When Can -- and When Can't -- a Nurse Practitioner Discharge a Patient?

Carolyn Buppert, MSN, JD

Disclosures

November 24, 2015

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Question

Is there any limitation for a nurse practitioner who works as a hospitalist in discharging a patient from the hospital, either to home or to an extended-care facility?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

What Does a Hospital Discharge Entail?

The full question asked about the nurse practitioner's role in patient discharge was: Is there any limitation for a nurse practitioner who works as a hospitalist in discharging a patient from the hospital, either to home or to an extended care facility?

To answer this question, we need to differentiate among writing a "discharge order," performing the "discharge service," and writing the "discharge summary." Then we need to discuss the options when the nurse practitioner and attending physician both work for the hospital vs when the nurse practitioner works for the hospital and the attending physician is privately employed. Then we need to discuss the malpractice risks.

First, we need to define terms. A "discharge order," written in the patient's medical record, tells nurses and other staff that the attending physician authorizes release of the patient. "Discharge service," is a broader term, used for billing purposes. The discharge service includes performing the final examination of the patient, discussion of the hospital stay, instructions for continuing care, and preparation of the discharge records, prescriptions, and referrals. Typically, the discharge service takes a clinician 30-45 minutes. The service is billed using CPT code 99238 or 99239 depending upon how much time the clinician spent. Medicare reimburses the discharge service at $74.59 for CPT 99238 (when the clinician spends 30 minutes or less) and $109.67 for CPT 99239 (when the clinician spends more than 30 minutes).

Writing the "discharge summary" is a part of performing the "discharge service." A discharge summary is important for future care, in that it informs future clinicians about the patient's stay and the postdischarge plans. Hospitals require written discharge summaries to help document the medical necessity of the hospitalization, for hospital billing purposes. It is typically a four- to eight-page document.

Medicare has the following requirements for the discharge service[1]:

  • "A Hospital Discharge Day Management Service (CPT code 99238 or 99239) is a face-to-face evaluation and management (E/M) service between the attending physician and the patient.

  • Only the attending physician of record (or physician acting on behalf of the attending physician) shall report the Hospital Discharge Day Management Service (CPT code 99238 or 99239).

  • Physicians and qualified NPPs (nonphysician practitioners) who manage concurrent healthcare problems not primarily managed by the attending physician shall use the Subsequent Hospital Care code from CPT code range 99231-99233 for a final visit.

  • CMS reminds physicians and qualified NPPs that only one Hospital Discharge Day Management Service is payable per patient per hospital stay.

  • Paperwork involved in patient discharge day management services is paid through the pre- and post-service work of an E/M service.

  • Physicians and qualified NPPs shall not bill both a Subsequent Hospital Care visit and a Hospital Discharge Day Management Service on the calendar date of discharge."

Medicare Expectations

Here is where the situation gets complicated. Although a nurse practitioner may perform physician services for a hospitalized patient, under federal law—Medicare's Conditions of Participation—a physician must be the attending physician of record.[2]

Medicare expects the attending physician to perform the discharge service, which includes writing the discharge order and the discharge summary, as well as performing the final examination of the patient, discussion of the hospital stay, instructions for continuing care, writing prescriptions, and making referrals. Any clinician who bills a discharge service should be ready to support the claim with documentation that the clinician performed the required elements of the service. If the attending physician is on the hospitalist team and a nurse practitioner is also on the hospitalist team, then I see no prohibition or limitation on that nurse practitioner performing the discharge service on behalf of the attending physician. The hospital will bill the discharge service.

The problem is when the nurse practitioner is employed by the hospital, but a private physician (not a hospital employee) is the attending of record. That private physician, or his or her employed nurse practitioner or physician assistant, should be performing the discharge service. If the attending is a surgeon, then the discharge service is reimbursed under the global fee, and the surgeon is responsible for and is getting paid for the discharge service. If the patient's attending is a cardiologist, and the patient is staying overnight after a procedure, then the cardiologist gets to perform and bill the discharge service.

If a hospital-employed nurse practitioner performs the discharge service and a private physician bills for it, the law is broken in three ways. First, the private physician has no right to bill for a service performed by a clinician he or she does not employ or have a contract with. To do so would violate Medicare's rules on reassignment. Under the reassignment rules, Medicare may pay only the clinician who performed the service or, if the clinician reassigns his right to billing, the clinician's employer or an entity with which the clinician has a contract. In either case, the clinician must have unrestricted access to claims submitted on the clinician's behalf.[3]

Second, when there is no employment relationship, Medicare's "shared visit" rules do not apply. A physician cannot bill a service performed by a nurse practitioner employed by another entity.[4]

Third, under federal Stark laws, a hospital may not provide, and a privately employed physician may not request from a hospital, nonmonetary compensation in excess of $392 per year for 2015.[5]

Furthermore, the federal antikickback statute prohibits offering, paying, or soliciting anything of value in an effort to induce or reward the referral of federal healthcare program business.[6] Therefore, a physician group who requests that a hospital-employed nurse practitioner perform the discharge service with any regularity or frequency is in danger of being accused of violating both the Stark and antikickback laws. And the hospital also is at risk. Penalties for violating Stark laws include denial of payment, refund of payment, a $15,000-per-service civil monetary penalty, and a $100,000 civil money penalty for each arrangement considered to be a circumvention scheme. Note that the Stark and antikickback laws differ in that the antikickback laws require "intent," whereas the Stark laws are strictly liability, for the most part; that is, no intent to affect referrals need be proven.

