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We normally associate case managers with payers, but the function, if not the name, can also apply to the employees of private duty companies. Those who provide services for patients such as assessments, problem identification, planning, monitoring, and evaluating may be considered case managers. In the evolving health delivery system, they may also face legal issues regarding their case management activities, according to Elizabeth Hogue, an attorney specializing in health care in Burtonsville, MD.
"Medicare Conditions of Participation [require] that home care agencies . . . manage the care of their patients, and non-certified agencies routinely enter contracts with managed care organizations that include case management services. But case management is an emerging discipline, and it’s time that all home care providers who are performing case management prepare for legal issues," Hogue explains.
The Case Management Society of America (CMSA) defines case management as a "collaborative process which assesses, plans, implements, coordinates, monitors, and evaluates options and services to meet an individual’s health needs through communications and available resources to promote quality, cost effective outcomes."1
In 1995, CMSA also published The Standards of Practice for Case Management as a guideline for practice excellence and recognition of the changing concept of case management.
With such broad definitions, employees don’t have to hang a shingle to be looked upon as a case manager. "Whether or not they’re certified by the CMSA . . . or they call themselves a case manager, if they’re the traffic cop and coordinate care with physicians or decide when a patient needs acute care, etc., they may be considered a case manager. They may not be the only one [involved with a patient]; there may also be the insurance company case manager. Still, this places an enormous burden of case management and sets very high, broad standards," Hogue says.
"I applaud the CMSA for publishing the standards early on, but we should look at them with an understanding that they’ll be refined and redefined several times. We should also recognize that these are not pie in the sky. Attorneys go into court with these," she continues.
Other groups, including the National Association for Social Workers and the National Association for Professional Geriatric Care Managers, have also published standards.
Some of the potential legal and ethical issues that home care case managers face include:
• With such broadly defined standards, can case managers be held liable for nearly any patient care problem?
• If the treatment team, including the patient and case manager, cannot reach agreement, whose wishes will govern, especially when the case manager’s recommendations are contrary to the payer’s?
• Do continuous monitoring and evaluation requirements mean that case managers are responsible for the quality of care of all providers serving patients in their caseload?
• When patients do not achieve expected outcomes, have case managers violated care standards?
These issues mostly impact case management responsibilities for assessing patient needs, obtaining consent for case management services, and advocating for patient care, according to Hogue. Although they are currently being debated and considered, providers and case managers can manage their risk now in the following areas:
• Assessing patient needs.
Case managers are at risk for overlooking or misevaluating patient problems and needs. "It’s especially hard to do a comprehensive assessment because you don’t have access to crucial records and you’re dependent on patients and families. But if you’re not there 24 hours a day, how do you really assess every time?" Hogue asks.
Make every effort to obtain as much information as possible from patients, family members, and other providers so you will have all you need to fully assess patient needs, Hogue advises.
This may seem obvious, but "I can’t tell you the number of times I get calls, and when I start asking questions, we find all kinds of information that should have been available but isn’t," she says. For example, providers often fail to gather proper information about patients’ mental status.
• Obtaining consent for case management services.
Home care providers obtain informed consent from patients every time they open a case. Case management standards suggest patients must also consent to case management services. Providers can simply amend their consent for treatment forms to include case management services. However, Hogue wonders how this will impact the few patients who won’t consent to case management.
"Some patients may say, I don’t want this. I’m tired of this harassment, all these people calling me and coming to my house.’ If they don’t consent, then have they forfeited access to other services? Because the managed care company may say, If you can’t case manage, then why should we provide services? The way that we provide appropriate services is through case management.’ I’m not quite sure what it means," she says.
• Advocating for patient needs.
The CMSA practice standards also include guidelines for patient advocacy. Case managers are to represent their client’s best interest in such areas as appropriate funding, treatment alternatives, the timeliness and coordination of health services, and frequent re-evaluation of progress and goals. In today’s complicated operating environment, however, home care case managers can be placed between the best interest of their patients and employer, according to Hogue. For example, if a provider has a capitated contract, decisions that benefit a patient may harm the agency financially.
"Many case managers feel that it’s noteworthy that they don’t carry any decision-making role, and that because they’re not making decisions, they don’t have to worry about liability. But payers and providers force decisions," she says.
The best course of action in such situations depends on the circumstances. "They may need to consult with legal counsel or take the dilemma before the agency’s ethics committee," Hogue advises.
Although the concept of case management is evolving, patients will increasingly use professional association practice standards to bolster both liability claims and complaints against professionals’ licenses, Hogue warns. The best protection for both providers and case managers is to be knowledgeable of and responsive to the standards, she advises.
"Regardless of the future of managed care, the future includes case management. Some analysts are beginning to develop a model of community-based health care that puts home care at the center of the delivery system, so it’s appropriate for home care case managers to wonder about their roles and responsibilities from both functional and legal points of view."
1. Center for Case Management Accountability. A Framework for Case Management Accountability. Little Rock, AR; 1997.
[Editor’s note: Copies of The Standards of Practice for Case Management are available from the Case Management Society of America (CMSA) at (501) 225-2229. The document costs $10 for CMSA members; $12 for non-members.]
• Elizabeth Hogue, attorney, 15118 Liberty Grove Drive, Burtonsville, MD 20866. Telephone: (301) 421-0143.