Discharge Planning Advisor: Carefully follow the law for post-acute referrals

Make sure you honor patients’ choices

As government agencies begin to crack down on providers who are not honoring patient choices, hospital case managers should be more diligent than ever when referring patients for post-acute services.

Case managers should be careful about their relationships with the entities to which they refer and should give patients a choice for post-acute services, making sure at the same time that the choices are appropriate for the particular needs of each patient, the experts say.

The Centers for Medicare & Medicaid Services (CMS) and the Office of the Inspector General (OIG) are taking a closer look at patient referrals for post-acute services, points out Elizabeth E. Hogue, Esq, a Burtonsville, MD, attorney specializing in case management issues.

"The stakes are getting higher. These federal agencies have said they’re going to carefully scrutinize referrals and crack down on individuals who are blatantly violating the rules," she says.

Hogue cites three sources of the right of patients to choose their providers:

  • The common law right as reflected in court decisions, which have said that patients have the right to control the treatment they receive, including who provides it. This applies to all patients regardless of payer source and type of carrier.
  • Federal statutes that state beneficiaries of Medicare and Medicaid have the right to choose the providers who render care.
  • The Balanced Budget Act of 1997 currently applies only to hospitals and only to referrals for home health services. The law requires hospitals to present patients with a list of home health agencies so they can choose which agency they want to provide services.

In addition, if a physician orders services from a particular provider, the hospital must honor the physician’s order unless the patient objects and chooses another provider.

Be mindful of the law, but don’t make the mistake of just handing patients an alphabetized list of agencies and asking them to choose one from the list, suggests Jackie Birmingham, RN, MS, CMAC, vice president of clinical design for Curaspan, a provider of connectivity and network management across the post-acute continuum.

"When you give the patient an alphabetized list of agencies and the provider they select doesn’t meet the patient’s needs, you waste everybody’s time," she points out. "It’s unfair to go in to the patient’s room and give them three choices if there’s only one facility that meets their needs."

Instead, case managers and discharge planners should assess what a patient needs and narrow down the list of choices to appropriate and viable options, Birmingham adds.

The law doesn’t prohibit case managers from suggesting entities in which the hospital has a financial interest but, whenever possible, the patient should be given a number of appropriate choices, she notes.

Because case managers are involved in decisions about discharges and transfers and frequently refer their patients to other providers, suppliers, or vendors for services, they may be exposed to a number of potential liabilities, some as an individual and some to their employer.

Case managers should be aware of anti-kickback legislation that prohibits them from accepting gifts from any entity to which they are in a position to make referrals, Hogue points out.

The prohibition would extend to receiving free discharge planning services from a vendor, she says.

For instance, a home care or hospice care provider might offer services that supplant the services of a hospital-based discharge planner or care manager. It might be tempting to let them relieve you of some of your duties, but don’t do it.

"Hospital case managers who function as discharge planners need to be careful about any kind of kickbacks or rebates in the form of items, money, or free services," Hogue adds.

The crackdown by the OIG and CMS comes at a time when the home care industry is subject to a new reimbursement system, which allows them to aggressively market their services.

"They’re really putting discharge planners and case managers under pressure with regard to referral issues," Hogue says.