November 21, 2004

Will Work For Laws

Sometimes when doing presentations for health providers, I joke about over-regulation of health care by asking that before participants decide to suggest new laws-- they close their eyes and imagine hordes of lawyers running through the Halls of Congress holding cardboard signs that say: Will Work For Laws. I may be joking but the reality of over-regulation is directly addressed by physician blogger Dr. Bob at The Doctor Is In who says:

When last I checked several years ago, Medicare had about 150,000 pages of regulations in the Federal Register, approximately 3 times of the volume of the IRS tax code. American medicine is more highly regulated than Soviet state industry ever was, and getting more so by the day.

He calls his post the Law of Rules, which is very distinct from the Rule of Law. A particularly cogent passage of his article is:

We often hear totalitarian regimes such as China or the former Soviet Union boast of their low crime rates and the safety of their streets. And Islamic countries and cultures often proclaim their inherently higher moral status over us libertines in the West, cutting off the hands of robbers and the like. But while it is possible in large measure to restrict behavior through law and retribution, such measures do not make a society or its individuals moral as a consequence. In fact, the effect is quite the opposite. Laws intended to restrict evil behavior often have the unintended consequence of negatively impacting those intent on good. So, for example, the law designed to discourage fraud in Medicare by the few (a worthy goal) results in less time for patient care, restriction of access to care by the needy, and the exodus of good health care providers to other professions to escape their crushing burden -- all bad outcomes affecting far more people than the few who would game the system. (emphasis added)

We are coming up on a Legislative session next year and health care associations are preparing legislative agendas. I think that as we prepare for this session, we should all go read and reflect on the words of Dr. Bob.

Pitfalls of Pain Management

You all know that Pain Management is a quality of care concern for DADS. Facilities have been cited for failing to adequately and systemically deal with pain being suffered by residents.

Nursing facilities must, of course, obtain physician's orders for pain medication and increasing dosages and types of medications. Today, there was a column in the New York Times by Sally Satel regarding the criminal liability risks assumed by physicians who are managing pain with narcotics.(You may need to register to read it--it's free though)(here is the cached version) Here is an example from the column:

February 1999, Dr. Frank Fisher, a general practitioner in Shasta County, Calif., was arrested by agents from the California state attorney general's office and charged with drug trafficking and murder.

The arrest was based on records indicating that Dr. Fisher had been prescribing high doses of narcotic pain relievers to his patients, five of whom died. He lost his home and his medical practice and served five months in jail before it was discovered that the patients had died from accidents or from medical illnesses, not from the narcotics he prescribed.

All charges were dropped last year, and Dr. Fisher now has his medical license back. Yet his ordeal lingers as a cautionary tale of what can happen to doctors who treat pain aggressively.

While patient advocate groups as well as survey agencies such as DADS are emphasizing that pain should not be undertreated, the DEA and other law enforcement agencies are stepping up investigation and prosecution of physicians because of an increase in abuse and drug diversion:

The red flags that rightly alert regulators to potential misconduct by doctors are, paradoxically, the very features that can also mark responsible care for intractable pain. These include prescribing high volumes of narcotic painkillers for extended periods, prescribing potentially lethal doses or prescribing several different drugs.

Thus, nursing homes are encouraged by State regulators to ensure that residents are being properly treated for pain, while physicians are disincentivized to treat pain aggressively because of scrutiny by DEA regulators. This can be a particularly difficult situation for nursing homes, because as we all know, surveyors often try to send messages to attending physicians by citing nursing homes for deficiencies.

Apparently, the DEA, albeit reluctantly, recognizes that there should be some degree of balance achieved:

Last August, the D.E.A. publicly acknowledged the need for a "principle of balance" to address the necessity of access to pain medications and the approaches to containing abuse, addiction and diversion. It published "Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel," which thoughtfully explained the concepts, and offered clear descriptions of the circumstances under which the D.E.A. may prosecute a doctor. Mysteriously, however, in early October the agency pulled the document from the Web site, saying it had "misstatements."

I did say the recognition is reluctant because some are speculating that the above publication was pulled from the DEA website because of fear that defendant Doctors would use the document in court in defense of their treatment--as one Doctor is actually doing. If that speculation is true, we are seeing the ugly face of "gotcha style" regulation. Thank goodness for Google Caches. Here is the document. And, here is an article on the document by a writer who did not remove it from her site and is my source for linking it in this piece.

You may want to share the document with your Medical Director so that he can assist in educating and alleviating fears attending physicians may have about aggressively relieving the pain of residents.

Also, there has been progress made around the country on this issue. In 1998, theFederation of State Medical Boards, which represents American licensing boards, published "Model Guidelines for the Use of Controlled Substances for the Treatment of Pain" to assure physicians that appropriate prescribing of opiate painkillers would not lead to action against their licenses.

