“Between 1967 and 1985, the number of agencies certified to participate in the Medicare program grew by more than three-fold from 1,753 to 5,983.”¹ However, by the mid-1980s, the number of Medicare certified home care agencies stabilized at about 5,900 — which was directly related to the increasing burdens imposed by Medicare paperwork and unreliable payment policies.¹ These burdensome problems led a coalition of U.S. Congress members, consumer groups, and the National Association for Home Care (NAHC) to file a lawsuit against the Health Care Financing Administration (now known as the Centers for Medicare and Medicaid Services [CMS]) in 1987.¹ The successful outcome of the lawsuit provided the opportunity to revise home care payment policies, which led to a significant increase in the utilization of Medicare’s annual home care benefit and the number of home care agencies grew to more than 10,000.¹

This growth did not last. In fact, the number of home care agencies declined significantly after 1997. At the end of 2003, there were 7,265 Medicare-certified home health agencies in the U.S. NAHC believes the 30.4% decline in agencies since 1997 is the direct result of changes in Medicare home health reimbursement enacted as part of the Balanced Budget Act of 1997 (P.L. 105-33).¹ The Balanced Budget Act of 1997 (BBA) required a change in the way Medicare-certified home health agencies were reimbursed for their services from a fee-for-service system to a prospective payment system (PPS). This led to significant reductions in the reimbursement amounts agencies receive from Medicare.¹ Those agencies that survived saw their budgets reduced significantly and had to find ways to adapt to the PPS and the financial burdens it imposed. In addition, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) further reduced the increases CMS could give Medicare home health agencies in recent years. The percent increase for 2006 is only 2.8%.² In this climate of continued fiscal restraint, it is important that home care nurses continue to provide care that is both cost-effective and legally prudent.

Familiar patient situations can take on dangerous new characteristics for nurses who shift their practice from hospitals to homes. Once easily negotiated within the protected confines of a hospital building, incident reporting, negligence, and patient abandonment on the outside create unique liability exposures that place nurses at risk for lawsuits. When new and experienced caregivers venture into the home care environment, they need to recognize areas of potential liability and identify effective means for preventing, eliminating, or at least minimizing risk factors.

Radical changes over the past decade have altered the practice environment of home health nurses. They now use technology that once only existed in intensive care units. They may be responsible for instructing family members and other caregivers how to manage ventilators, ambulatory dialysis, and continuous infusions of vasoactive drugs and other intravenous (IV) therapies. And innovative home-based programs, such as cardiac recovery programs for coronary artery bypass graft (CABG) surgery and crisis intervention of psychiatric patients, have added new sophistication to home care.

A lack of control over their work environment — the patient’s home — further contributes to the legal exposure of home health nurses. In the hospital setting, stringent policies and accreditation standards ensure the well-being of patients and staff by guiding infection control, safety, and the operations of departments like dietary, housekeeping, and central supply. In the home care setting, financial resources, insurance coverage, and the physical layout of the home — factors over which nurses have little control — may determine the ability of staff to maintain clean and safe living space for patients and to provide adequate supplies.

Although federal guidelines and accreditation organizations mandate the infection control procedures of home care agencies, hygiene is partly dependent upon the capability and cooperation of patients and their families. For example, an instruction in wound care to a patient’s caregiver may emphasize handwashing prior to the procedure, as well as the importance of maintaining a clean work area for the dressing change. However, if a caregiver chooses to ignore these directions and the patient develops an infection, accountability may still settle on the home care nurse, who may be accused of negligence.

Legal basics to nursing negligence

Negligence occurs when a person is harmed because of another person’s failure to exercise a standard of care that a reasonable person of ordinary prudence would follow under the same circumstances. Malpractice is negligence by professionals engaged in a professional activity. Malpractice occurs when a reasonable or prudent professional departs from a prevailing professional standard of care with harmful consequences to the party under care.

To prove that a health care provider is negligent, thus constituting a malpractice action, a plaintiff must satisfy four elements: duty owed, breach of duty owed, injury or damage, and causation.

The first element, duty owed, is presumed to exist when a provider accepts a patient for home care and initiates that care. After establishing this relationship, the provider then owes the patient a duty to provide reasonable care. Generally, a standard of care legally defines this duty and the caregiver is expected to possess and exercise a degree of knowledge, skill, and judgment that other providers with the same experience and expertise would use in similar circumstances.

Standards of nursing care arise from many sources. Generally, standards are found in recommendations of professional organizations, agencies’ policies and job descriptions, textbooks and periodicals, federal regulations, and state nurse practice acts. Groups that set standards specific to home health care nursing include the American Public Health Association (APHA), public health nursing section; the Association of Graduate Faculty in Community and Public Health Nursing; and the National League of Nursing (NLN). The American Nurses Association has also published the Scope and Standards of Public Health Nursing Practice (1999) and the Scope and Standards for Home Health Nursing Practice (1999). Accreditation standards by the Joint Commission for the Accreditation of Healthcare Organizations (JCAHO) and the Community Health Accreditation Program (CHAP), a subsidiary of the National League of Nursing (NLN), are also strong measures against which home health care performance can be compared in a malpractice suit.

