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Patient Abandonment and Face to Face Encounters


Today I have the opportunity to share with you some wise thoughts regarding a potential risk associated with Physician Face to Face encounters that hadn’t occurred to me before. Thanks to Elizabeth Hogue, we can take pre-emptive steps to avoid liability related to patient abandonment.

Face-to-Face Encounters: Avoiding Liability for Abandonment

Elizabeth E. Hogue, Esq.
Office: 877-871-4062
Fax: 877-871-9739

E-Mail: ElizabethHogue@ElizabethHogue.net

Providers are at risk for legal liability when they terminate services to patients.  Termination of services has historically been warranted by the following circumstances, among others: violence or threatened violence, noncompliance by patients and/or primary caregivers, inability to provide adequate assistance, or inappropriateness for services.  Providers are understandably concerned about the possibility of legal liability associated with the termination of beneficial services.

Specifically, they frequently express concern about the possibility of liability for abandonment of patients.  The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS), the primary enforcer of fraud and abuse prohibitions, has indicated that abandonment of patients may also constitute fraudulent conduct.

Providers now have new concerns regarding liability for abandonment in light of requirements for face-to-face encounters.  Specifically, providers may not be paid for services rendered if patients have not had appropriate face-to-face encounters with physicians during required time periods.  It is important, therefore, for providers to understand how to terminate services without liability for abandonment.

Practitioners often speak of abandonment as though it is equivalent to termination of services.  On the contrary, patients who want to hold providers liable for abandonment must show that:

  1. Providers unilaterally terminated the provider/patient relationship;
  2. Without reasonable notice;
  3. When further action was needed.

Patients who fail to prove any one of these requirements are likely to lose their lawsuits against providers.

The second requirement of abandonment provides a key basis for avoiding liability for abandonment.  Providers will not be liable for abandonment as long as they give patients reasonable notice prior to termination of services.  The key question is: what is “reasonable” notice, especially in view of new face to face encounters?

Many providers historically viewed thirty days as the minimum number of days required for reasonable notice.  This period of time is too long for most patients, including patients who have not had required face-to-face encounters.  A more reasonable period of time for most patients, unless a specified period of notice is mandated by state statute or regulation, is probably one to three days.

After staff members agree upon a reasonable notice period, patients and attending physicians should receive verbal and written notice.  Written notices should be hand-delivered to patients’ homes.  Although it is desirable, it is unnecessary to obtain a signature verifying receipt.  Written notices to physicians should be faxed to them.

When the date for termination of services arrives, providers must terminate care as planned.  Practitioners are sometimes tempted to continue in the face of pleas from patients, physicians, and/or family members.  Providers must bear in mind, however, that their organizations, whether for-profit or not-for-profit, simply cannot afford to render unlimited amounts of uncompensated care.  The consequence of lack of attention to fiscal limitations may be the disruption or unavailability of care to many patients.

Finally, providers can defeat claims of abandonment if patients for whom services are discontinued need no further attention.  How do providers know whether further attention is needed?  Is this requirement as subjective as it appears?  On the contrary, judges are likely to make retrospective determinations about whether further attention was needed.  The basis for such determinations will probably be whether patients were injured as a result of termination.

In other words, the law is likely to conclude that no further attention was needed, so long as patients are not injured as a result of termination of services.  What kind of injury must patients prove?  Can patients who attempt to prove emotional damage only as a result of termination of services by case managers win lawsuits?

The “good news” for providers is that courts generally require proof of physical injury or damage before they will find providers liable for abandonment.  Providers must, therefore, take appropriate steps to make certain that patients are not physically injured as a result of termination of services.  In rare instances, appropriate action may include sending an ambulance to take the patient to the nearest hospital.  If the patient refuses transport by ambulance, the patient will have been contributorily negligent or will have assumed the risk, so providers are likely to avoid liability.

Now is the time for providers to educate themselves about the possibility of liability for abandonment.  Positive steps must be taken in order to prevent this type of legal liability in view of the uncertainty of the impact of requirements for face-to-face encounters.

(To obtain a complete set of policies and procedures to use in order to prevent liability for abandonment, send a check for $105.00 that includes shipping and handling made out to Elizabeth E. Hogue, Esq. to Fulfillment, 107 Guilford, Summerville, SC  29483.)

