Dr. Val Guest Post: Straight Jackets Issued To All Hospital Patients Over Age 65?

Below is a guest post from fellow health care blogger, Val Jones, M.D, on the topic of the new Medicare "never events." For other recent posts by Dr. Val - check out the recent Dr. Val sightings at Suture for a Living.

Straight Jackets Issued To All Hospital Patients Over Age 65?

By Val Jones, MD

Bob is a good friend and blog buddy of mine, and I respect his legal opinions on medical matters. He has kindly invited me to guest post on his blog, and so I’d like to take this opportunity to ask you (Bob’s audience) to help me with a medicolegal issue. Let me explain.

Today I viewed a TV ad sponsored by the AARP. It was promoting a remote alarm device that elderly people could use to notify EMS if they fall and need help. The ad featured a surprising statistic:

“One in three people over the age of 65 will fall down this year.”

That’s a pretty common occurrence, wouldn’t you say? It certainly argues for the need for those wearable alarm buttons.

But at the same time that these ads are running on television, Medicare is moving forward with their “never event” quality program. The initiative means that Medicare will not pay for the care of patients who experience a “never event” in a hospital – funding for that patient’s care will need to come out of the hospital’s budget. Medicare argues that they shouldn’t have to pay for medical errors such as “wrong side surgery.”

While I’m sympathetic to their perspective on wrong side surgery, the list of never events reaches far beyond the limits of medical errors to include things like mental status changes, infections and… drum roll please . . . Falls.

That’s right, Medicare believes that falls are “never events” and will not cover the costs associated with fall injuries in the hospital setting.

Let me ask you this, if 33% of people over the age of 65 fall during a given year, how on earth can we argue that falling (in a sicker, hospitalized population) can be prevented 100% of the time?

The only solution I can think of is to tie down all Medicare patients to their hospital beds so that they are unable to fall. Forget autonomy, freedom, dignity, and all that other stuff. Can hospitals afford to lose funding for fall-related injuries that up to a third (or more) of their Medicare patients might have during their hospitalizations?

I feel very sorry for patients in this new “never event” era. Going to the hospital is dehumanizing enough – you’re put in a backless gown, poked, prodded, kept up all night and visited by throngs of staff, and now, you may just be put in a straight jacket as well.

I ask you, Health Care Law Blog readers – what are we to do about this? Is it legal to tie people down against their will? Is it fair for Medicare to classify falls as “never events?” Could attorneys help us in any way here? I eagerly await your responses.

I will be the first to respond to Dr. Jones' plea for answers from health lawyers. Daily I deal with health care provider clients, including hospitals, and help them to understand, interpret and practically implement health care regulations. As a part of the process we work together to understand the regulations, assess potential risks, legal implications, etc.

Dr. Jones' post points out the practical difficulty faced by hospitals -- limit the number of falls that occur in their facility or face non-payment for services. I'm not going to pass judgment on the reasons and process developed for implementing these new regulations because I have little historical background on the drafting of the regulations.

Do we want hospitals to have a 0% patient fall rate? Yes. Is it possible, probably not. Not all falls are preventable. I suspect the question of what is a preventable fall will be a topic of discussion and debate (with legal consequences) as the regulation is implemented. Also, personally I would have liked to have seen CMS take a "carrot" vs. "stick" approach to incentivizing hospitals to reduce the number of falls and other "never events." On a positive note, this type of regulation implements a process that links providing quality care with the amount of reimbursement.

Like most health care regulations, part of the problem is understanding the regulation. The world of health care regulation has become so complex that it is almost impossible for the average health care provider to understand the regulations. Just finding the regulations can be a task. For example, the details on the "never event" regulations were published in the midst of a 2,140 page regulation.

The new "never events" regulations were issued as a part of the Medicare Hospital Inpatient Prospective Payment System (IPPS) FY 2009 and went into effect for discharges occuring on or after October 1, 2008. To learn more about the regulations read the CMS press release and the final rule (regulations starting at page 290 and comments/responses at page 352). You can also find more information on the CMS' Hospital-Acquired Conditions site.