Discharge Planning Advisor

CMS keeps emphasizing patients' right to choose

Discharge guidance refers to BBA

Federal regulators continue to make it clear that they are serious about patients' right to freedom of choice of providers, says Elizabeth E. Hogue, Esq., a Burtonsville, MD-based attorney specializing in health care issues.

Draft supplemental compliance guidance published recently by the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services, Hogue notes, refers to requirements of the Balanced Budget Act (BBA) of 1997. The excerpt below, she adds, specifically relates to patients' freedom of choice:

"When referring to home health agencies, hospitals must comply with section 1861(ee)(2)(D) and (H) of the Act, requiring that Medicare participating hospitals, as part of the discharge planning process, (i) share with each beneficiary a list of Medicare-certified home health agencies that serve the beneficiary's geographic area and that request to be listed and (ii) identify any home health agency in which the hospital has a disclosable financial interest or that has a financial interest in the hospital."

Based upon that excerpt, Hogue says, the OIG has shown a clear willingness to treat violations of the requirements of the BBA as a form of fraud and/or abuse of federal health care programs.

The OIG also indicated that it has authority to exclude individuals or entities from participation in the federal programs if they provide unnecessary items or services, she adds, such as those in excess of the needs of the patient, or substandard items, including those of a quality that fail to meet professionally recognized standards of health care.

The OIG further states that knowledge and/or intent are not required for exclusion under this provision, Hogue continues. The exclusion can be based upon unnecessary or substandard items or services provided to patients, she says, even if the care provided is not paid for by the Medicare or Medicaid programs.

Violations of hospital conditions of participation, including those that govern discharge planning, or any other applicable standards of care may result in either over- or under-utilization of services and sanctions by the OIG. "It is logical to conclude that applicable standards of care also include the requirements of the BBA."

Consequently, she adds, hospitals that violate applicable standards of care related to patients' right to freedom of choice of providers and discharge planning may be subject to sanctions by the OIG.

"It is also important for discharge planners and case managers who work for hospitals to know that there is a broad array of tools available to providers and regulators to enforce patients' rights," Hogue says, including the following:

  • Helping patients pursue violations of their common-law rights to freedom of choice of providers regardless of payer source or type of care rendered primarily through the use of signed statements that describe violations.
  • Helping patients pursue violations of two federal statutes that guarantee Medicare and Medicaid patients the right to freedom of choice of providers primarily through the use of signed statements that describe violations.
  • Reports to the Centers for Medicare & Medicaid Services (CMS) regional and central offices of violations of patients' rights to freedom of choice of providers by providers who participate in the Medicare/Medicaid programs.
  • Reports about violations of patients' rights to state surveyors who treat such information as complaints and conduct surveys of hospitals and other providers that participate in the Medicare and Medicaid programs.
  • Reports to the OIG of violations of patients' rights to freedom of choice of providers and/or violations of applicable standards of care that may result in sanctions against providers.

"There are more and more avenues for both patients and providers to pursue violations of patients' right to freedom of choice of providers," Hogue says. "Discharge planners and case managers should be proactive when they encounter such violations."

(Editor's note: Elizabeth Hogue may be reached at ehogue5@comcast.net.)