Let’s Take “Skilled and Reasonable” to Another Level

Many WebPT Members and Blog readers already are familiar with the importance of providing documentation that satisfies the requirements set forth by payers and regulatory agencies. But, did you know there are additional important reasons for providing excellent documentation? That’s exactly what we’re going to talk about today.In the past few years, review processes for outpatient therapy documentation have become more detailed:

1. Technical compliance is held to a more consistent standard. We’ve seen this with the rules governing physician signatures on plans of care as well as the 10-visit progress note timeline.
2. The quality of the content is being examined more stringently to determine whether therapists have adequately accounted for the skills required during therapy sessions. These standards have been in place for some time, but they’ve been more clearly and specifically defined in recent years.
3. Documentation is being reviewed to assess the quality of care provided.

With these areas of review in mind, the question becomes: what constitutes documentation negligence, based on today’s standards?What is the definition of negligence?Professional negligence is defined as a breach of the duty of care between two professionals and their clients. The duty of care is a common law arrangement in which the client expects a level of professionalism and adherence to standards commonly held by those in the profession.

In his book Legal, Ethical, and Practical Aspects of Patient Care Documentation, Ronald W. Scott, PT, JD, defines healthcare negligence as “the delivery of patient care that falls below the standards expected of ordinary reasonable practitioners of the same profession acting under the same or similar circumstances.” Scott goes on to describe how the provider’s history-taking, physical examination, treatment plan, and communication with other healthcare providers all come into play for the defense team in a healthcare negligence case. Remember, most liability cases do not surface for 18-24 months.

What does my documentation have to do with negligence? As explained above, the defining factors for negligence include the provider’s history-taking, physical exam, treatment plan, and communication with other healthcare providers regarding the patient’s care. So, if a provider creates substandard patient documentation—which may lead to patient harm—the provider may be held accountable for negligence based on the documentation content. For example, let’s say a patient sustains a burn from a hot pack—which was applied by a therapy aide—during his or her tenth treatment session. The patient then reports the incident to the clinic three hours post-treatment. Several acceptable standards will be considered during the documentation review process to determine whether this incident constitutes negligence. Here are some of the questions reviewers might ask:

Was the therapy aide properly oriented and competent to apply the hot pack?

Does the state practice act permit therapy aides to apply hot packs?

• Was the therapy aide appropriately supervised during the time of the incident?
• Did the therapy clinic have a clinical policy for the application of moist heat (e.g., mandatory skin checks pre- and post-treatment? Was the policy followed?)
• Did the therapist conduct and document a thorough initial evaluation that captured sensation testing results and any potential treatment complexities (e.g., concerns related to a diagnosis of diabetes mellitus (DM)?
• Did the therapist note a precaution within the chart to alert other staff members of those treatment complexities and advise them to use extra toweling?
• Did the therapist report the incident to the referring physician?
• Was a policy in place to monitor the hydrocollator temperature and cleaning? Was the policy followed? Did the process match the manufacturer’s guidelines per the product manual?

Here are a few examples of possible negligence findings from our theoretical scenario:

• According to the initial evaluation, there was a past medical history (PMHx) of DM, but no testing to assess sensation in the areas where moist heat would be applied. Furthermore:
  1. The therapist negligently contributed to the burn by not testing sensation, as such testing is standard protocol for DM.
  2. The facility did not meet acceptable standards for having a clinical policy in place for moist heat application and hydrocollator cleaning.
  3. The facility—and more specifically, the therapist—never notified the referring physician of the incident.
  4. The initial evaluation lacked full documentation of the complexities of the patient. These complexities—some of which would impact sensation and thus, the patient’s treatment—also included several operative procedures, hypertension (HTN), osteoarthritis (OA), and reflex sympathetic dystrophy syndrome (RSDS). Documenting these types of complexities is consistent with acceptable standards.
  5. An incidental finding—which also would be mentioned in the expert’s report—was that the documents did not meet the minimum acceptable standards for reporting claims to Medicare

So, what do I need to do?The key to avoiding negligence issues is to provide and document—to acceptable standards—skilled, reasonable, and necessary care. Legal cases typically involve careful review of many different federal and state regulations to determine:

1. whether the minimum acceptable standard of content documentation was breached, and
2. whether unacceptable documentation may have contributed to an adverse patient event.

Acceptable standards are governed by:

• Federal policies such as the Medicare Policy Manual
• State practice guidelines
• APTA, AOTA, and ASHA scope-of-practice guidelines
• Commercial insurance carrier guidelines
• Similar providers in your community

To enhance compliance with billing and documentation regulations and guidelines, many therapy providers have started documenting electronically using electronic medical record (EMR) systems. However, it’s important to remember that EMRs are not a substitute for a therapist’s clinical reasoning and judgment. Here are some basic documentation best practices to follow—whether or not you use an EMR:

• Document a complete history of the patient’s care following his or her injury, including (but not limited to):
  • new medications
  • potential impact of those medications on therapy service progression
  • care provided by other professionals
  • PMHx
• Document baseline and monitor vital signs where appropriate, based on the patient’s presentation.
• Document all precautions and communicate them to support staff. Remember, therapists are responsible for—and must oversee—all care delivered by support staff.
• Document the patient’s complexities, as they may impact the patient’s prognosis and rehab potential. For example, if you are evaluating a new total knee replacement patient who also has a diagnosis of osteoporosis/osteopenia and is now on anti-coagulation medications due to a DVT, you absolutely should document these details.  These issues add a level of sophistication to the treatment and the skills required for that treatment, as they alter how aggressively the therapist can deliver PROM. That in turn impacts patient safety and quality of care. 
• Here are a few examples of items you could document to indicate the skill involved in care:Verbal or tactile cueing requirements,
  1. Patient follow-through and safety in performing activities or HEP,
  2. Vital sign responses and recovery for certain activities, and
  3. Therapist hand placement for PROM (to protect a recent surgical procedure).

What are the key takeaways?Most of the compliance-related information therapy providers consume on a daily basis pertains to CMS documentation guidelines. Yes, CMS may have the most technical rules, but regardless of how stringent—or lax—the regulations are, don’t lose sight of the overall purpose of clinical documentation. Healthcare providers—including therapists—document care delivery to support billing as well as to educate other providers involved in a patient’s care.At this point, you may be saying (or have already said), “Man, I hate documentation! I just want to treat patients. If I go the cash-based route, can I avoid all this?” The answer: Nope! Even if you never bill another insurance company, the professional standard of care still applies to you—and your documentation must support that standard of care. I wanted to bring clarity to that very important point, because I’ve talked with therapists who really thought all their documentation woes would go away the minute they switched to a cash-based business model.

Thankfully, an electronic documentation system like WebPT can assist you in meeting technical documentation requirements and thus, avoiding the issues discussed above. But, it’s important to remember that systems like WebPT can only cue you; they cannot document for you. Therefore, you still need to understand the requirements that apply to you—and implement the processes and policies necessary to ensure you and your staff comply with those requirements. On that note, a compliance plan can help you develop processes, establish policies, and maintain accountability.