Involuntary Discharge: What Happened to the Oath “First, Do No Harm”?

This blog post was made by Beth Witten, MSW, ACSW, LSCSW on August 6th, 2014.
Involuntary Discharge: What Happened to the Oath “First, Do No Harm”?

Involuntary Discharge: What Happened to the Oath “First, Do No Harm”?

Recently the Home Dialysis Central Facebook discussion group has been buzzing with patients reporting instances of involuntary discharge (IVD). The ESRD Network Annual Report from 2011 (the most recent one) reported that IVD complaints had increased 25% in 2011 from 2010. It further reported that facilities had involuntarily discharged 442 patients that year, an increase of 13% from 2010. i

Facilities may want to discharge patients who are “complainers” that may adversely affect their reputation, or those who put clinic revenues at risk for not meeting CMS targets under the quality incentive program (QIP). Facilities’ wishes seem to align perfectly with those of nephrologists who use the medical model where they recommend (order) and patients must follow their orders or be labeled “noncompliant.”

The ESRD Conditions for Coverage (CfC) address patients’ rights and what to do when plans of care are unsuccessful. The ESRD CfC also sets limits on involuntarily transfer and discharge. The Interpretive Guidance to the ESRD CfC states that involuntary discharge should be rare . It says a facility cannot dismiss a patient for skipping or shortening treatments or for not meeting facility-set goals . Yet patients report that this is occurring and many in-center and home patients are fearful to rock the boat.

The Condition for Patients’ Rights at §494.70 grants patients these (and other) rights to:

  • Respect, dignity, and recognition of his or her individuality and personal needs, and sensitivity to his or her psychological needs and ability to cope with ESRD”

  • Be informed about and participate, if desired, in all aspects of his or her care, and be informed of the right to refuse treatment, to discontinue treatment, and to refuse to participate in experimental research” and according to the Interpretive Guidance, “Patients have the right to refuse any aspect of treatment.”

  • Be informed of his or her right to file internal or external grievances…”

  • Be informed of the facility’s policies for transfer, routine or involuntary discharge, and discontinuation of services to patients; and receive written notice 30 days in advance of an involuntary discharge after the facility follows the involuntary discharge procedures described in § 494.180(f)(4)…

Facilities must post these and other patients’ rights in a common area and staff must tell patients their rights in a way they can understand.

The Condition for Patient Plan of Care at §494.90(b)(3) addresses what the interdisciplinary team (IDT) must do when goals or targets are not achieved:

  1. If the expected outcome is not achieved, the interdisciplinary team must adjust the patient’s plan of care to achieve the specified goals. When a patient is unable to achieve the desired outcomes, the team must—

(i) Adjust the plan of care to reflect the patient's current condition;

(ii) Document in the record the reasons why the patient was unable to achieve the goals; and

(iii) Implement plan of care changes to address the issues identified in paragraph (b)(3)(ii) of this section.

The Interpretive Guidance recognizes that patients are individuals with the right to choose what recommendations to follow. “The IDT must recognize each patient has the right to choose less than optimal care when the patient determines optimal care would negatively impact his/her quality of life…These regulations require the IDT to demonstrate its members are actively attempting to meet each patient’s plan of care goals. This Condition does not ‘require’ a patient to meet every goal. Any member of the IDT, including the patient, may document why goals are not met or cannot be met.”

When a facility is considering involuntarily transferring or discharging a patient, the ESRD CfC places the responsibility on the governing body and medical director to ensure that staff follow the policies for discharge and transfer. The ESRD CfC limits the legitimate reasons for IVD to nonpayment, facility closure, inability to meet the patient’s documented medical needs, and severely disruptive abusive behavior . Facilities cannot just wipe their hands of patients who fit these criteria. The ESRD CfC requires the IDT to do a comprehensive reassessment and document ongoing good faith efforts. The medical director and treating physician must both sign the order for involuntary transfer or involuntary discharge, and facility staff must make good faith efforts to find the patient another facility. And the facility must provide 30-days written notice to the patient and the ESRD Network of the impending discharge/transfer.

