Complaints: Don't just log them.
Posted by: Robert Markette
April 28, 2006

Today I want to pass along a thought on complaint resolution and complaint logs.  All of you who are certified for Medicare and most of you who are subject to state licensure are required to have a means for resolving client complaints.  I have had numerous agencies run into difficulty with this standard and it is almost always for one of two or three reasons.

The first is failure to follow up.  You policies and procedures likely include a policy and procedures on receiving a complaint and following up on the complaint.  If a complaint is logged, you had better have documentation following up on the complaint.  Sometimes, this does not happen.  This can be for any number of reasons up to and including the complainant has also called the state department of health, adult protective services, or law enforcement.  In those cases, the law enforcement personnel may enter you agency to investigate the complaint before you finish your investigation.  This does not eliminate your need to follow your procedures.  

It may mean your follow up notes the APS or police investigation and, while that investigation is ongoing, the employee(s) involved may need to be suspended (consult your personnel policies.)

Regardless of what the follow up entails, you need to follow up and to document that follow up.  In fact, the failure to clearly document your follow up is another common basis for citations for agencies.  You need to have clear documentation that you investigated the complaint and how it was resolved.  If it has not been resolved when you are surveyed, you should still be able to show which steps of your procedure have been completed.  The record should also reflect that you are responding promptly.  If the log shows a complaint, but your records do not show that you followed up for more than a month, you are most likely going to be cited in a survey.

Keep in mind, that the survey may not be your only problem.  If you have an employee who is abusing a patient and you receive a complaint, but fail to properly follow up on the complaint, you may be open to charges for failing to report the abuse to the proper authorities as wall as being liable in a civil action for failing to fulfill you duty to your patients.

If after you perform your investigation, you determine the complaint is baseless, make a record of that.  If you feel the complaint is unresolved, because you are unable to make the patient or the patient’s family happy, remember that resolution of the complaint does not hinge upon the complainant’s feelings.  You may note that you have resolved the complaint, because you investigated it and took action that you deemed appropriate to prevent the issue in the future.  The complaint log should note that the complaint has been resolved as well.

One final point, like everything else in home care, clear, concise documentation is a key to complaint resolution.  The surveyor should be able to look at the record and see that the complaint was received, that there was prompt follow up, and that there was resolution to the complaint.  The surveyor should not see a complaint, with little or no additional documentation.

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Hiring Employees - Criminal Brackgrounds Checks
Posted by: Robert Markette
April 18, 2006

Indiana, like many states, requires home health providers to check employees’ criminal backgrounds before hiring them or, within a very brief time frame after hiring. If an individual has one of the convictions listed in the statute, the agency cannot hire him.  However, this is not a blanket rule against hiring for any position.  In Indiana, the statute only prohibits hiring for what I will call “direct care positions”.  If you wanted to hire an individual with a theft conviction to be on your sales staff, the statute would not prohibit you from doing that.

There is another interesting angle to the statute.  Although theft is a disqualifying conviction, fraud and forgery are not disqualifying convictions.  This means you could hire someone with a fraud or forgery conviction for a direct care position without fear of being cited by ISDH.

You should keep in mind that your clinical staff completes the paperwork you submit in order to receive reimbursement from each of your payor sources.  It might cause you some restless nights to think that this paperwork is being completed by an individual with a fraud or forgery conviction.

This is why the OIG compliance plan, for home health agencies, suggests that HHAs should strictly scrutinize whether it should employ individuals who have been convicted of crimes of neglect, violence or financial misconduct.  I would broaden that even more to include crimes of financial misconduct or dishonesty.  This would include everything from embezzlement to fraud and forgery.  My reasoning is pretty straightforward. 

If an employee falsifies documentation for a visit, the agency will, at a minimum, have to pay back the money.  Not to mention the harm to the agency’s reputation for not performing visits for clients.  By screening employees for convictions involving not just theft, but deceit and/or financial misconduct, the agency is at least making an effort to not put individuals into a position that requires trust and honesty.  This at least lowers the risk of false Medicare or Medicaid claims.

As with theft, a conviction of this nature may not need to be an absolute bar.  If the conviction for financial conduct or deceit was very old, and the record has been clean since then, the individual may not pose as substantial a risk.  The key consideration is that you realize all of the potential risks that a criminal background check shows you.

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Who bathes the hospice patient in the nursing facility?
Posted by: Robert Markette
April 14, 2006

I was on a panel Tuesday at a meeting regarding the provision of hospice services in a nursing facility.  One of the issues that were of concern to the providers was who bathes a nursing facility resident who is receiving hospice services.

I have always felt this was a question of whether the bath is related to the terminal illness, as that is the primary consideration in provision of hospice services.  The speakers for the state seemed to say it was their position that if the hospice was not providing the baths, it was a condition level deficiency.

My understanding was that this was based upon the notion that Home Health Services are core services for hospice and, therefore, not delegable to the nursing facility.

I have had a chance to consider this further and to discuss the issue with other individuals and have come to the following conclusion.  CMS does NOT think the hospice shouldalways provide the bath, but should only provide the bath if it is related to the terminal illness.  As a practical matter, the surveyors will most likely presume that bathing is related to the terminal illness and expect the agency to provide it. 

However, if bathing is not related to the terminal illness, the hospice provider should not be providing the bath.  The IDG needs to assess the patient and determine whether bathing is a necessary part of hospice care.  If it is not, the hospice and the nursing facility need to document it and the nursing facility needs to provide the care.

For hospice providers that are concerned that they are passing on 100% reimbursement and then providing services the nursing facility should provide, perhaps negotiating less than 100% reimbursement as a reflection of the hospice taking on bathing or reflecting in the contract that bathing is performed by the nursing facility, unless related to the terminal illness would ways to address this issue.

Neither the hospice nor the nursing facility should ever simply say – the hospice bathes the patients or the nursing home bathes the patients.  Doing so runs the risk of a recoupment, or worse.

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