Non-Payment For Medical Errors: What You Need To Know.

Are pressure ulcers always preventable? How about urinary tract infections (UTI)? If a hospital-acquired infection (HAI) is present, should payment be denied in whole or in part? These are the kinds of questions Medicare has had to field as it developed its new inpatient prospective payment rule, to become effective later this year, to eliminate payment for certain HAIs. For discharges on and after October 1, 2008, hospitals will not receive payment for eight selected conditions:

Object left in surgery,

Air embolism,

Blood incompatibility,

Catheter-associated urinary tract infections,

Pressure ulcers (decubitus ulcers),

Vascular catheter-associated infections,

Surgical site infections - mediastinitis after coronary artery bypass graft, and

Hospital-acquired injuries - fractures, dislocations, intracranial injuries, crushing injuries, burns, and other unspecified effects of external causes.

The conditions selected for non-payment (a) are high cost or high volume or both, (b) will result in the assignment of a case to a diagnosis-related group (DRG) that has a higher payment when present as a secondary diagnosis, and (c) are allegedly, reasonably preventable through application of evidence-based guidelines. More conditions will be added in 2009. You should also be aware that Medicare does not pay at all for so-called "never" events such as surgery on the wrong patient or the wrong body part.

The purpose of the new rule is to encourage the application of evidence-based clinical guidelines and to tie pay to performance, efforts shown to save lives and money. Under the old rule, hospitals actually received higher payment for poorer patient outcomes. Medicare will save money under the new system (although, despite the rhetoric, the amount of savings probably will not be large). Non-payment of the higher DRG will apply in only a minority of cases where the selected condition is the only basis for higher payment. If a patient also has one or more non-selected conditions that qualify for higher payment, the higher payment will be made. This concession was important to academic medical centers, which were concerned that the new rule could create a disincentive to treating complicated cases. The usual appeals process is available when there is disagreement regarding a payment adjustment.

Under the new rule it will be more important than ever to identify conditions that are present on admission and to properly code the information. For example, pressure ulcers present on admission will qualify for a higher reimbursement as long as the presence of a stage III or IV ulcer is noted in the record within two days. Pressure ulcers occurring after that time will not be eligible for additional reimbursement.

Determining whether a UTI was avoidable is particularly difficult, and a good example of the kinds of challenges providers face. Evidence-based guidelines provide that catheters should be used only when necessary, inserted only by personnel familiar with aseptic technique, left in place the minimum amount of time necessary, and maintained with closed, sterile drainage systems. However, prolonged use of catheters cannot always be avoided. Some experts recommend that there should be exceptions for patients who are immunosuppressed, those who require long-term catheter placement for installation of antimicrobial or chemotherapy agents, and those who have sustained urinary tract trauma. In addition, prevention guidelines for avoiding catheter-associated UTIs are due to be updated. Nonetheless, CMS selected the condition for inclusion in the FY 2008 rule. Clearly there will be need for further refinement of the rules, and CMS has indicated its intention to continue to work with the hospital industry during the implementation process.

So what can providers do now to make sure they win the pay-forperformance game?

Make sure all clinical staff are thoroughly educated regarding evidence-based guidelines for preventing the selected hospitalacquired conditions.

Step up quality improvement studies of compliance with evidencebased guidelines.

Make the consistent application of evidence-based guidelines a component in evaluating physician and other practitioner performance and in compensation decisions.

Train all staff regarding the need to identify and code all "present on admission" conditions.

Anticipate that Medicaid and commercial payers will follow suit.

Work through your trade association to recommend revisions to the ICD-9-CM diagnostic codes.

Non-hospital providers, such as skilled nursing facilities, outpatient clinics, and home health care providers, should anticipate that their industries will be the next target of efforts to tie pay to performance.

Kathleen Carver Cheney is a partner in the New York office of Duane Morris and Karen B. Siteman is a special counsel in the Los Angeles office. They each focus their practices in health law.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, one of the 100 largest law firms in the world, is a full-service firm of more than 650 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets in the United States and internationally, Duane Morris represents clients across the U.S. and around the world.

Ms Kathleen Carver Cheney

Duane Morris LLP

30 South 17th Street

Philadelphia

19103-4196

UNITED STATES

Tel: [phone]

Fax: [phone]

E-mail: [e-mail]

URL: www.duanemorris.com

Click Here for related articles

(c) Mondaq Ltd, 2008 - Tel. [phone] - http://www.mondaq.com