Facility Investigations: Medical Directors Should Know the Rules
by Meg LaPorte and Kathleen M. Wilson
JOURNAL OF THE AMERICAN MEDICAL DIRECTORS ASSOCIATION 2002;3:H38-H39
Although investigations and prosecutions of skilled nursing facilities by federal and state government agencies are on the rise, medical directors can take some immediate steps to minimize liability risks for themselves and their facilities. That was the message from James Geary, an attorney with the California law firm of Hunter, Richey, Di Benedetto, & Eisenbeis, LLP, and co-presenter of the medical direction workshop, Role of the Medical Director when Authorities Appear at the Door.
Creating protocols--such as designating who should be notified when an agency representative arrives at the door, what can be told to authorities, and when to notify an attorney--is one way a medical director can shield himself and the facility against risk, said Mr. Geary.
Mr. Geary and co-presenter James Lett, III, MD, CMD, Vice President of Medical Services at Geriatrix in San Diego, CA, and president-elect of AMDA, described the scope and authority of the governmental agencies that investigate skilled nursing facilities and suggested ways that medical directors can use this information to their advantage in the event of an investigation.
A New Game
Agencies Authorized to Investigate SNFs
- US Attorney General Office
- Office of the Inspector General
- Survey (annual; complaint generated)
- State Attorney General Office
- Operation Guardian
- State Licensing Boards for Health Care Professionals
- Local/County/State Police and/or Sheriff
- Private/Public Entities
- Patient Advocate or Ombudsman
- Local Private Attorney
Although state and federal agencies have different roles and responsibilities when it comes to facility investigations, there is considerable sharing of information among them, said Mr. Geary. "A few years ago, a complaint investigation would have resulted in a surveyor inspection through the state health department--a relatively manageable event," he noted.
Today, however, this kind of information is frequently transferred to other agencies in the state--among them, the state attorney general's office. In California, the state attorney general's office has a special unit that investigates abuse and fraud claims related to healthcare providers. Because units look only at criminal activity, every allegation put in front of them is considered a potential crime, Mr. Geary warned.
"In light of this highly charged atmosphere, medical directors should refocus their thinking from simply looking at these [investigations] as events that could lead to a civil claim or a CMS Civil Monetary Penalty to something that could become a criminal investigation by another agency."
The U.S. Attorney General's office and the Office of the Inspector General (OIG) are the two key federal agencies authorized to investigate Medicare-certified facilities. At the state level, the survey agency, attorney general's office, and the licensing boards are empowered to investigate facilities and follow-up on complaints. Patient advocates, ombudsmen, and private attorneys have also been known to perform investigations.
Although the medical director's personal files do not come within the state surveyor's jurisdiction, federal and state Medicare/Medicaid agencies have access to all patient records. Likewise, federal and state surveyors conducting complaint investigations generally have access to everything at the facility, including medical records, staff, and residents.
Many state licensing boards do not have access to the facility's records without a subpoena or warrant. However, Mr. Geary noted that "I have seen many boards obtain investigation files from the Department of Justice and the state departments of health services."
Role of the Medical Director
One of the first things a medical director should do is alert the facility that an investigation may happen. Although this is not an everyday occurrence, the number of complaints and convictions has risen significantly in the last several years, according to Mr. Geary. For example, 4 years ago in California there were approximately 869 investigations of elder abuse by the attorney general's office. Four people were charged, and no one was convicted.
Role of the Medical Director
- Discuss the possibility of authorities investigating the facility.
- Create protocols.
- Who to notify (be sure the medical director is one).
- What to tell the authorities.
- When to notify an attorney.
- For the public and private areas of the facility and who may enter.
- Have notifications in place so that egvents that occasion a visit are not a surprise.
- How likely is it that a medical director will be involved?
Last year, the attorney general's office received 1517 referrals of abuse; 86 criminal complaints were filed, and 33 criminal convictions were made. Many of those investigations dealt with skilled nursing facilities or other long-term-care providers.
It is also important to establish parameters for notifying the medical director about certain events. The arrival of investigators or an untoward significant event resulting in serious injury, such as from a fall, should trigger the staff to notify the medical director. Any abuse allegations, serious medication errors, unforeseen pressure sores, and significant understaffing also should be brought to the immediate attention of the medical director.
Mr. Geary stressed the importance of having an attorney who can be contacted on short notice for legal advice. "Someone who has extensive experience dealing with these agencies will know the scope of their authority in requesting access to documents or residents," he said. "You shouldn't wait until investigators are standing at your front door to get a competent attorney."
Another way medical directors can minimize risk is by becoming familiar with the facility's policies and ensuring that they are appropriate. Surveyors expect staff to follow the facility's documented policies. Therefore, it is important for the medical director to work with staff to weed out any policies that may be unreasonable.
For example, Dr. Lett, who frequently presents on this topic, gave an example of a policy in one of his facilities that said that for every unwitnessed fall, the facility would provide neuro-checks on that resident for 24 hours. That was a well-meaning, above-standard-of-care policy, written by consultants but unfortunately not transmitted to the floor nurses. Despite the fact that the facility did not have an untoward event, the surveyors gave them a citation because they believed the facility had not followed the policy.
"While it may be absurd to bring in an attorney in every investigative event, if you have any question in your mind as to whether or not you should, go ahead and make the call. You can get a feel over time as to when you should and shouldn't call," said Mr. Geary, who gave the following examples of events that should trigger a medical director to contact an attorney:
- Any kind of medication error that could have led to a patient's death.
- The existence of an unusual and serious occurrence that requires licensing or police authorities to be contacted--for example, if a staff member witnesses a resident who physically abuses or assaults another resident.
- If, after a patient is transferred to the emergency room, the emergency room staff contacts the facility with a concern that the patient has signs or symptoms of abuse or untreated pressure sores.
All of these situations will catch the eye of investigators and could lead to immediate action by authorities, advised Mr. Geary.
Role of the Attorney
As an indication of what can happen when people in the facility don't contact an attorney at the appropriate time, Mr. Geary described a recent incident in which he was contacted when two Department of Justice officials appeared at a facility demanding to interview staff about what they believed was a criminal act (a cover-up surrounding a patient's medical record). Despite the fact that the facility had known about the event for many weeks and the Department of Health Services had already conducted its investigation, no one had anticipated the appearance of the police at the facility to interview each employee who cared for the affected resident.
In most cases, employees have the right to have an attorney present at such interviews, but it is highly unlikely that they will be given that right unless the facility so informs them. In addition, having a knowledgeable attorney present during these interviews allows the facility to be kept apprised of any new information developed during the investigation.
There are a number of things that an attorney can do to minimize exposure to the facility in the early stages of an investigation, such as securing medical records and interviewing people in a timely fashion. If the investigators are demanding to immediately see records that may be beyond their authority, an attorney can sometimes put them off by talking with them over the phone. "Let them take it out on the attorney" said Mr. Geary, "not on the medical director or other staff.
"Unfortunately, there are times when staff may have committed criminal acts," cautioned Mr. Geary in a final message to workshop attendees. "Do not, under any circumstances, work with the staff person to make it go away in an inappropriate manner. More importantly, do not do anything that smacks of trying to avoid the truth."
Journal of the American Medical Directors Association 2002 July/August Supplement;3(4):H38-H39
Copyright © 2002 American Medical Directors Association. All rights reserved
Published by Elsevier