1 gena c. peyton and jeremy harris, sutter health office of the general counsel and kat todd,...

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Gena C. Peyton and Jeremy Harris, Sutter Health Office of the General Counsel

and

Kat Todd, Schuering Zimmerman & Doyle, LLP

Lengthy Difficult Patient Discharges From the Acute

Care SettingIssues, Pitfalls and Strategies

Overview

• The complex setting

• Pitfalls and strategies for common issues

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Capacity

ResourcesBehaviors

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The Complex Setting

Nature of services

Expectations

Laws and

Regs

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Common Issues

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Capacity

Patient Lacks Medical Decision-Making Capacity

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Required for decision making – either to accept or reject medical care

Physicians assess capacity•Best case – advance directive or

verbal appointment•Worst case – court, county

involvement

Transfer/discharge require consent in most cases as part of discharge planning process

Conservatorships

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• Prob. Code: Typically used for individuals suffering from dementia or other “organic” disorder affecting capacity

Probate

• LPS Act (Welfare & Institutions Code § 5350):

• Typically used for individuals gravely disabled as a result of mental disorder or impairment by chronic alcoholism

LPS

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Patient Lacks Medical Decision-Making Capacity

Secure perimeter required /

Involuntary placement

and no conservator

Yes

Psychiatric Condition – not

Organic

Public Guardian – LPS

Conservatorship

Organic (dementia, anoxic brain injury,

etc)

Public Guardian – Probate

Conservatorship

Developmental disability (existed prior to age 18)

Regional Office – Lanterman

Developmental Disability Services

NoAuthorized Surrogate

decision-maker or next of kin involved?

Yes

Work with appropriate decision-maker(s) for discharge placement

and needs

NoPublic Guardian –

Probate Conservatorship

When the Individual Appointed Conservator Won’t Act

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•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.

When the Public Guardian Won’t Apply For Conservatorship

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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.

When the Public Guardian Won’t Apply for Conservatorship

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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 1354

When the Family or County Won’t Act

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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

Acquired Traumatic Brain Injured Patients

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“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)]


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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.


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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.”

Traumatic Brain Injured Patients – Placement and Funding Issues

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Challenges to Placement

Good health

Age

Highly behavioral

Limited Facilities

May need locked

perimeters

Not eligible for County or State Mental

Health Facilities

Resources

Medi-Cal Waiver

Programs

TBI Programs

Focus on reintegrating

individual back into society

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Resources

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Resources

Resource Issues

Homelessness

Medical Special Needs

Non-Medical Special Needs

When helping isn’t helpful…

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“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.)


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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.


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“Remuneration” includes transfers of items or services for free or for other than fair market value.


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“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”.)


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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.

When CAN We Help?

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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.

When CAN We Help?

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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.

But still…

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The answer is hardly ever black and white

When CAN We Help?

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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.

When CAN We Help?

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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.

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Resources

Resource IssuesHomelessness

Communicate with available community resources; motel

Medical Special NeedsIdentify ResourcesAssist in paperwork

Facilitate outside sourcesUtilize checklist to avoid penalties

Non-Medical Special Needs

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Behaviors

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Behaviors

Patient

Family or surrogateStaff

Behavior Issues

Patient has capacity – refusing placement

Uninvolved or non-compliant surrogate decision-maker

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Behaviors

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Process Framework

1. Establish care team

2. Early identification and process trigger

3. Consistency

4. Documentation

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Response Process

Establish Care Team

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Response Process

• 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

Identification and Triggers

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Response Process

• 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

• 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

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Response Process

Consistency

Documentation

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Response Process

Behavior IssuesPatient Has

Capacity – Refusing

Placement

Uninvolved or Non-compliant surrogate

decision- maker

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Behavior Strategies

Ensure patient understands needs

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

• 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

Behavior Strategies

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Questions?

1 gena c. peyton and jeremy harris, sutter health office of the general counsel and kat todd,...

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