LegalEase: Ensure proper referrals from hospital owners

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

Home care providers have a duty to assess patients for appropriateness for home care prior to admitting them for treatment. Current standards of care require an evaluation of several factors prior to admission. Just because patients meet the eligibility criteria of their payer source, such as the Medicare program, does not mean they are appropriate for home-care services.

When agencies fail to evaluate patients prior to admission or make inappropriate admission decisions, they violate applicable standards of care and may be legally liable for their decisions. They also may jeopardize their financial success.

Home-care agencies owned by hospitals often are under great pressure to accept inappropriate referrals since their primary referral source has authority over the decisions that are made. In fact, it often is fair to say that hospital home-care providers are tempted to use home-care agencies as a "provider of last resort," or perhaps even a "dumping ground," to limit their financial losses under DRGs and capitation payments. Hospital home-care providers must work to open the lines of communication with hospital management so that they are not forced to take patients who are inappropriate for home care and, therefore, subject agencies and their staff members to unnecessary risks of legal liability.

Applicable standards of care require home-care providers to evaluate a number of factors. Some of the most important factors that agencies should assess as they try to determine whether to admit patients are the patient’s clinical condition, the availability of a reliable primary caregiver, and the environment in which patients reside.

The types of care rendered in patients’ homes have changed dramatically so that care that previously was provided only in institutional settings, such as intravenous therapy and parenteral and enteral nutrition support, now are provided in patients’ homes. There still are certain clinical conditions that cannot be treated at home. Patients with systemic infections, for example, often cannot be managed in the home. Applicable standards of care require home-care providers to assess patients’ conditions before initiating care in order to determine appropriateness from a clinical point of view.

The limitations of home care from a clinical point of view are often unclear to hospital personnel or ignored by them. Hospital staff members tend to take the attitude that hospital home-care providers should take any patient referred to them by hospitals, regardless of clinical condition, to limit financial losses to hospitals under prospective payment and capitation systems.

Inappropriate patients increase liability

On the contrary, the standards of care in this regard are the same for freestanding as well as hospital-based providers. Regardless of ownership, home-care agencies are required to appropriately assess patients and refuse to admit those who cannot receive appropriate care in the home-care setting. When agencies fail to do this, they are attempting to care for patients who require a more intensive level of care. Needless to say, general principles of risk dictate that caring for patients at inappropriate levels of care greatly increases the risk of care rendered.

Home-care providers also must evaluate the capabilities of primary caregivers prior to admission in order to determine appropriateness for home care. In some case, patients may be able to care for themselves. But in many instances, home-care patients require assistance from third-party caregivers. Prior to admission, home health agencies must determine that third-party caregivers are capable of assisting with patients’ care and available and reliable to provide needed care. Patients who live alone, therefore, may be inappropriate for home care because of the lack of availability of a primary caregiver. Likewise, patients who reside with family members who are employed full time outside the home may be inappropriate for home-care services.

Legal and ethical imperatives require home-care staff to correctly assess this factor and to make decisions to admit patients based on their assessments whether or not they are freestanding or hospital-owned. Again, applicable standards for primary caregivers often are misunderstood by hospital management.

The environment in which patients reside also is a key consideration for admission. Home-care providers may encounter unheated residences or homes that are heated in unsafe ways — given the fact that patients are receiving oxygen. Home-care providers have reported that they see rats gnawing on the intravenous tubes of patients residing in environments that are not conducive to home care.

Despite the lack of understanding by some hospital personnel, however, the standards of care for hospital-based home-care providers are the same as for freestanding agencies with regard to conditions in patients’ homes. Home-care providers are required initially to evaluate patients’ homes for appropriateness and continuously monitor the environment to ensure that patients in home care will be adequately supported.

Thus, there clearly are defined standards that govern admission of patients to home care and the availability of care on a continuing basis. These standards do not vary depending on ownership of home-care agencies; they are the same regardless of affiliation. Hospitals that put pressure on agencies to ignore applicable standards subject both the hospital and the agency to significant risk of legal liability.

Educate hospital referral sources

What strategies can hospital-based providers use to encourage hospitals to recognize inherent limitations placed upon home-care staff regarding appropriate patient admissions? Ongoing programs of education and continuous communication may help reduce pressures on hospital-based agencies.

Educational programs should be initiated before another situation arises in which hospitals put tremendous pressure on agency personnel.

Consideration of the issues apart from emotional confrontation over particular patients is most useful. These programs should be directed at discharge planners, physicians who have privileges at the hospital, and top management of hospitals, at a minimum. They may include inservice programs, presentations at quarterly medical staff meetings, and retrospective review of case examples at management meetings.

One-on-one communication is another important key to the process of limiting risk through avoidance of admission of patients inappropriately. The home health model of care radically is different from institutional care in terms of the degree of control over patients and their environments that can be exercised.

Hospitals have maximum control while home health agencies often have little or no control. It often is difficult for hospital personnel to bridge the gap between the two kinds of care in this regard. It never occurs to them that patients may reside in environments that simply will not support the provision of adequate care.

The process of assisting them to acknowledge some of the limitations of home care may be long and arduous. Share a copy of this article with key players in the hospital. Keep them abreast of particular problems encountered by agency staff. Invite them to make home visits with staff to experience what home care is all about on a firsthand basis.

Hospital home health agencies often find themselves between a rock and a hard place when it comes to admission decisions. Some hospital staff members do not understand that basic support must be available to provide home-care services. The process of education and communication needed to close the knowledge gap between home care providers and hospitals is just beginning. The message must be sent loud and clear that agencies cannot legally and ethically serve as providers of last resort for patients hospitals want to discharge.

[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:]