A copy of the Guidelines as updated in 2004 can be found here. As of January 2004, 22 state licensing boards had adopted these Guidelines. I can find nothing on the web confirming that Texas is one of those states, though we do have an Intractable Pain Statute.

Additionally, California has passed a bill called "The Medical Crimes: Investigations and Prosecutions." It requires that the state's district attorneys association collaborate with "interested parties" on protocols to investigate physicians.

Sally Satel, in the NYT article suggests that: Other states should follow suit. Better yet, they should require that prosecutors first obtain declarations from qualified medical experts as to the good faith of the physician in question before charges are filed. It would go a long way toward making pain medicine what it should be: a health care story, not a crime story.

I concur.

November 18, 2004

Written Statements for Incident Reports

Lately, several people have asked me about the advisability of having employees write statements to accompany reports of incidents sent to DADS. It is my position that having your employees write such statements is neither advisable or required.

Thus, the next question is--how do you conduct your investigation if you don't have your employees write statements? My answer is that your investigator actually investigates. That means interrogating employees who are witnesses to an incident or who may have material information.

What you are seeking in an investigation is facts. If you allow employees to write their own statements--you are most likely to get emotion and conjecture. When an incident occurs, it is natural for your staff to feel guilt and fear about it. It is your investigator's job to cut through that and discover facts--not feelings.

The investigator (who should be a member of your Quality Assurance Committee acting as part of that committee) should sit down with each witness and ask pointed and specific questions about the incident, recording the relevant and material answers in detail. Use those answers to fill out the "investigation summary" section of the incident report form you must turn into DADS which is linked here.

I want you to look closely at this form. When it speaks of witness statements, it says attach them "if possible." Do not make it possible! Understand that under the Rules of Civil Discovery in Texas, such statements are discoverable by plaintiff's personal injury lawyers. Do you want to be party to a lawsuit that hinges on a statement written by a frightened nurse aide? Don't do it. Furthermore, if you instruct your staff to write their own statements, they are possibly writing documents that will later end up in the hands of law enforcement. That nurse or nurse aide may end up signing a piece of paper that--perhaps unfairly--puts them in jail for abuse or criminal neglect.

If you think that it is absolutely necessary to obtain employee statements--have your attorney assist you in drafting them based on the information given to the investigator by the employee. Consider this--when members of law enforcement obtain written statements from witnesses--they don't let the witnesses sit there and write their own statements. They interrogate--and from the results of their interrogation--they type up the factual parts and have the witnesses review the result for accuracy and sign it. If you absolutely think you have to have a statement and you don't feel that the situation warrants hiring an attorney--the investigator should draft the statements based on the interrogation and the facts.

November 17, 2004

Criminal Checks of Nursing Home Residents?

On November 15, 2004, CBS news reported on an incident involving alleged resident-on- resident sexual abuse in a Florida nursing home. The resident-suspect, a man in his 80's, had been found wandering the streets by Florida law enforcement. A Florida court declared him a "vulnerable adult ... in need of protective services." Thus, the officials caused him to be admitted to the nursing home--where he allegedly sexually abused another resident.

Buried further down in the story, it is noted that Florida officials did not know of the resident's criminal background--and those officials emphasized that criminal background checks of residents is not required.

The story also talks about a nursing facility in Minnesota that was shut down as a result of the actions of geriatric prisoners transferred to those homes:

Minnesota's Atttorney General Mike Hatch just shut down one nursing home after sex offenders transferred from prisons were caught fondling, beating and sexually assaulting other residents.

"What the hell is going on here? How could you put sex offenders in with vulnerable adults?" says Hatch. "You put them in a locked ward with the women locked in?"

When you read this story, notice that the other side of the stories--those of the nursing homes--is not told. In the case of the Florida incident, that is because the family is suing the nursing home. CBS is, therefore, carrying water for the plaintiff's personal injury lawyer. Would it be too much for a competent journalist to ask why those in the best position to get criminal information--like the Court and law enforcement didn't do that before placing the man? Do you wonder what those official's reactions would have been had the facility requested such information before agreeing to admit?

As for the Minnesota situation--wouldn't a competent journalist interested in adhering to the Code of Ethics for Professional Journalists have seen fit to discuss exactly how those facilities got those prisoners and what information was given regarding the backgrounds of the prisoners? Doesn't the situation suggest to a reasonable person that the Minnesota Prison System had a problem dealing with geriatric prisoners and looked outside the system for help--and shouldn't that be discussed in the story?'s much more gratifying to blame nursing homes and attribute outcomes like this to reasons such as:

The answer may be money. When prisoners of all ages fill empty nursing home beds, Medicaid or Medicare pays the bill.

So, the next time a governmental entity or probate court seeks to do you a favor by providing you admissions--remember this story and take precautions to protect yourself and your facility. (like insisting on full information)

Reforming Adult Protective Services

On November 15, 2004, HHSC released its report relating to reforming Adult Protective Services in accordance with Executive Order RP33. The report is linked here.