The Interpretive Guidance describes an “immediate severe threat” allowing a facility to use an abbreviated transfer/discharge when a patient presents threatens with a weapon or makes another credible threat of physical harm. It states explicitly, “ …an angry verbal outburst or verbal abuse is not considered to be an immediate severe threat.” A facility using an abbreviated discharge or transfer must notify the ESRD Network and State Survey Agency immediately.ii

I am concerned that the Network Summary Report mentioned earlier reported that several Networks’ individual reports stated that nephrologist discharges in 2011 had increased over 2010. Although physicians have the right to choose which patients to treat, the American Medical Association’s Code of Medical Ethics states at 10.01-Fundamental Elements of the Patient-Physician Relationship states:

  1. The patient has the right to continuity of health care. The physician has an obligation to cooperate in the coordination of medically indicated care with other health care providers treating the patient. The physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for care. iii

This opinion fits with the CfC mandates for facilities. Ethical physicians will not avoid this responsibility to their patients when they choose to terminate the physician-patient relationship.

Involuntary discharges cannot be considered “rare” when 442 patients have no permanent dialysis “home.” Have we crossed a red line in dialysis? Have physicians and dialysis clinics failed to accept the patient-centered care model? Are high patient-staff ratios and limited numbers of professional staff preventing the IDT from taking the time to encourage patients to participate in care planning and advising them how to get the most out of it? Do staff’s lack of patience or failure to understand individual needs keep them from explaining the relevance of the medical treatment to patients (“what’s in it for me?”)? Is the IDT failing to consider home modalities for patients who may not be 100% compliant with strict in-center diet or schedule, who may be outspoken about facility problems, and may be exhibiting a need for more control over their treatment? Is the IDT too busy filling out forms to communicate effectively with patients and each other to identify and plan ways to address root causes of problems? Are understaffed facilities fearful of citation or loss of revenue leading them to advocate with physicians to discharge patients who take too much time asking questions, who complain/demand too much, or who don’t quietly follow orders?

I believe we can do better . CMS is currently training surveyors to use the new ESRD Core Survey process. This process expects surveyors to observe interactions between patients and staff, to interview patients and dialysis personnel, and to review medical records to determine how well the facility’s IDT—including the patient’s physician and the medical director—is promoting patients’ rights, encouraging patients to participate in their care and care planning, and encouraging patients (and personnel) to ask questions, voice suggestions, file complaints, and identify errors and near misses without fear of reprisal, including fear of involuntary discharge.iv Facilities may want to use the Decreasing Dialysis Patient-Provider Conflict toolkitv and the management may want to ask staff to assess the facility’s patient-centeredness.vi

I’m challenging blog readers to share suggestions for ways to reduce the number of involuntarily discharged patients . Limiting access to dialysis only to patients who will be quietly obedient—though less challenging—doesn’t count. Your suggestions could save lives!

i Centers for Medicare & Medicaid Services. End Stage Renal Disease Network Organization Program 2011 Summary Annual Report. Baltimore, MD: CMS; 2012, http://www.esrdncc.org/index/cms-filesystem-action/resources/SAR2011_website_posting.pdf (Accessed July 5, 2014)

ii Part 494 Conditions for Coverage for End-Stage Renal Disease Facilities Interpretive Guidance, Interim Version 1.1, October 3, 2008, http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/esrdpgmguidance.pdf (Accessed July 5, 2014)

iii AMA Code of Medical Ethics, Opinion 10.01 - Fundamental Elements of the Patient-Physician Relationship, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion1001.page (Accessed July 5, 2015)

v Decreasing Dialysis Patient-Provider Conflict, 2005, http://www.esrdncc.org/index/decreasing-dpc (accessed July 5, 2014)

vi Academy for Educational Development and the Mid-Atlantic Renal Coalition, Providing Patient-Centered Care, Module 2, http://www.esrdnet5.org/Files/Education/Training-Mod/Module-2--Patient-Centered-Care.aspx (accessed July 5, 2014)

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