LegalEase: Base documentation on OASIS assessment

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

Most home care staff members now understand the importance of accurate completion of the Outcome and Assessment Information Set (OASIS) in terms of reimbursement to agencies. But OASIS assessments do not exist in a vacuum. Subsequent documentation of care rendered must include all of the needs of patients identified on OASIS assessments or explanations for the lack of care provided.

What are possible consequences of failure to provide these types of documentation?

• Agencies and staff members may face legal liability for substandard care. Home health agencies have operated "under the radar" of attorneys who represent patients and their families against health care providers for many years. The cat is now out of the bag.

More attorneys now perceive that agencies are another pocket that they can pursue to obtain larger damage awards for their patients. As a routine matter, attorneys will be able to gain access to patients’ records in order to support malpractice cases against agencies and their staff members. When an attorney’s review shows that agencies identified clinical needs on OASIS assessments that were not appropriately addressed, and the patient suffered injury or damage as a result, such discrepancies will support patient lawsuits. Consequently, inconsistencies between OASIS assessments and subsequent documentation of care provided will increase the risk of legal liability for agencies and staff members.

• Agencies also may face possible decertification from participation in Medicare and Medicaid as a result of discrepancies between OASIS data and care rendered. Identification of clinical needs of patients on OASIS assessments that are never addressed during the same episode of care may mean that patients are at risk of harm. Serious issues related to substandard care likely are to result in condition-level deficiencies on statements of deficiencies that support a decision by the Centers for Medicare & Medicaid Services (CMS) to deny agencies participation in the Medicare/Medicaid programs.

• Inconsistencies between OASIS assessment and care provided to patients also raises the possibility that agencies and staff members may be perceived to engage in fraudulent conduct. Specifically, the False Claims Act has been interpreted to mean that agencies submit claims only for medically necessary and appropriate care. If claims are submitted for what appears to be substandard care because care rendered does not meet the needs of patients as identified on OASIS assessments, regulators may conclude that agency staff members engaged in fraudulent conduct.

• Individual practitioners involved in instances of discrepancies between OASIS assessments and subsequent care also risk disciplinary action by state licensure boards, including loss of their licenses to practice.

What should agency managers do to avoid these possible consequences?

• Agency managers should conduct an inservice program to share this information so field staff members understand the importance of consistency between OASIS assessments and documentation of care provided. This point should be reinforced periodically using a variety of mechanisms that might include articles in in-house publications and reminders included in envelopes with staff members’ payroll checks.

• Agency managers also should make certain that staff members responsible for quality of care evaluate whether OASIS assessments are reflected in both plans of care and documentation of care that actually was rendered. Specifically, staff must make certain that every clinical need identified in OASIS assessments is accounted for in plans of care and in documentation of care provided, such as visit notes. This review ideally should occur before a final claim is submitted. Careful review will go a long way toward avoiding the consequences described above.

The prospective payment system continues to require radical change in the home care industry. Regulators now have the tools to make more accurate evaluations of the care provided by agencies. Agency staff members must, therefore, be more vigilant than ever with regard to inconsistencies in patients’ records.

[For a complete list of Hogue’s publications contact:

Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699. E-mail:]