Health Care Records – a Primer for Attorneys

Obtaining health care records is one of the first things that needs to happen in any health care related case. On the Defense side, if the record of care is correctly documented and maintained, it can make it very easy to defend a client. Good documentation is usually a facility’s best defense in a legal case. However, if the documentation is incomplete, it could cause additional problems. Such as when a staff member documents a problem, but forgets to document what was done about the problem.

On the Plaintiff’s side, the record of care, or lack thereof, can provide hard evidence of breaching the standard of care. If the resident is living, they can request their full records. If the resident is deceased, the person with the Power of Attorney can request the records. In most states, the next of kin can as well.

Documentation is comprised of pieces of paper or computer file documents. These contain written evidence of facts, opinions, information, records of events, and instructions. The word “document” is derived from the Latin word “doceo,” which means, “to teach.”. Written care and service documentation is a way of teaching or sharing with others what is known about a resident.

Types of Documents

Medical Facilities and Social Service Facilities used the following types of documents:

• “Form” used to collect information about a person about specific things; often has check off boxes.
• “Plan” is then created which describes “how to”, “when to” and “who to” provide services.
• “Records” or “Log” forms are used to “record” information about the resident, the care and services provided, and the preservation of it for later use.
• “Sheet,” such as “Face Sheet” or “Treatment Sheet,” are forms that can be a plan or a record.

Basic Health Care Confidential Documents:

• Residential Confidential Information
• Employee Confidential Information
• Protected Confidential Business Information
• Risk Management Confidential Information
• Routine Confidential Business Information

Differences – Medical Facilities Verses Social Care Homes

Documentation of the care and service which was provided is important for continuity of care and accountability. In the care service delivery system, the old adage “not documented, not done” is absolutely true for hospitals and nursing homes. Yet, not so much for community based care homes and assisted living homes, which are social service facilities, not health care facilities.

There are huge differences when it comes to recording care in skilled nursing facilities, verses recording care in community care homes and assisted living communities. Hospitals and skilled nursing facilities have been strongly regulated and have been required to document care since the 1970s. Assisted living and community based care is still in its growth stage. In some states very little documentation of care is required.

Recent changes in the federal MediCare Waiver Program, outcries for reform from the public. The need to improve the standard of care for residents residing in assisted living and community based care homes has had some effect on improving care documentation requirements. A few states have updated their record of care requirements for assisted living and community based care such as New York’s Reform for Community Based Care and recently California’s RCFE Reform Laws 2014. Other states, including Alabama, Arkansas, Connecticut, Florida, Kansas, Mississippi, Oregon, Pennsylvania, Washington and Wisconsin have also made significant improvements. Yet, in many states there is still a great need for reform.

Care Service Documentation

When providing care services, the record of care is an extremely important form of communication. Care service documentation can help the caregivers and health care practitioners see the progress, or lack thereof, for each resident which can help in getting the resident the care and service that they need. No matter what type of care facility or home a resident is residing in, a good record of care should read like a chronological health care story, specifying care needs, problems, plans, changes, who is responsible for what services, who was contacted, follow up and so forth. Plus, everyone reading the record should be able to understand what was written and what is going on with the resident.

Medical Facilities and health care facilities, which include Hospitals, Nursing Homes, and Medical Rehabilitation Facilities, have strong documentation requirements to meet. Most of the required forms and plans are dictated by MediCare. In fact, before a resident can even get into a long term medical care facility, MediCare requires the Preadmission Screening and Resident Review (PASRR) form to be completed. The required forms for medical and health care facilities are very “facility type specific,” and too numerous to list in this basic overview. The good news is that established clinical practice guidelines (CPG), which define the standard of care, are available for medical providers to follow. This is not the case for most assisted living facilities and community based care homes. However, unless proven by scientific fact, CPGs are considered hearsay, unless the author testifies.

What medical and health care facilities are all required to do on these various forms is record the care and services provided. In medical and health care facilities, one of the most common ways of recording care services to meet the standard of care, is called S.O.A.P. Staff is taught to document using the SOAP method, which breaks the subject matter into 4 specific categories:

S – Subjective Statements made by the resident, or direct quotes from others who may have participated. This includes the resident’s perception of his/her condition or changes to a condition, i.e. “she said.” Care staff is asked to refrain from writing subjective statements and opinions.

