Hospital General Counsel Panel at the Massachusetts Health and Hospital Association 2022
Featured speakers: Joshua Abrams Senior Attorney, Mass. General Brigham; Meg Cosgrove, Senior Associate General Counsel, Beth Israel Lahey Health; and Dianne Yacovone, Associate General Counsel, Boston Medical Center
Abrams, Cosgrove, and Yacavone addressed the Massachusetts Health and Hospital Association’s Healthcare Legal Compliance forum in December 2022. This recap of their remarks looks at current challenges in patient discharge rules and practices given the shortage of nursing facilities and challenging patient situations.
Patient Discharge Challenges
While some patients delayed getting care during the pandemic others face new medical situations because of it, creating shortages in some healthcare settings.
- What is a reasonable, safe discharge plan when there’s a bed shortage?
- How do you handle disputes between family members and the hospital?
- How do you balance the needs of the patient in the bed against the person who needs the bed next?
- What happens when patients don’t have a decision maker?
A panel of healthcare general counsel tackled these questions and more at the Massachusetts Health and Hospital Association’s Healthcare Legal Compliance forum in December 2022.
Discharge Planning Starts at Intake
Cosgrove noted that people are presenting to the hospital much sicker than they would have previously. The explosion of Covid and flu cases emergency departments in late 2022 has made ERs even more crowded. There has been a collapse in outpatient and community-based supports for a lot of people, she said, and staffing shortage at nursing facilities continue. She said it was bad before the pandemic, and it’s worse now. Add to that: emergency departments are over capacity, so they end of admitting people to the hospital they wouldn’t typically. There simply isn’t a better option.
One way to limit discharge issues is to be sure to admit only people who truly need to be admitted, according to Abrams. This starts with the ER triage process, where patients who don’t need to be seen in the emergency room are given guidance on other options. From there, his colleagues try to resolve health concerns in the ER rather than admitting. It’s important to resolve the emergency and move people out.
“Once you decide to admit someone, you have the overlay of Medicare requirements that impact the ability to discharge the patient.” – Joshua Abrams
Safe, Appropriate, and Achievable Discharge Plans
While the standard for discharge plans is “safe and appropriate,” Abrams also adds “achievable.” Yacavone noted that while there is always a “best” option, sometimes you have to also look at what can actually happen upon discharge. This is especially true when the patient doesn’t have a surrogate decision maker or lacks the capacity to apply for state aid.
Her team works to secure conservatorship for patients like this – either for a family member or the hospital. That way the hospital can discharge the patient to a skilled nursing facility (SNF) or other more appropriate setting. She works with a cross-functional team to streamline the process of identifying cases, working with outside counsel, and moving the process along.
Providing this support is helpful when family members aren’t engaged, when they don’t know how the process works and avoid the discharge conversation all together.
When the Patient Rejects the Discharge Plan
When a hospital finds a bed in an SNF and the patient or a conservator is able to approve it, there can be another challenge. The patient or surrogate may not like the available SNF. Abrams and Cosgrove both talked about issues surrounding sign-off. The patient or family may have a specific SNF in mind, or they may not like the reputation of the one that’s available. Staffing shortages and longer SNF stays make it harder for people to get the facility they want. And it means hospitals have to make really hard calls, because they have sick patients in the ER who need the beds.
Cosgrove suggested reminding people of the risks of staying in the hospital, especially infection. She also suggested that the care team rely on any preferred providers the family has responded well to. They may be more receptive to the discharge plan if it comes from someone they trust. Be mindful of cultural or language barriers, and remember the patient’s right to make his or her own discharge decision, even if it’s a bad one.
Behavioral Health Discharge Planning
Cosgrove noted that behavioral health patients have additional discharge challenges because of the lack of beds in behavioral health facilities. She offered these six tips for inpatient discharge planning, based on her experience with a daily cross-functional planning meeting:
- The best mechanism is to start treatment as soon as possible in the ER. That might mean shoring up your ER’s clinical capacity for behavioral health. If the ER can serve as a mini mental health crisis stabilization center, patients can be stabilized without being admitted.
- Work your relationships in advance. Cosgrove ran a pilot with the SNFs, group homes, schools, and residential placements that send the most people to her ER. The pilot looked at why they were sending so many patients and sought ways to support the patients in place. That might mean telehealth or some wraparound support to try to treat the patient in place and avoid a trip to the ER.
- Pediatric behavioral health patients have a very hard time finding placements in residential treatment, especially those with autism. She tries to work with the school district, the health plan, and state agencies to find placements or some support for the child living at home, since the wait for a bed can be six months to a year.
- For other difficult conditions, like traumatic brain injury, eating disorders, and autism, Cosgrove’s planning team casts a wider net, sometimes looking at out-of-state arrangements. She is working with the state to make it easier for patients admitted to the state hospital for civil commitments. This is the best option because SNFs often won’t take these patients.
- If you can’t discharge the patients, make sure you can at least get paid for them. Talk to the payor about a single case agreement.
With staffing shortages across healthcare not likely to ease anytime soon, it’s important to be proactive and intentional about discharge planning. This starts the moment patients arrive in the ER and goes through all conversations with families and the care team.
YouCompli sponsored MHA’s 2022 Healthcare Legal Compliance Forum. To access the full session recording, please contact the Massachusetts Health and Hospital Association.
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