So, I can envision no problem if a hospital-employed physician has admitted a patient and a hospital-employed nurse practitioner writes the discharge order, as long as that activity is permitted by the hospital's bylaws. But there is a huge problem if the nurse practitioner and the attending physician do not have the same employer.

Liability Risk in Discharging Patients

Now let's consider the liability risk. The following case exemplifies the pitfalls of writing discharge orders for physicians when the nurse practitioner has not been involved in the day-to-day care of the patient.

A 53-year-old man fractured his right ankle on the job when a vehicle ran over his foot. He was treated in the emergency department. Because there was no palpable pulse in the ankle, he had orthopedic and vascular surgery the next day. In the month following surgery, he had additional surgeries, wound debridement, and negative pressure wound therapy. One month after the accident, his care was transferred to a plastic surgeon. Three months after the accident, there was a healthy bed of granulation, and the surgeon performed a split-thickness skin graft. Afterwards, the patient was on bed rest with negative pressure dressings for 5 days. The surgeon ordered heparin to prevent thrombosis. The patient accepted the heparin shots for a week but then refused an evening dose and the next morning's dose. The records do not document that the patient was informed about the risks associated with refusing heparin. There is no note that the nurses informed the plastic surgeon of the patient's refusal of heparin. The patient was discharged with instructions to remain on bed rest with bathroom privileges until he visited the plastic surgeon a week later. A nurse practitioner wrote the discharge report and orders; the nurse practitioner did not include an order for heparin.

Two days after discharge, the patient went into cardiac arrest and died. On autopsy, the pathologist found that the cause of death was bilateral pulmonary thromboemboli caused by a deep vein thrombosis in the left leg. The patient's family sued the nurse practitioner, who argued that heparin is not completely effective in preventing blood clots and that it was difficult to confirm the age of the fatal blood clot, which could have occurred prior to the hospital discharge.

The parties settled for $750,000.[7]

The nature of the problem at the heart of this case is easily recognized: reconciliation of medications. The Joint Commission describes medication reconciliation as follows:

"Medication reconciliation is the process of comparing a patient's medication orders to all of the medications that the patient has been taking. This reconciliation is done to avoid medication errors such as omissions, duplications, dosing errors, or drug interactions. It should be done at every transition of care in which new medications are ordered or existing orders are rewritten. Transitions in care include changes in setting, service, practitioner, or level of care. This process comprises five steps: (1) develop a list of current medications; (2) develop a list of medications to be prescribed; (3) compare the medications on the two lists; (4) make clinical decisions based on the comparison; and (5) communicate the new list to appropriate caregivers and to the patient."[8]

Unless there is another explanation that has not been made available in this case, the nurse practitioner either did not review the hospital medication list or did review the list, saw that the patient had refused the medication for 24 hours, and let the matter drop. One could argue that an astute clinician, seeing this patient's hospital course—multiple lower-extremity surgeries and orders for bed rest—would recognize the risk for thromboemboli and consider anticoagulation therapy as necessary, whether or not a surgeon had ordered it.

In any event, heparin did not appear on the list of discharge medications, and the patient did not take heparin for 3 days before his cardiac arrest. It is true that the thromboemboli may have been formed prior to discharge, and it is true that heparin is not always effective at preventing thromboemboli, but there is no way to prove those arguments. The fact remains that the patient should have been on heparin after his discharge from the hospital.

In this case, one could deduce that the nurse practitioner had not been involved in the day-to-day care of the patient and therefore was not able to write an effective postdischarge medication plan for the patient.

Again, if a nurse practitioner is a hospitalist employed by a hospital and a patient is admitted to the hospitalist service and the nurse practitioner has been involved in the patient's care, then I see no problem with the nurse practitioner performing the discharge service. But if the nurse practitioner and attending physician are not employed by the same entity, then the nurse practitioner and his or her employer, the hospital, are taking on liability by performing discharge services for a private physician group.

So, nurse practitioners should avoid writing discharge summaries and orders for patients who are not well-known to them. Taking on this important task without either knowing the patient or spending the time necessary to learn about the patient is putting the patient, the nurse practitioner, and the nurse practitioner's employer at risk. And although it may seem efficient to both hospital administrators and private physicians for nurse practitioners to perform discharge services, the compliance officers for both entities should review plans and sign off before hospital-employed nurse practitioners take on the discharge service for a private physician group.

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