The second element required in a malpractice suit, breach of duty owed, occurs if a provider’s care falls below the standard of a reasonable caregiver under similar circumstances. For instance, a home health nurse, who noticed an odor from a sacral pressure ulcer while providing wound care to a slightly febrile patient, failed to notify the physician. The patient, a frail, 83-year-old female with multiple health problems, subsequently developed sepsis and died two weeks later after being admitted to the hospital. In this situation, the nurse, who committed a breach of duty by not notifying the primary provider of clinical changes, did not act as a prudent home health care nurse.

The patient must have suffered some type of injury or damages to satisfy the third element necessary to bring a malpractice suit to court. In this case, the elderly patient with the ulcer ultimately died.

The last element, causation or establishing the reason for the injury, is the most significant challenge faced by the plaintiff in negligent cases. Causation can be divided into cause in fact and proximate cause. Cause in fact confirms that the breach of duty actually caused the injury, demonstrating a factual connection between the event and the injury. In lawsuits, court officials use the term proximate cause to indicate a legal causal relationship, which establishes that within reasonable probability (more likely than not) the breach of duty (departure from the accepted standards of nursing care) caused the injury. For example, in this case study, although the nurse did not directly cause the death, failure to notify the physician of clinical changes did have an impact on the patient’s outcome. If the nurse had contacted the provider immediately with the clinical findings, antibiotic therapy may have been provided to stave off the fatal sepsis.

Limiting liability

Home health care agencies rely on strong risk management programs to reduce liability exposure. An effective program gives staff the confidence and tools needed to provide quality service within the realm of reasonable risk-taking behavior. The scope of risk management varies from agency to agency. Some providers restrict programs to clinical functions that involve care and service to patients. Other providers structure their approaches more broadly to encompass activities that could result in loss or injury to staff and others or damage the reputation of the agency. Two areas that affect home health nursing staff are incident reporting and termination of services.

Incident Reporting: The usual method of identifying areas of risk in home care is through concurrent reporting on incident reports. Typical, reportable incidents are —

• Patient falls
• Equipment failure
• Unexplained absence of a caregiver
• Medication errors
• Skin breakdown
• Allegations of theft, neglect, or abuse
• Disputes between staff and patients/caregivers
• Unexplained patient death

Incident reports are a means to report unusual occurrences associated with the care of a patient; they are a valuable record if completed at the time of the event when memories are clear. In most instances, home health staff is required to report and document an incident within 24 hours. Follow-up with the appropriate personnel, such as a nursing supervisor, usually takes place as quickly as possible.

Nurses and other home health staff make a valuable contribution to patient care through reporting incidents. By tracking incidents and identifying areas of risk for patients, the agency can take preventive steps to avoid reoccurrence. For example, a high number of incident reports filed after patient falls could trigger in-service education for staff and better instructions for patients to avert future mishaps.

However, the filing of an incident report, which may be consistent with agency policy, cannot substitute for documenting the event in the patient’s home health record. For instance, if a patient falls while ambulating under the supervision of a nurse, a brief factual account of the occurrence should be documented. Assessment and follow-up with a primary provider, as well as instructions given to the patient, need to be included. However, the progress note should not note the filing of an incident report or place blame on any staff member. Such references could lead a plaintiff’s attorney to request the incident report in the discovery phase of a lawsuit.

Termination vs. Abandonment: Home care providers risk legal liability when they terminate services to patients, especially if the patient does not agree with the discharge plan. As payers become more aggressive about controlling the costs of health care services, agencies may be more likely to encounter instances in which they must stop services because they cannot continue to provide care without payment and patients cannot afford to pay for the services out of pocket. Actual or threatened violence, noncompliance by patients or primary caregivers, or inappropriateness for home care may also warrant termination of services.

Home health providers need to know how to protect themselves against appearing as if they are “abandoning” the patient in these situations. Patients who want to hold home care providers liable for abandonment need to show that the provider terminated the relationship unilaterally, without reasonable notice, and when further attention was needed.

CMS requires home health agencies to use a standard form to notify patients (beneficiaries) prior to providing or changing needed items or services Medicare is likely to deny.³ This requirement for advance notice is part of the Beneficiary Notices Initiative (BNI). The form is called a Home Health Advance Beneficiary Notice (HHABN) and it can be downloaded from the CMS website.⁴ The purpose of the notification procedure is to protect both the beneficiary and the agency from financial liability.

