Legal Risks for Case Managers Highlighted at 2019 CMSA Conference

Case managers could be at risk relative to discharge planning.

While not significantly common, hospital case managers have been named in nursing malpractice suits, primarily in association with discharge planning.

Attorneys Jessica L. Gustafson, Esq. and Abby Pendleton, Esq. from The Health Law Partners, P.C. discussed this issue and other legal risks case managers can encounter at the Case Management Society of America’s (CMSA’s) 29th Annual Conference and Expo, which took place recently in Las Vegas.   

Complaints associated with discharge planning can involve allegations that the patient was discharged before they were medically stable enough to leave the hospital, or that services or supplies required in the outpatient setting were not provided. Ultimately, most cases against case managers are dismissed. These dismissals are usually the result of comprehensive documentation by the case manager, not only involving the plan of care throughout the course of the patient’s hospitalization, but also specific reasoning for the medical decision-making that initiated the plan of care. Additionally, documenting specific conversations with the patient, family members, and the rest of the care team is imperative to capture the dynamic nature of the evolution of the plan of care.

Another area of risk for case managers involves the Health Insurance Portability and Accountability Act (HIPAA). According to Pendleton, “when it comes to HIPAA and case managers, it really boils down to common sense.” 

Even though HIPAA has been around for 23 years, the Office for Civil Rights (OCR) pursuits of enforcement have increased significantly in the last decade. This is because in 2009, an obligation was set into place for individuals to report internally if protected health information (PHI) was inadvertently shared with the wrong person or place. Each facility has an obligation to take specific mitigation and investigatory steps to investigate each incident, determining if there is a need to notify the patient, media, or OCR. In general, most prosecutions involving HIPAA center on cases in which PHI was intentionally sold for profit or other gains, as opposed to situations involving unintentional disclosure of information.

One session attendee recounted a situation in which a rehabilitation facility patient was utilizing an Amazon Alexa device in their room. The concern expressed was that technically, the device is always recording. So, discussions about the patient’s medical condition between the patient and the care team were, in theory, being sent to who-knows-where in the Amazon cloud. Gustafson and Pendleton remarked that if the patient is the one bringing in the device and they are aware (supported by signed documentation) that there could be an issue with privacy, for which the facility is not liable, the facility should be covered. However, it was emphasized that this type of situation should not be allowed in the case of an individual sharing a room with another patient.

Cases involving the federal Anti-Kickback Statute typically center on healthcare transactions not usually encountered by case managers. But Gustafson and Pendleton explained the basic concepts, which all case managers should understand. Generally, it is illegal to knowingly offer to pay directly or indirectly in cash or gifts, be involved in a trade of goods or services, or offer free or discounted services in exchange for referring patients for care or services. It is also, of course, illegal to accept cash or gifts in exchange for the referral of patients. 

In other words, this statute applies to the individual who pays the kickback, in addition to the individual who accepts the kickback. This can include anyone involved with the patient or the patient’s care, including the case manager. For example, if a case manager has the responsibility of referring patients to Skilled Nursing Facilities (SNFs), hospice, or home health for their continued care, post-hospitalization, and they are paid by a facility or agency to direct more patients there, both the facility/agency and case manager are in violation of the statute.

“There could be 20 legitimate reasons for making a specific recommendation,” Gustafson said, “but if one is to receive goods or services or payment, it’s a kickback.”

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