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By Elizabeth E. Hogue, Esq.
The Centers for Medicare and Medicaid Services (CMS) has issued guidelines that will govern Case Mix and Adverse Event Outcome Reports. CMS intends to use Outcome and Assessment Information Set (OASIS) data transmitted by all home health agencies as a "reference sample" to compare data for individual home health agencies with regard to both case mix and adverse event outcomes.
CMS’s development and use of Adverse Event Outcome Reports raises a number of significant legal issues for home health agencies:
1. CMS defines an adverse event as a low frequency negative or untoward event that potentially reflects a serious health problem or decline in health status of an individual patient.
According to CMS, adverse events are "markers" of quality of care provided by agencies. In other words, by definition, adverse events are similar to what many agencies often call "incidents" that may be caused by the failure of agencies to provide appropriate care that in turn resulted in an adverse result for patients. Substandard care may also constitute fraud and abuse.
Many agency managers will immediately recognize that placing information regarding adverse event reports in certain individuals’ hands is potentially problematic for agencies. Specifically, if patients, their families, and their malpractice attorneys have access to information regarding agencies’ Adverse Event Outcome Reports, agencies could be subjected to liability for adverse events. Regulators may also use adverse event reports to pursue allegations of fraud and abuse against providers.
The fact that CMS regards certain events as "adverse" may reinforce the appropriateness or even serve as the basis for lawsuits against agencies and fraud investigations.
In addition, the material CMS published regarding these reports does not indicate whether this information will be available to patients, their families, or perhaps the general public. But there is certainly cause for concern about this issue in view of the fact that CMS says the information will be used by surveyors during the survey process. Home care managers can readily envision circumstances in which surveyors quote directly from agencies’ Adverse Event Outcome Reports or perhaps even attach copies to Statement of Deficiencies.
Since Statements of Deficiencies are public information and readily available to the public, not to mention to patients and their families, agencies have legitimate concerns about the implications for good risk management based CMS’s use of these reports.
2. Agencies should also be concerned about several of the specific adverse events that CMS has indicated will be routinely included in agencies’ Adverse Event Outcome Reports. Events include:
3. Although it is clear that agencies should not admit or continue services to the types of patient described above, agencies cannot always tell whether there is a reliable paid or voluntary resident caregiver, especially when patients are newly admitted.
CMS may also attempt to use Adverse Event Reports to prevent agencies from discharging patients after admission when circumstances make it clear that patients do not have paid or voluntary resident assistance. If such circumstances occur, agencies always should bear in mind that, if all efforts fail to find appropriate placement for patients, including patients’ refusal to accept appropriate referrals to other levels or care, agencies can discharge patients and have them transported to the local hospital emergency department.
Implementation of the prospective payment system for home health agencies will continue to present new challenges for agencies. Savvy agency managers will promptly modify current practices in order to avoid pitfalls.