Interim sued over abandonment claim

Class action suit carries weight of fraud and abuse

ByElizabeth HogueJD

Health Care Attorney

Elizabeth Hogue Chartered

Burtonsville, MD

Home health providers have been concerned for some time about liability for abandonment when they terminate services to patients. These concerns are justified based on a recent class action lawsuit filed against the Nashville office of Interim Services.

Headquartered in Ft. Lauderdale, FL, Interim Services Inc. is a leader in the staffing industry with 697 offices in North America, Asia, and Europe.

Hospital-affiliated directors and their freestanding agency counterparts should be concerned because of the implications of fraud and abuse inherent in Medicare’s appropriate utilization provisions. This, of course, becomes magnified in light of the loss of venipuncture services and reduced levels of reimbursement, which could foster more cases of termination of services to patients.

In Winkler, Bell and Maves et al v. Interim Services, Inc. Circuit Court for Davidson County, TN, Civil Case No. 470-4033, 1997, patients sued the agency alleging that Interim attempted to
discharge patients who were considered to be economically undesirable under the new interim payment system.

The patients include two elderly diabetics, both Medicare beneficiaries, one of whom is blind. Another patient is partially paralyzed with multiple sclerosis.

The case against Interim

The patients claim that in anticipation of changes in Medicare payment levels that went into effect Jan 1, 1998, Interim reviewed its patients and identified those whose disabilities and care needs made them less lucrative under the new rate structure. Based on this review, the patients say that Interim created a "hit list" of economically undesirable patients to be dumped from its caseload. Patients also claim that Interim has already discharged and is planning to discharge those on the hit list.

In these allegations, the patients claim
that Interim violated the contract rights of Medicare patients as stated in the Conditions of Participation. They also argue that such actions result in a violation of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, common law abandonment, outrageous conduct, breach of duty of care, and the Tennessee Consumer Protection Act. The patients are requesting a jury trial, damages in an amount to exceed $10,000, and reimbursement for costs and attorneys’ fees.

The patients’ case states that by discontinuing, or threatening to discontinue, their medically necessary home health services, in which Interim knew that there were not adequate provisions for their continued professional care, the provider breached its duty of care to patients. According to the patients, Interim is liable for abandonment.

Based on this pending lawsuit, agency staff members might conclude that they cannot terminate services to patients without incurring liability for abandonment. On the contrary, home care providers can terminate services to patients without incurring liability for abandonment as long as they keep the following in mind:

• Proof of abandonment requires patients to show unilateral termination of the provider-patient relationship by the provider without reasonable notice when further attention is required.

• Patients must prove all of the requirements of this definition in order to prove abandonment.

• When patients and providers mutually agree to terminate the relationship, there is no liability for abandonment. Providers should seek mutual agreement when third-party payers such as the Medicare program will not pay for needed services by offering patients the option to private pay for care.

• In the absence of state regulation, reasonable notice may be determined only by taking into account the facts and circumstances of individual cases. Factors to be considered include the patient’s physical and mental condition, financial resources, availability of alternative sources of care, what the patient wants, and whether supportive individuals are available to assist the patient. A good rule of thumb is that services can be terminated to most patients in three to five days.

• Notice of termination should be given in writing and hand delivered to the patient by a
messenger.

• Violence or threats of violence are grounds for immediate termination. Determinations that patients are no longer homebound may also justify immediate termination. If patients are no longer homebound, it means they can seek care from other sources.

• Throughout the notice period, practitioners should spread the risk, which means notifying protective services or initiating involuntary commitment proceedings.

• Whether further attention was needed is determined retrospectively based upon whether or not patients were injured as a result of the termination of care.

Now is the time for home care staff to become educated about abandonment so that they can successfully negotiate another potential land mine.

[Editor’s note: For a more in-depth analysis of abandonment and a complete set of policies, procedures and forms to use to avoid abandonment, send a check for $105 to Elizabeth E. Hogue, Esq., 15118 Liberty Grove Road, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699.] n