Lengthy Difficult Patient Discharges From the Acute Care Setting Issues, Pitfalls and Strategies

Transcription

1 Lengthy Difficult Patient Discharges From the Acute Care Setting Issues, Pitfalls and Strategies Gena C. Peyton and Jeremy Harris, Sutter Health Office of the General Counsel and Kat Todd, Schuering Zimmerman & Doyle, LLP 1

2 Overview The complex setting Pitfalls and strategies for common issues Capacity Behaviors Resources 2

3 The Complex Setting Laws and Regs Expecta(ons Nature of services 3

4 Common Issues 4

5 Capacity 5

6 Patient Lacks Medical Decision-Making Capacity ü Required for decision making either to accept or reject medical care ü Physicians assess capacity Best case advance directive or verbal appointment Worst case court, county involvement ü Transfer/discharge require consent in most cases as part of discharge planning process 6

7 Conservatorships Probate Prob. Code: Typically used for individuals suffering from dementia or other organic disorder affecting capacity LPS LPS Act (Welfare & Institutions Code 5350): Typically used for individuals gravely disabled as a result of mental disorder or impairment by chronic alcoholism 7

8 Patient Lacks Medical Decision-Making Capacity Psychiatric Condition not Organic Public Guardian LPS Conservatorship Secure perimeter required / Involuntary placement and no conservator Yes No Organic (dementia, anoxic brain injury, etc) Developmental disability (existed prior to age 18) Authorized Surrogate decision-maker or next of kin involved? Yes No Public Guardian Probate Conservatorship Regional Office Lanterman Developmental Disability Services Work with appropriate decision-maker(s) for discharge placement and needs Public Guardian Probate Conservatorship 8

9 When the Individual Appointed Conservator Won t Act Prob. Code 2102: Conservators are subject to the regulation and control of the court in the performance of the duties of the office. Prob. Code 2359(a): Upon petition of the guardian or conservator or ward or conservatee or other interested person, the court may authorize and instruct the guardian or conservator or approve and confirm the acts of the guardian or conservator. 9

10 When the Public Guardian Won t Apply For Conservatorship Limited ability to compel a county conservator to conserve an individual. Prob. Code 2920: The public guardian shall apply for appointment if: there is an imminent threat to the person s health or safety or the person s estate or the court so orders. 10

11 When the Public Guardian Won t Apply for Conservatorship Prob. Code 2920, cont: The court may make an order on behalf of any county resident who appears to require a guardian or conservator, if it appears that there is no one else who is qualified and willing to act, and if that appointment appears to be in the best interests of the person. LPS Act: Kaplan v. Superior Court (1989) 216 Cal.App.3d

12 When the Family or County Won t Act Consider Petition for Authorization of Medical Care Without Conservator: Prob. Code 3200: Request court authorization for medical care, including a transfer to another facility, when patient lacks capacity and there is no surrogate 12

13 Acquired Traumatic Brain Injured Patients Acquired traumatic brain injury is an injury that is sustained after birth from an external force to the brain or any of its parts, resulting in cognitive, psychological, neurological, or anatomical changes in brain functions. [Welf. & Inst. Code 4354(a)] 13

14 Acquired Traumatic Brain Injured Patients Welfare and Institutions Code 4353: The Legislature finds and declares all of the following: a) There is a large population of persons who have suffered traumatic head injuries resulting in significant functional impairment. b) Approximately 80% of these injuries have occurred as a direct result of motor vehicle accidents. 14

15 Acquired Traumatic Brain Injured Patients c) There is a lack of awareness of the problems associated with head injury resulting in a significant lack of services for persons with head injuries d) Although there are currently a number of different programs attempting to meet the needs of the persons with head injuries, there is no clearly defined ultimate responsibility vested in any single state agency. Nothing in this section shall be construed to mandate services for persons with acquired traumatic injury through county and city programs. 15

16 Traumatic Brain Injured Patients Placement and Funding Issues Challenges to Placement Limited Facili(es Resources Good health May need locked perimeters Medi-Cal Waiver Programs Age Highly behavioral Not eligible for County or State Mental Health Facilities TBI Programs Focus on reintegrating individual back into society 16

17 Resources 17

18 Resources Homelessness Resource Issues Medical Special Needs Non-Medical Special Needs 18

19 When helping isn t helpful The SNF will take the patient if we agree to pay for the first three months at 150% of Medicare rate. (And, the SNF contracts with the hospital s outpatient lab for its patients 90% of which are Medicare/Medi-Cal patients.) 19

