The principles of a successful Enterprise Risk Management program cannot be revisited too often in the current long-term care environment of increasing government regulations, continuing reimbursement challenges, ongoing staffing shortages, evolving technology, and escalating claims and litigation.  Excelas attended a series of highly informative webinars presented by the Adelman Law Firm on various components of ERM.  These discussions emphasized matters that we assist our clients with every day, particularly documentation practices and medical record management.  The following takeaways from the webinars cover a few areas of best practices in enterprise risk management.

ERM Guiding Principles

Enterprise Risk Management (ERM) is assessing how risks affect an organization and devising plans on how to approach different risks.  An effective ERM program advances safe and trusted health care through empowering health care risk managers to mitigate risk and maximize value.  Ethical and transparent decision-making is promoted at all levels with a goal to improve patient safety.  Decision-making is elevated beyond the unit level to a strategic and holistic organization-wide level.  This enterprise-wide view allows for proactive risk mitigation by empowering all categories of staff members to improve the organization’s performance.

Enterprise Risk Management in long-term care is comprised of the following domains:

• Operational
• Clinical/Patient Safety
• Strategic
• Financial • Human Capital
• Technology
• Legal/Regulatory
• Hazard

Leadership, including administration, risk managers, compliance officers, and medical staff, must determine and build a consensus regarding the top action items for strengthening the organization’s approach to risk management.  A thorough evaluation of what is working well and what aspects need to be enhanced should reveal what area(s) should be tackled first.  The results from this risk management assessment must be incorporated into the organization’s overall strategic planning process.

Best Practices in Documentation

The medical record, whether paper-based, electronic, or a hybrid, is the primary source of communication in continuity of patient care, reimbursement, compliance, and legal proceedings.  High employee turnover and unclear or out-of-date policies and procedures are enemies of good documentation.  Facilities must ensure quality documentation through ongoing staff training on federal and state requirements, corporate policies and procedures, and nursing/health care standards of care.  Regular documentation audits must be conducted with findings incorporated into training and quality improvement programs.

Arbitration Agreements

The use of Arbitration Agreements is a component of ERM.  Providers must ensure Arbitration Agreements are up-to-date and staff training is ongoing to appropriately execute the requirements of CMS under the final rule, “Medicare and Medicaid Programs: Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements” issued in July of 2019.  CMS Form 20140, the Binding Arbitration Agreement Review, provides a guide for training and compliance.  Surveyors will interview residents, family, and staff members about Arbitration Agreements, therefore, it is imperative that staff understand and apply these five components that facilities must comply with if using Arbitration Agreements:

• Signing the agreement is not a condition of admission to, or a requirement to continue to receive care at, the facility.
• The agreement is explained in a form and manner that resident or representative understands, and that understanding is acknowledged.
• The agreement provides for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties.
• The agreement does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials.
• Copies of the signed agreement are retained for binding arbitration and the arbitrator’s final decision is retained for 5 years after the resolution of any dispute.

Negotiated Risk Agreements

NRAs are tools to honor a resident’s wishes about a specific activity or behavior (such as diet or exercising) while describing the resident’s (and family’s) understanding and acceptance of the possible associated risks.  The NRA also describes the provider’s accommodations to these choices by the resident.  The NRA should only address a single topic; for example, the resident does not want to use a walker.  The Negotiated Risk Agreement is a legal contract and state laws vary on their use.  Facilities must have formal policies governing their use, and they need to be updated as the residents’ care needs change.

Record Retention and Release Policies

Frequent record audits and updated record retention and release policies are important elements of the ERM program.  A lack of policies and procedures in this area can impact the level of liability in a claim as well as the outcome of a claim.

Common types of record requests include an attorney letter, subpoena duces tecum, patient request, preservation of evidence, and notice of intent.  Requests for records could indicate that there is the potential for a future claim or litigation.  Comprehensive and up-to-date procedures, training and quality assurance for handling record requests and release of information are key, particularly in situations of high employee turnover.  Training topics should include, but not be limited to, HIPAA and Cures Act requirements, specific state laws, valid authorizations, when to place a legal/litigation hold on the records, and elements of the designated record set.

The American Health Information Management Association (AHIMA) is the authority on medical records, including release of information practices.  AHIMA stresses the importance of a collaborative approach when there is a release of information request in relation to a lawsuit.  All parties, including health information, risk management, legal counsel, compliance, privacy, and data integrity personnel should be involved in developing standard responses to e-discovery requests.

A component of record retention and release is the legal hold plan and procedures to preserve evidence.  A facility should have a designated record custodian who is part of a working group that includes legal, IT, and medical records.  The legal hold plan is initiated when there is reasonable anticipation of litigation.  The plan includes the facility’s retention and destruction policies for all types of records including, but not limited to, medical, financial, and video.

How Excelas supports our clients

Excelas supports our clients’ ERM programs through data abstraction, audits of medical and related records, and record production support.  These audits can reveal gaps in documentation, documentation support for claim submissions, and compliance with regulatory requirements.  Excelas’ experienced legal nurse analysts and health information management professionals can evaluate your facility’s compliance with your current risk management guidelines, as well as provide recommendations for documentation and process improvement.