O – Observations – Objective and factual statements only. Objective statements are based on fact. Staff documenting that the resident is “stinky and dirty,” is a subjective statement; whereas, “ I observed the resident had a strong body odor, and his clothes were soiled and stained,” is a proper objective statement. Staff is taught to document what they factually observed, i.e. what was seen, heard, felt, or what they smelled. Instead of documenting, “I think the resident’s ankle is broken.”. The staff is taught to document, “the resident is complaining of pain in his right ankle, there is noticeable swelling, and the color is slightly blue.”. Staff is taught to stick to the facts. Another example would be, staff is told that they should not write that the “resident was a sloppy eater”. Instead, they are taught to document, “I observed the resident dropped food everywhere, including the front of his clothes.”

A – Assessment– Assessments are excellent tools. They are used as guidelines to help the doctors, nurses, care staff and facility management make decisions about the custodial care and services the resident may need. There are many types of assessments, most are required by MediCare to cover the services provided. In medical facilities, usually, the appropriately skilled professional will complete the required assessment. A nurse will do a nursing assessment, a physical therapist will do the PT Assessment. Whereas, the types of assessments done by laymen in social service facilities are done for non-medical purposes.

P – Plan – A good care plan will include the diagnosis, areas of concern, specific care and service needs, plans and interventions to meet those needs, a list of those persons who will be responsible for the various aspects of care and services, interdisciplinary input including the responsible party, progress, all safety precautions which need to be taken on behalf of the resident, support of third party providers, goals and time frames.

Social Care Facilities, which includes Assisted Living Communities, Adult Residential Homes, Board and Care Homes, Sheltered Care, Group Homes, Adult Day Care and other types of community based care homes have various documentation requirements, depending on what state they are located in.

Basic Records To Request

In general, both medical facilities and social service facilities should have the following documents:

Resident Facility Records – Resident’s full record, including admission records, all care service records, assessments, vital sign records, dietary records, activity records, and activities of daily living records; including any records for third party providers, such as home health providers, physicians, hospitals and all records kept in other locations, electronic resident records, faxes, pager records and emails.

Resident’s Medical Records – Received directly from providers. Reports and records from the resident’s physician(s) involved, medical consultants, all home health agency records, the hospital(s) and medical clinic(s). If medication issues may arise, you may want to get records directly from the pharmacy. You may want to also get the local ambulance and fire department records which provided emergency services to the resident. I.e. taking them to the hospital.

Staff Records – Related staff’s personnel file including application, background check, physical, orientation training, all training and in-service records, evaluations, disciplinary actions, job descriptions, communication notes, related staff schedules and time records. Bonus plans or commission incentive program and an employee manual. All copies of the last 1 to 3 years Personnel Reports. Any records of Home Health personnel training the staff person on specific needs for the resident.

Facility Business Records – All advertisements, staff meeting(s) & Inservice documents as related to the issue, payroll records, bonus records, marketing program, monthly census report (if any) for time period of incident, Sign In & Out record (if needed for time period), other service records like Housekeeping, Maintenance etc., as needed. If you can get it, facility videos, and Resident and/or Family Council Meeting notes/reports are great to have for plaintiffs.

Additional Records – There are additional records which should be obtained specific to the type of licensed facility or care home. Any expert covering that field should be able to give you a list of the additional records to request.

General Documenting – Rules Most Care Staff are Taught: Cross out errors with a single line, initial, date and write “entry error.”. Always initial and date every entry you make.

When recording information about the resident, make sure it is accurate. Remember that it could be used in a legal proceeding.

• Don’t ERASE! Don’t White Out!
• Make sure your writing is legible.
• Only allowed authorized personnel are to see the resident’s record. Do not leave the Resident’s Record where others can see it. Keep computer screens from unauthorized viewing.
• Do not leave detailed messages on an answering machine; instead leave a message as to how urgent it is for them to return your call.
• Always require a signed consent form, authorized by resident, his or her legal conservator or guardian, or the employee, or his or her legal representative before you send out information, or allow anyone who is not already authorized to have access to read the record(s).