LegalEase: Protecting the patient’s right to select care

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

At present, the right of patients to choose providers who will render them home care is based upon three key sources:

1. Court decisions that establish the right of all patients, regardless of payer source and the setting in which services are rendered, to control treatment, including who provides it.

2. Federal statutes for both the Medicare and Medicaid Programs that establish the right of patients whose care is paid for by these programs to choose providers who render care in the absence of a waiver.

3. The Balanced Budget Act of 1997 (BBA) that currently requires hospitals only to provide a list of home health agencies to patients. According to the BBA, the list must meet these criteria:

  • Agencies that provide services in the geographic area where patients reside, are Medicare-certified, and request to be included must appear on the list given to patients.
  • If hospitals have a financial interest in any agency that appears on the list, this interest must be disclosed on the list.

Despite these requirements intended to protect the right of patients to choose providers, there is a lingering perception, however unfair it may be, that hospitals give lip service to patients’ right to freedom of choice but still operate based upon a culture that emphasizes ownership of patients and the need, and perhaps even the right, to go to great lengths to keep patients within the system.

Further developments in 2004 with regard to the right of patients to choose providers will make it even more clear that this lingering perception, whether true or not, is outdated.

Specifically, a proposed Condition of Participation (COP) for hospitals published in the Federal Register Nov. 22, 2002, likely will be published in final form this year.

This COP requires hospitals to keep statistics about referrals to home health agencies and other entities and to report them to the Centers for Medicare & Medicaid Services (CMS). In turn, CMS will publish these statistics to help ensure patient choice. This year also is likely to see more enforcement actions by state survey agencies with regard to the rights of patients to choose their providers. Recent action taken by a provider in Indiana is instructive.

Specifically, the provider documented instances of alleged violations and reported them to the state survey agency. Surveyors treated the reports like a complaint and conducted a complaint survey of the hospital’s practices.

Surveyors concluded that the hospital violated its own policies and procedures and BBA provisions in the process of making referrals for home health services. The hospital received a statement of deficiencies and was required to submit and follow a plan of correction.

This action opens the door for clear enforcement action against hospitals that violate patients’ right to freedom of choice. If violations are at the condition level of deficiencies, hospitals could, at least in theory, lose their right to participate in Medicare and Medicaid programs.

In addition, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services issued a special advisory bulletin on contractual joint ventures on April 30, 2003. The bulletin addressed contractual arrangements for the provision of items and services that the OIG previously identified as suspect in a special fraud alert on joint venture arrangements in 1989.

In 2004, the OIG almost certainly will undertake enforcement action against the types of joint ventures described in the special advisory bulletin.

The bulletin focuses on joint ventures in the form of contractual arrangements in which a provider in one line of business expands into a related health care business by contracting with an existing provider of a related item or service to provide a new item or service to existing patients. In other words, a referring provider with an existing base of patients contracts out substantially the entire operation of the related line of business to a managing party that is otherwise a potential competitor and receives profits of the business in return. Arrangements between some hospitals and home health agencies may be included in these types of arrangements.

The OIG further explains in the bulletin that the protection of safe harbors or exceptions to the kickback and rebate statute are unlikely to apply in these types of situations.

The right of patients to choose providers has generated considerable conflict within the provider community. This right is likely to be tested and reinforced throughout the year. Providers will require a thorough understanding of the issues in order to stay out of the fray.

[A complete list of Elizabeth Hogue’s publications is available by contacting: Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Phone: (301) 421-0143. Fax: (301) 421-1699. E-mail:]