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By John C. Gilliland II
Gilliland & Associates
Written policies are a fact of life in health care and home health agencies seem to drown in them. They may be required for reimbursement, for licensure, or simply for management or legal reasons. They concern many subjects ranging from nursing policies to personnel policies and everything in between.
When they are well-drafted, written policies can be very helpful to achieve desired conduct and standards of performance. However, when they are not, they can lead to misunderstandings and unintended legal liability. A poorly drafted policy may be worse than no policy at all. Following a few simple tips can improve your agency’s written policies dramatically:
1. "Draft" polices; don’t "write" them. You have probably heard lawyers speak of drafting a document or policy. They do not say they are writing one. There is a difference. When writing, you are communicating, but typically, you are not worrying too much about using just the right word or making sure your meaning is not misunderstood.
In contrast, drafting employs a specificity that we usually do not use in everyday life. It is not legalese. It is being sure the words you use have the meaning you want them to have and that what you say has only one meaning. As you put together your written policies, draft them rather than write them. Be sure you say exactly what you mean. Can the word you use be misunderstood? Can someone reading the policy be sure what it means? Have all potential situations been addressed?
2. Think before using 100% words. Words such as "always," "never," and "ensure" are "100% words. They permit no exceptions. Before you use such words in a policy, be sure they are what you really mean.
3. Avoid "puffing."Often home health managers do not realize the agency’s written policies can be used as evidence in a lawsuit to establish the standard of care the agency will be required to meet. In other words, what you say can come back to haunt you. Thus, if a policy says it is "to ensure the highest quality of care possible," it may be used to establish a higher legal standard for your agency than would otherwise be the case. Can you really "ensure" anything when working with human beings? "Highest" means far above the norm — there are no equals. Many things are "possible" but not practical. Similar problems can arise from the word "best." Think of it this way: If you say it, you should expect to be bound by it. Watch out for adjectives and adverbs. They often are unnecessary puffing and can be deleted without affecting the substance of the policy.
4. Permit exceptions. Although you should always think the policy through and try to address situations that can arise, no policy can contemplate all the possible, unique situations that could occur. Still, a court may very well hold your agency to what the policy says. Therefore, recognize in the policy itself, or on an introductory page to the overall policy manual, that situations can arise that would lead to deviations from policy or exceptions to usual procedures and conduct.
5. Pay attention to the meaning of words. Be sure the words you use mean what you think they do. Check their dictionary meanings if you are unsure. For example, many people say "emergency" when they really mean "unforeseen circumstances." The two are different concepts.
Also, consider the meaning of words in the context in which they are used. For example, a policy may say that something is to be done within so many days. It seems clear enough until you think about it. What kind of days? Calendar days or work days? If work days, work days of whom — the employer, the employee, the supervisor? In most cases, things are much clearer to always refer to calendar days.
Remember, too, that "shall" is mandatory and "may" is permissible. Be sure to use the one you really intend. A similar distinction exists between "must" and "should."
6. Use consistent terminology. Put aside everything you learned in creative writing. Your purpose is not to be interesting. It is to convey accurate directives. Adopt consistent terminology and use that same terminology whenever you are referring to the same concept. If you change terminology, a court will assume you meant something different. Otherwise, why would you have changed how you said it?
7. Avoid words that invite disagreement. Some words invite disagreement, such as "reasonable" and "substantial." In the utmost of good faith, persons can still disagree over what is reasonable or substantial.Try to avoid using those types of words. Instead, come to grips with the issue and say what is expected.
8. Avoid ambiguity. Be sure the policy is internally consistent so ambiguity is avoided. A common example of that is a policy that switches between calendar days and months when referring to the same thing. For example, in referring to the same time period, in one place the policy may refer to 90 calendar days and in another to three months. They are not the same, thus they create an ambiguity in the policy.
9. Have someone else read the policy. You may know what you meant when you wrote a policy. But does anyone else? Your intention means little next to the words that were actually written. If a policy is unclear, a court will interpret a policy against your agency because you wrote the policy. Have someone who is not close to the policy and its concepts read your draft and tell you what they think it says. It is amazing how quickly this step will identify areas that need clarification or rewriting.
10. Be sure it is legally correct. If the policy addresses a subject with legal implications, be sure your final draft is reviewed by an attorney acquainted with the subject involved. It is very common for legal aspects to be overlooked or misunderstood.