© 2011.
Elizabeth E. Hogue, Esq.  All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.
4 Comments Post a comment
  1. Isabelle, RN #

    I always read your blogs and find them to be very
    educational and interesting. I have also known of Ms. Hogue for 8
    years now and always find the information that she shares very
    valuable. She is remarkably knowledgeable and I am glad we have
    someone of her stature looking out for our interests in home health
    care. Thank you very much!

    Like

    January 10, 2011
  2. Mary River #

    “Many providers historically viewed thirty days as the minimum number of days required for reasonable notice. This period of time is too long for most patients, including patients who have not had required face-to-face encounters. A more reasonable period of time for most patients, unless a specified period of notice is mandated by state statute or regulation, is probably one to three days.”

    Oh really??? One to three days? It would take that long or longer for some of the mail to reach the patient since you mention sending the notice via snail mail. How about one to three months! Even a one month is much too short these days to obtain followup care and to arrange for a new practitioner to see the patient. What happened to compassion and wanting to help patients heal? What happened to the Hippocratic Oath, First Do No Harm? Abandoning patients with one to three days notice is unconscionable!

    Like

    January 27, 2012
    • I am going to send this to Elizabeth to ensure that she sees it. I know exactly what you are saying. Add to the delay in mail, half of them can’t read. But, as inconvenient and cumbersome as the documentation is regarding f2f, it has not been a problem for most of my clients. One thing that really irks me is picking up an admission and not knowing what happened that resulted in an admission to home care. I see it every day. Did the patient just wake up and want to join a home care?

      Patient recruitment has always confused me, to be honest. I know what is ethical and unethical and no, we don’t go door to door trying to ‘sign up’ up patients. Well, at least most of us don’t. But there are a lot of grey areas and oddly enough, it is us clinicians who are most likely to inadvertently cross the line. My friend, Chris Johnston, another healthcare attorney, made me a list of what we can and can’t do. I plan on posting it next week. But, the very word, ‘recruitment’ confuses me.

      From what I gather there are a number of people who are currently residing in prison who bypassed the physician altogether in marketing. The patient was approached directly and the physician was sent a plan of care and it was signed like every other plan of care that the doc never reads. The F2F prevents this or at worst, makes it easier to catch.

      I cannot tell where you live and certainly every community is different. It should not require very long to transfer care in MOST cases. Why would a patient have a sudden need for home health services if they haven’t seen an MD?

      If they have seen the MD and he or she is slow about completing the paperwork, that is a problem but not one that should result in discharge. The face to face can be written based upon a visit in the past. So, if you know that you admitted a patient after being seen by the MD for an exacerbation or new diagnosis, then it is a matter of convincing the MD to complete the paperwork. I suggest non-lethal weapons such as Tasers and pepperballs because if he didn’t sign the F2F, chances are there are other orders that haven’t been signed. Also note that if the patient dies, there is an exception but no exception if the MD dies there is no exception. That’s probably a good thing and has saved many physicians from a violent death.

      The one huge exception that can be very problematic is a patient who is on services with another agency and wants to leave that agency because of a complaint. There is no exception for this situation so if you get a referral for a patient transfer from an MD office, be sure to tell the person calling in the referral that the patient will need to be seen within 30 days.

      Like

      January 27, 2012
    • Elizabeth Hogue #

      Mary,

      First, the article clearly states that notices must be hand-delivered to patients, not send via “snail mail” as you suggest in your reply. They must be hand-delivered. I simply do not understand how you could miss such a clear statement. Agencies are not obligated to arrange for follow up care and to arrange for a new practitioner to see the patient unless regulations in the state in which the Agency provides services requires agencies to do so. I do not know of any state that has such requirements. One (1) state that I am aware of requires agencies to refer patients for other appropriate care but not necessarily to put alternate sources of care in place. I think it is also important to think about the fact that if face-to-face requirements are not met, it is because patients have not seen their physicians as they probably should. Agencies should be concerned about patients who don’t see physicians on a timely basis as should physicians. Discontinuing services in 1-3 days has not caused any harm to patients in numerous cases in which we have been involved. In fact, discontinuation of services may galvanize some patients and their families to better meet the needs of patients. Elizabeth

      Like

      January 29, 2012

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