By: Elizabeth E. Hogue, Esq.
As of January 13, 2018, home health agencies must comply with new Conditions of Participation (CoPs). Now is the time to review interpretive guidelines and to be prepared to demonstrate compliance during surveys.
New Conditions of Participation (CoPs) of the Medicare Program for home health require agencies to have internal policies and procedures governing plans of care. The Centers for Medicare and Medicaid Services (CMS) issued draft Interpretive Guidelines for the new CoPs for home health agencies on October 27, 2017. The draft provides information about what surveyors will be looking for when they survey agencies based on the new CoPs for patients’ rights.
Section 484.60(a)(1) Standard: Plan of Care requires agency staff members to take specific action with regard to refusal of services that may impact patients’ clinical well-being and non-compliance as follows:
If the patient or the patient’s representative refuses care (such as dressing changes, essential medication or other services that could impact the patient’s clinical wellbeing) on more than one occasion the HHA attempts to identify the cause of the refusal. If the HHA is unable to identify and address the cause, the HHA must communicate with the patient’s responsible physician to discuss the options.
"There is an old legal adage that “every dog is entitled to one bite.” When an instance of refusal of services that may adversely impact patients or non-compliance has been identified, the “dog” has had its bite!"
Providers may be tempted to overlook repeated refusal of important services and non-compliance on the basis that patients need care. It may be especially difficult to act based on refusal or non-compliance by primary caregivers for home health patients. After all, say some practitioners, patients should not be penalized because of the refusal or non-compliance of their caregivers.
Instead, providers should first carefully document instances of repeated refusal of services and non-compliance as follows:
- Staff must document every instance of refusal of services and non-compliance by both patients and/or their primary caregivers, regardless of the risk associated with the refusal or non-compliant behavior. Agencies cannot possibly know whether the refusal and/or non-compliance has occurred more than once, as required by the draft interpretive guidelines, unless they document each instance.
- Documentation must be very specific. It is insufficient to document as follows: “Patient (or primary caregiver) non-compliant or refused services.” Providers may, for example, document the failure to change the diapers of a bed-bound patient who is incontinent of both bowel and bladder as follows: “RN observed patient with urine and feces in diaper. RN removed diaper, cleaned patient and placed clean diaper on patient. RN marked the right tab of the clean diaper with a red X. When the RN visited the following day, the patient was again observed lying in urine and feces. When the RN removed the diaper, she observed a red X on the right tab of the diaper the patient was wearing when she arrived.”
- Staff must then counsel with patients and/or primary caregivers regarding each instance of refusal of services or non-compliance and document that they have done so.
- If staff cannot identify the reason for the refusal or non-compliance, they must contact patients’ physicians, according to the draft interpretive guidelines.
The number of times practitioners are willing to repeat this “protocol” depends on the risk of injury/damage to patients associated with refusal or non-compliance. If patients are likely to be injured or damaged, providers should not tolerate additional instances of refusal of services or non-compliance after taking the above steps.
There is an old legal adage that “every dog is entitled to one bite.” When an instance of refusal of services that may adversely impact patients or non-compliance has been identified, the “dog” has had its bite!
In some instances, refusal of services or non-compliance may be so serious that immediate termination is warranted. When refusal or non-compliance is serious enough to warrant discontinuation of services, providers may wish to take additional action to protect patients, which may include reports to adult and/or child protective services, as indicated in applicable state statutes. On the other hand, chronic refusal or non-compliance may be acceptable, if it involves very little risk, if any, of poor outcomes or injury to patients.
Providers have always practiced good risk management when they address issues of non-compliance or refusal of services. Now the draft interpretive guidelines make it clear that agencies are required to take action in order to comply with Medicare CoPs, too.
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