Medicaid changes may affect nursing ethics

(Editor’s note: This is the second of a two-part LegalEase column that addresses home health agency concerns related to changes in state Medicaid programs. This column looks at nursing implications and violation of ethical principles. Last month’s column presented background on the Medicaid reimbursement crisis and described Medicaid program changes that can affect home health agencies with charges of fraud and abuse, risk of legal liability, and loss of professional licensure.)

As state Medicaid Programs look for ways to save money, they may attempt to establish mechanisms that are intended to force RNs to delegate tasks contrary to state practice acts or to nonlicensed providers who may cause harm to patients.

For example, a state Medicaid program recently indicated that licensed practical nurses (LPNs) would be required to administer intravenous (IV) therapies to Medicaid patients. Such a delegation of authority was clearly contrary to the state nurse practice act and ultimately was rescinded.

Perhaps even more sobering, however, are ongoing attempts by state Medicaid programs to force RNs to delegate tasks to unreliable individuals who may harm patients.

For example, programs may require agencies to delegate the administration of medications to unlicensed individuals without regard to the complexity of patients’ medication regimes and the ability and/or reliability of these individuals.

When unreliable caregivers are responsible for administration of medications and fail to administer them according to patients’ plan of care, the risk of legal liability and loss of licensure for RNs and other licensed professionals, including the patients’ attending physicians, is unacceptably high.

Both agencies and individual RNs are responsible for supervising individuals to whom they
delegate nursing responsibilities and have continuing accountability for the acts and omissions of caregivers under the legal theory of respondeat superior, which means the boss must answer to the actions of employees.

Consequently, when individuals fail to carry out their responsibilities and patients are harmed as a result, both agencies and individual RNs may be liable for negligence. In addition, RNs risk discipline, including loss of licensure, by state nursing boards. Such risks further may exacerbate the shortage of nursing personnel. State boards of nursing clearly have indicated that nurses must leave jobs and seek other employment when risks of harm to patients and/or deviations from appropriate standards for delegation of nursing functions exist.

Ethical issues

A key ethical principle for payers and health care providers alike is that patients are entitled to justice. As a matter of justice, patients are entitled to appropriate care. Appropriate care clearly includes adherence to patients’ plans of care. But when staff at home health agencies fail to adhere to patients’ plans of care because they do not have preauthorization in advance of scheduled visits, the result for patients clearly is unjust. Likewise, when nursing tasks such as administration of medications are delegated without regard to the reliability of individuals performing these functions, the result may be that patients do not receive appropriate care consistent with applicable plans of care. Again, the result is unacceptable from an ethical point of view.

The principle of distributive justice also is applicable to the actions of state Medicaid programs. Distributive justice means that Medicaid patients as a whole receive their due. When difficulties with prior authorization and delegation produce unacceptable risks for providers, the result likely is to be unjust for patients in the form of a reduced or total lack of access to care.

What should providers do to address the crisis in state Medicaid programs? The following recommendations will help:

  • Providers should recognize that difficulties they experience with state Medicaid programs related to payments, results of audits, compliance activities, and changes in regulatory requirements may be part of larger efforts on the part of the programs to save money. Difficulties should be shared with state home care associations and with colleagues so that they can address them more effectively from the point of view of the ultimate goal of the programs.
  • Consider legal action. The home care association in North Carolina sought and obtained an injunction to prevent implementation of the requirements described in the previous paragraph. Other states may have success with lawsuits, too. If the likelihood of success is great, providers should consider providing extra dollars to state associations to fund efforts to address these issues.
  • Since the real goal of the programs may be to save money, providers may wish to consider if there are ways to achieve this ultimate goal without compromising quality and access to care. Providers may, for example, be able to pinpoint areas in which programs can save money without compromising services to patients. If such solutions can be identified, providers should share these possibilities with the staff of programs and assist with implementation.

Are home care providers targets?

Home care providers may legitimately wonder why they are the target of many attempts to save money when other segments of the health care industry, such as long-term care facilities, for example, may receive Medicaid monies in far greater amounts than those received by the home care industry.

The answer may be that when long-term care facilities and other institutional providers close due to fiscal difficulties, state and federal officials are confronted with the problem of what to do with patients. But when home care agencies close, the patients just seem to disappear. Although this may seem like a practical explanation that at least borders on cynicism, some regulators have occasionally verbalized this rationale. In other words, home care providers and patients may be "easy pickin’s" as compared to institutional providers.

The next major area of concern for home care providers may very well be the payment, audit and recoupment, and other practices of state Medicaid programs. Providers must remain vigilant on this front.

[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.]