20 When helping isn t helpful The federal anti-kickback statute makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services payable by a federal health care program. 20

21 When helping isn t helpful Remuneration includes transfers of items or services for free or for other than fair market value. 21

22 When helping isn t helpful The Medicare patient says he will only go home if the hospital pays to install a wheelchair ramp and remodel his bathroom to make it easier for him to enter the shower. (The patient has the same conditions and abilities as he did before admission, has plenty of money and thinks it is the hospital s responsibility if they want [him] to leave.) 22

23 When helping isn t helpful Beneficiary inducement: Federal civil monetary penalties are assessed against any person who gives something of value to a Medicare or state healthcare program (including Medicaid) beneficiary that the benefactor knows or should know is likely to influence the beneficiary s selection of a particular provider, practitioner, or supplier of any item or service for which payment may be made, in whole or in part, by Medicare or a state health care program including Medicaid. 23

24 When CAN We Help? The Health Care and Education Reconciliation Act of 2010 amended the Patient Protection and Affordable Care Act s definition of remuneration by adding a new exception for any other remuneration which promotes access to care and poses a low risk of harm to patient and Federal health care programs as designated under regulations. 24

25 When CAN We Help? The OIG proposes updating the definition of remuneration in the inducement Civil Monetary Penalty regulations at 42 CFR 1003 by adding statutory exceptions for: certain remuneration that poses a low risk of harm and promotes access to care and certain remuneration to financially needy individuals. 25

26 But still The answer is hardly ever black and white 26

27 When CAN We Help? SSA 1128A(A)(5) Remuneration Exception Criteria 1. The item or service is not advertised or solicited. 2. The item or service is not tied to the provision of other services reimbursed in whole or in part by Medicare or Medi-Cal. 27

28 When CAN We Help? Criteria, cont. 3. There is a reasonable connection between the items or services and the medical care of the individual. 4. It is determined in good faith that the individual is in financial need. 28

29 Resources Homelessness Communicate with available community resources; motel Resource Issues Medical Special Needs Non-Medical Special Needs Identify Resources Assist in paperwork Facilitate outside sources Utilize checklist to avoid penalties 29

30 Behaviors 30

31 Behaviors Pa(ent Staff Family or surrogate 31

32 Behaviors Behavior Issues Patient has capacity refusing placement Uninvolved or non-compliant surrogate decision-maker 32

33 Process Framework 33

34 Response Process 1. Establish care team 2. Early identification and process trigger 3. Consistency 4. Documentation 34

35 Response Process Establish Care Team Attending MD Physician Leadership as needed Nursing Social Work & Case Management Risk Security Psych (as appropriate) ED (as appropriate) Outside social worker or case worker CMO or Administration 35

36 Response Process Identification and Triggers Potential/actual complex condition Change from home to care setting Disabling/life limiting condition Multiple specialty care needs High cost medications/outpatient needs History/repeat admissions 36

37 Response Process Consistency Whole team needs on the same page to what care is rendered and the schedule of that care Behavioral issues discussed and unified approach developed when addressing or caring for the patient Directive care patient must be informed of and consent to care, but team should address patient with treatment plan that maximize patient s wellbeing and lessens opportunities for conflict Focus patient on recovery and desire to be as independent as possible 37

38 Response Process Documentation 38

39 Behavior Strategies Ensure patient understands needs Behavior Issues Patient Has Capacity Refusing Placement Uninvolved or Non-compliant surrogate decision- maker Empathetic interactions with patient and surrogates Consistency among team members Perform medical / psych evaluations as needed Make sure patient is ready for discharge and that an order is written Involve social services Written notice of financial responsibility including amount charged to patient/day Refer to Public Guardian office if: 1) no capacity and 2) surrogate not acting in the best interest of the patient 39

40 Behavior Strategies Begin discharge planning/process at admission or at least at earliest trigger Medicare certification for discharge (appeal rights) Medi-Cal reduces payment, but no real intervention with the patient If patient is stable for discharge, does not need medical care, discuss reduction in services Security escort out of hospital depends on whether the patient is ambulatory, needs continued care Develop good relationship with your ambulance services Consider a contract with a cab or alternative service for hospital paid transport 40

41 Questions? 41