Tuesday, November 23, 2010

Pennsylvania Acts on Patient Safety in Nursing Homes

Preventable Medical Errors may be the sixth biggest killer in America. In a landmark 1999 report, The Institute of Medicine (IOM) estimated that medical errors were responsible for: 44,000 to 98,000 deaths each year and  total national costs of $17 billion to $29 billion. The Congressional Budget Office found that there were 181,000 severe injuries attributable to medical negligence in 2003. The Institute for Healthcare Improvement estimates that 40,000 instances of medical harm occur in the healthcare delivery system daily. The 2010 Health Grades Study suggests that Medicare patients who experienced a patient-safety incident have a one-in-five chance of dying as a result. 

As a result of these reports, the federal government and many states have initiated programs requiring health providers to report on preventable adverse medical events.  Medicare and a number of commercial insurance companies and even some employers have set up programs to address medical errors. Medicare no longer reimburses hospitals for the care of hospital-acquired conditions (e.g. certain infections, advanced bed sores, or fractures) and other preventable medical errors such as performing surgery on the wrong body part. 

Over the past few years, the Pennsylvania Legislature has enacted several laws which seek to use market forces to address the issue of Preventable Serious Adverse Events in the private health care industry. In 2007, Pennsylvania enacted Act 52 dealing with Hospital Acquired Infections Control. Using the carrot approach, Act 52 provides for quality incentive payments to facilities that show a reduction in infections.  In 2009, Pennsylvania applied the stick. Act 1, The Preventable Serious Adverse Events Act (codified at, 35 P. S. §§ 449.91—449.97).

Act 1 prohibits health care providers, including nursing facilities, from knowingly seeking payment from a health payor or patient (1) for a preventable serious adverse event (''PSAE''); or (2) for any services required to correct or treat the problem created by a PSAE. In addition, Act 1 also requires a health care provider that unknowingly receives payment for services associated with a PSAE or for the services to correct the PSAE to immediately notify the health payor or patient and refund the payment within 30 days of discovery or receipt of payment, whichever is later.

Act 1 defines a PSAE as ''[a]n event that occurs in a health care facility that is within the health care provider's control to avoid, but that occurs because of an error or other system failure and results in a patient's death, loss of body part, disfigurement, disability or loss of bodily function lasting more than seven days or still present at the time of discharge from a health care facility.''
Act 1 directed the Pennsylvania welfare agency (''DPW”) to issue a PSAE bulletin for nursing facilities, and specifies that ''[f]or a nursing facility, preventable serious adverse events shall be those listed in [the] bulletin.'' On October 16th, DPW published its bulletin listing the events and setting forth the criteria that must be satisfied in order for an event to be classified as a PSAE. 

The events listed in the bulletin qualify as a PSAE if all of the following criteria are satisfied:

1. The event was preventable. To be preventable, the event could have been anticipated and prepared for, but, nonetheless, occurred because of an error or other system failure; and
2. The event was serious. The event is serious if the event subsequently results in death or loss of body part, disfigurement, disability or loss of bodily function lasting more than seven days or still present at the time of discharge from a nursing facility; and
3. The event was within the control of the nursing facility. Control means that the nursing facility had the power to avoid the error or other system failure; and
4. The event occurred as a result of an error or other system failure within the nursing facility.

The Pennsylvania Medicaid approach is similar to, but not identical with, Medicare initiatives.  Pennsylvania’s MA program has a more extensive list of preventable events. And while, Medicare prospectively denies payments up front, Pennsylvania will adjust or reclaim a payment after review. DPW will seek Identify potential adverse events through claims review. 

The 2011 Pennsylvania legislative session will likely see the introduction of additional legislation intended to expand the Medicaid PSAE programs to additional health care providers.   

“First do no harm” is a fundamental directive for health care providers.  Surely we can do better at following it. Using market forces (denying payment) is one approach, though insufficient by itself. For more information on how you can help, check out the Institute for Healthcare Improvement’s  5 Million Lives campaign  at http://www.ihi.org/IHI/Programs/Campaign/Campaign.htm?TabId=1

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