There are three situations that would warrant issuing the Home Health Advance Beneficiary Notice (HHABN):

Initiation of Services — A situation in which a home health agency (HHA) “expects that Medicare will not pay for the services that a physician has ordered” and the agency advises the beneficiary that he or she will not be accepted by the agency as a Medicare patient.⁴ The notice must be issued before the agency provides any services to the patient.

Reduction of Services — A situation in which a HHA “expects that Medicare will not pay for a subset of home health services, or for any services at the current level and/or frequency of care that the physician has ordered.”⁴ The agency may not reduce its services to the beneficiary until the HHABN is given to him or her.

Termination of Services — A situation in which a HHA “expects that Medicare will not continue to pay for the services that a physician has ordered” and the agency proposes to terminate all home health services to the beneficiary.⁴ Again, the agency is required to issue the notice prior to terminating services.

The HHABN is not applicable to situations where the physician has not ordered care or where care is reduced or terminated in accordance with a physician’s order.⁴

When patients terminate relationships directly with providers and everyone is in agreement, the provider has no liability. However, in instances where patients are repeatedly not home for scheduled visits, the patients themselves are terminating the relationship. Patients who are unavailable for a specified number of visits according to agency policy must be notified that they have constructively terminated their relationship with the agency. Patients must be notified of this policy upon admission to the agency for services. The staff field nurse needs to leave a written notice at the patient’s home when a scheduled home visit is missed. In most home care organizations, a limit of two or three missed visits is reasonable to merit discharge from services. Following discharge, the patient must receive written notice from the agency that the case is now closed. The discharge needs to be documented in the patient’s home health record, and the physician must be notified.

Liability may be generated when terminating services involves patients whose insurance no longer covers home health care. To avoid liability in this situation, offer patients an opportunity to pay privately. When patients’ insurance no longer covers care, they have the right to know and understand choices in receiving further home care visits. Even if nurses believe that patients cannot afford to pay, they should make the offer anyway because patients may have resources about which the nurse is unaware. Clearly document both the offer and the patient’s response. Accurate documentation tends to defeat subsequent claims of abandonment, because in this case, the patient, not the provider, terminated the relationship.

A reasonable time frame for notice of termination can be viewed on a continuum. For example, on one end of the spectrum are patients or their caregivers who are violent or prone to violence. The home care provider is justified in discontinuing services immediately if the staff feels threatened or is in danger. On the other end of the spectrum are patients with mental illness or poor judgment; few economic resources; and no able, available, and willing caregiver. In these cases, where the agency is unable to meet care needs, but the patient may suffer injury without the service, hold a conference with all involved disciplines to develop a discharge plan. Submit a referral to community resources, such as Adult Protective Services, as soon as a potential for patient injury is identified. A discharge date two to three weeks in advance can be set with the patient. Once the date arrives, the nurse needs to terminate care as discussed with the patient. If a potential for injury if the agency discontinues care exists, the agency should arrange for an ambulance to transport the patient to a hospital. If the patient refuses, he or she has terminated the relationship. Document discharge planning and the patient’s response, including refusal of transportation to the hospital, in the patient’s record.

Defensive documentation

A unique, but often frustrating aspect of working in home health care is the emphasis placed on documentation. As the practice of this nursing specialty has increased in complexity, so too have factors that influence documentation, including state and federal regulations, accreditation standards, and legal entities. In addition, numerous third-party payers make quality and reimbursement decisions based on activities documented in the home health record. All services that are delivered by the nurse, including risk management activities, need to be carefully documented. The written or computerized home health record is a nurse’s best defense against negligence litigation.

There are numerous tips for defensive documentation (some of which may apply to handwritten documentation, computerized documentation, or both) that can help the home health nurse as well as nurses working in most other settings. These include:

• Write legibly or print neatly in a handwritten record. The notes must be readable. Poor grammar and incorrect spelling should be avoided.
• Use black ink in a handwritten record; it photocopies better.
• Identify the time and date on every progress note; sign the entry (manually or electronically, if using a computerized record) with your title.
• Document all teaching and instruction provided to the patient and/or caregiver. Include responses.
• Use agency-approved abbreviations only.
• Be factual and specific.
• Do not discuss agency problems or staff issues in a patient’s note.
• To correct an error in a written record, draw a thin line through it. Write “mistaken entry” above and sign your initials over it. Follow the agency-approved procedures for correcting computerized records.
• Never completely cover a mistaken handwritten entry with ink or any other substance, such as white-out.
• Make sure telephone calls and other communications with physicians, community agencies, and other team members are documented. The documentation should explain what occurred with the patient, what actions were ordered or modified, how they were implemented, and the outcome for the patient.

Legal issues affecting the home care industry are numerous and deserve further study by nurses who are working or planning to practice in the field. The home health care nurse practicing today should be service-oriented, flexible, clinically strong, and legally aware. Keeping abreast of changing issues in this specialty and acquiring the necessary professional tools and education are the keys to providing safe and ethical care, within professional standards, to our patients.