction surveys to assist them to satisfy their obligation to monitor workers. Agency staff members sometimes observe correctly that most of the surveys returned by patients fall into a category that can best be described as "We love our nurse." Nonetheless, valuable information occasionally can be gleaned from surveys. For example, a patient of an agency responded to a survey by saying that he was very pleased with the care provided, but wished that the agency would not send a different nurse every day.

The staff initially were quite puzzled by this response since their records showed that the same nurse had visited the patient each day. Following further investigation, however, staff were astounded to learn that the agency worker was subcontracting the care of the patient to members of an extended family so that, indeed, the patient was being cared for by a different "nurse" each visit.

It is impossible for agencies to duplicate the supervision provided by institutional providers. Nonetheless, every reasonable effort that agencies can demonstrate to show that they provided adequate supervision of field staff will work in their favor when workers’ performances are scrutinized.

[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: ehogue5@comcast.net.]