Home care lawsuits stress need for staff education

Teach nurses how to discharge patients properly

Several national lawsuits filed against the U.S. Department of Health and Human Services (HHS) claim Medicare is leaving many sick patients out in the cold. Some of the lawsuits place blame on the Baltimore-based Health Care Financing Administration's (HCFA's) interim payment system (IPS); one lawsuit blames home care agencies for terminating services of chronically ill Medicare patients without proper notification. (See story on four lawsuits, p. 152.)

The lawsuits share one common goal: to shake up Medicare and convince the government to make some changes that are more consumer-friendly. Meantime, experts say it's more important than ever before that home care nurses and administrators understand how to terminate services properly. The wrong course of action could even lead to a civil suit filed against the agency itself.

"There's a right way and a wrong way to do things, and indiscriminately terminating services for people is not the right way to remain a good provider," says Michael Walker, administrator of Continuing Care Home Health Services in Harrisonburg, VA. The full-service agency serves 13 counties in Northwestern Virginia.

One way to make sure things are done right is to hold an inservice on termination of services. Continuing Care Home Health Services, for example, recently invited Elizabeth Hogue, Esq., a Burtonsville, MD, health law attorney, to meet with staff and discuss the topic.

"The issue of determination of services is one that many in the home care industry take very seriously, much to their credit," she says. "Consequently, my experience has been that because agencies are taking this issue seriously, we're really doing it right in most instances."

Hogue has closely followed issues related to termination of services, including attending a July 29 HCFA meeting on the subject. HCFA called the meeting to address the Healey lawsuit, which is one of the suits filed recently against HHS. The Healey lawsuit claims that confusion and misinformation about Medicare reimbursement rules have forced some Medicare beneficiaries into nursing homes when their home care providers unnecessarily terminated their services.

The HCFA meeting addressed several key issues relating to termination of services, Hogue says:

o HCFA officials have suggested the home care industry could use a standard notice to send to Medicare beneficiaries when services are terminated for noncoverage by Medicare.

o When providers wish to reduce services to Medicare patients, they must ask the physicians to alter the orders. If the physicians disagree, they must either carry out the plan of care as it exists or discharge the patient.

o Medicare regulations require agencies to decline to provide services that are no longer reasonable and necessary, even if the physician continues to order them. Of course, Hogue explains, deciding what's reasonable and necessary will be difficult until national standards of care are developed relating to certain disease processes.

o Agencies must request a demand bill from intermediary Medicare payers when beneficiaries ask for them. But, Hogue says, intermediaries often take several months to provide one of these determinations of whether services are covered. So by the time the agency receives a response, the patient's condition may have changed, and it's a meaningless determination. She adds that HCFA officials acknowledged this is a problematic situation, but it offered no solutions.

Law emphasizes termination procedures

IPS has muddied the waters for agencies trying to decide when to limit or terminate services for Medicare patients. Although some lawsuits were filed this year against agencies that have discharged large numbers of chronically ill Medicare patients, home care agencies have less to fear from abandonment claims than from Medicare fraud and abuse investigations, Hogue says.

"I make it clear to our clients that they shouldn't provide services if there are doubts about coverage," she says.

Agencies should use their own judgment to determine whether a client's services are appropriate. And if they believe the services do not meet Medicare's requirements, they should discuss this with the physician and not provide the service.

Also, federal law does not mandate that home health agencies must continually serve a patient for as long as the patient needs care. However, federal law does require agencies to follow certain procedural steps before terminating services.1

Agencies need clear policies

As these issues continue to be ironed out by HCFA and battled in court, home care agencies should continue to teach nurses about the most appropriate ways to discharge patients.

"All of us have to be more educated about the rules and regulations now," says Judy Morris, RN, director of professional services for Continu ing Care Home Health Services. "It's important we learn everything we can about how things are going to work with IPS. Communication and education are our two biggest words right now," she says.

Morris and Walker offer the following suggestions on what to teach staff about abandonment and termination of services:

1. Cover homebound status. A Medicare patient may leave the home for short periods of time infrequently, Morris says. Also, Medicare standards say people are considered homebound if they have a normal inability to leave home independently or require considerable, taxing effort to leave home. Absences from home must be infrequent, of short duration, and mainly for medical care.

If patients begin to leave home frequently for social activities without taxing efforts, or if they can drive a car, they are not considered homebound. For example, patients might not be considered homebound if they go to a day care center for nonmedical purposes or if they go out frequently to eat dinner at a restaurant.

When nurses discover that patients are carrying on this type of activity, they should notify the agency. The agency then can refer the patient to outpatient services, Morris says.

2. Explain about noncompliant patients. Noncompliant patients might be those who are not staying within the guidelines of the plan of treatment. For instance, if a diabetic patient refuses to follow a physician's instructions to avoid certain foods, then the patient is noncompliant.

When home health professionals are doing everything they can, and patients are not doing their part to get better, then it becomes difficult to help them become independent again, Morris says.

Noncompliant patients may lose their eligibility for home health services paid by Medicare, and then agencies will have to discharge them, Walker adds. It's becoming increasingly common to see patients who think home care will take care of them as long as possible, even when they may be better served by outpatient facilities, he says.

3. Go over the agency's guidelines. Agencies should have written policies and procedures about how to terminate or reduce patient services. Continuing Care Home Health Services, for example, has the following policies:

o The agency holds a case conference on possible termination cases. The people providing care, such as nurses, physical therapists, aides, and others, are brought together to discuss whether this patient is appropriate to be discharged, Morris explains.

"It's kind of a brainstorming session where you look at all the angles to make sure everyone agrees this needs to happen," she says. "Then we document the case conference."

o Next, a nurse verbally notifies patients that they are being discharged from home health services. The nurse explains why this is happening, and usually patients receive three to five days' notice.

o Then, the agency notifies the physician and includes the date and time of termination.

o Finally, the agency sends the patients a written verification of the termination notice, and staff continue to provide services until the specified termination date.

"Sometimes you can give the patient names of other health care agencies to contact, and we could give them community resources," Morris says.


1. Dombi WA, St. Pierre M. Interim payment system and patient & provider rights. CARING 1998; February:38-42.