According to the press release:

The reform plan recommends adding an additional 63 caseworkers over the next biennium – for a total of 144 new caseworkers by fiscal year 2007. The additional caseworkers would represent a 32 percent increase in three years over the agency's current 446 caseworkers and would reduce caseloads to 28 per worker by fiscal year 2007.

With regard to investigations of providers for abuse and neglect--go to page 10 of the report to read the findings, proposals and measures already implemented. Appendix A outlines the investigative process and the accompanying checks and balances.

Please feel free to leave comments here regarding this report. This blog allows you to make comments anonymously should you feel so inclined.

November 11, 2004

The Flu And You!

The flu season is upon us and many of you in long-term-care have been concerned about obtaining flu shots for your vulnerable populations. The Texas Department of State Health Services issued a news release on November 9, 2004 indicating:

The U.S. Centers for Disease Control and Prevention (CDC) today announced that the distribution of some 7.2 million doses of the nation's remaining supply of flu vaccine will be determined by the states' health departments.


Texas Department of State Health Services (DSHS) officials expect that CDC will allocate some 500,000 to 600,000 of the 7.2 million doses for Texas. DSHS officials are working with local health departments in deciding where the vaccine will go.

The TDSHS indicates that the doses will be distributed to non-public health providers, including nursing homes, hospitals, physicians and others in the private sector. The Austin Business Journal reports that doses being distributed by the CDC will not be shipped directly to state health agencies--but rather will be sent by the manufacturer directly to providers approved by the state agencies.

For those of you in the community--(HCS and ICF-MR), I would check with the attending physician for each your consumers. The Houston Chronicle is reporting that--although dosages are beginning to trickle in--shot seekers are on their own as there is no clearinghouse. I've found nothing specific with regard to you as of yet. If anyone out there has such information--please post a link in Comments and I will update the post.

The Victoria Advocate is reporting that, although the vaccine is not being distributed to the health officials, the public health directors will be instrumental in deciding where the doses end up. In other words, the loca officials will send recommendations to the TDSHS as to where the doses will end up. As reported by the Victoria Advocate:

Dr. Bain Cate, director of the Victoria City/County Health Department, who also has responsibility for Calhoun, DeWitt, and Jackson county health departments, sent a recommendation Wednesday night to the Texas Department of State Health Services for these counties.

Cate recommended specific numbers of vaccine doses that could go to one private hospital and five nursing homes in Victoria and Jackson counties for their high-risk patients who missed out on earlier distributions.

"We're just acting as an ambassador or conduit by providing numbers to get the remaining supplies to private agencies that need them the most," Cate said.

Hopefully, the bureaucratic machinery will move fast. According to Bryan McCleod, a spokesman of the Harris County Hospital District as reported in the Houston Chronicle yesterday:

"Vaccines won't do any good if they stay in the vial," McLeod said. "The longer we wait, the closer we get to a flu outbreak."

In the meantime, ensure that your staff is carefully following universal precautions and that you have a plan in place in the event of a flu outbreak. An in-service on this issue would be extremely beneficial to improve the implementation of your plan. Also, make sure your staff is prepared to speak to surveyors on universal procedures in the event of an outbreak and a resultant investigation by DADS. You want to avoid situations like I described last March in Deficiencies of the Weird:

You Might Also Need to Learn to Levitate Physical Objects

In 2003, a facility in South Texas was cited for infection control. A few residents contracted the flu and the facility took precautions to prevent it from spreading. The facility was cited because nurses were putting blood pressure cuffs onto over-bed tables without setting them on a barrier to prevent contact with the actual table. (Even though the tables had nothing wet on them) The surveyors apparently forgot that blood pressure cuffs are actually put on and come into contact with residents who may be sick.


November 08, 2004


In a recent article, Understanding the Anatomy of a Level of Need Appeal, I said that recourse beyond the administrative process was non-existent at worst and uncertain at best. We now have good news on that issue from the Texas Supreme Court.

In September, the Texas Supreme Court ruled on a case involving the question of whether or not a person who holds a child-care facility license may obtain judicial review of an administrative decision to revoke the license, Texas Department of Protective and Regulatory Services v. Mega Child Care, Inc. (Supreme Court of Texas, September 3, 2004) Although this is a different kind of case from the Level of Need case, I would argue that the holding applies to both.

TDMHMR long took that position that because the agency’s enabling statute did not specifically authorized judicial review in pursuant to the Administrative Procedures Act for level of need cases, no such right existed. The Texas Supreme Court ruled otherwise. The Court held that “Section 2001.171 provides an independent right to judicial review of a contested-case decision when the agency’s enabling statute neither specifically authorizes nor prohibits judicial review of the decision.”

It seems apparent that, because there is no statute prohibiting judicial review for LON cases, you have a right to appeal these cases to the District Court for judicial review. I consider this a major victory reaffirming and restoring due process rights for the beleaguered providers in the HCS and ICF-MR programs of Texas.