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Discharge Planners/Case Managers Must Make Neutral Presentations
of Patients’ Right to Freedom of Choice of Providers
Elizabeth E. Hogue, Esq.
Office: 877-871-4062
Fax: 877-871-9739
E-Mail:
ElizabethHogue@ElizabethHogue.net
All patients have the right to freedom of choice of providers.
Discharge planners/case managers have legal and ethical
obligations to honor this right.
There are a number of sources of this right as follows:
1)
All patients have a common law right, based upon court
decisions, to control the care provided to them, including who
renders it. Thus, when patients, regardless of payor source or
type of care, voluntarily express preferences for providers,
their choices must be honored.
2)
Federal statutes of the Medicare and Medicaid Programs guarantee
Medicare beneficiaries and Medicaid recipients the right to
freedom of choice of providers. When Medicare and Medicaid
patients voluntarily express a preference for a home health
agency, these choices must be honored.
3)
The Balanced Budget Act of 1997 (BBA) requires hospitals to
develop a list of home health agencies that meet the following
criteria:
a.
Are Medicare-certified;
b.
Provide services in geographic areas where patients reside;
and
c.
Ask to be on the list.
In addition, if hospitals place the names of agencies in which
they have a discloseable financial interest on the list, the
relationship between the hospitals and the agencies must be
disclosed on the list.
This list must be presented to all patients who may benefit from
home health services so they can choose the home health agency
that they wish to provide services to them.
4)
Hospital Conditions of Participation (COP's) of the Medicare
Program for discharge planning include the basic requirements of
the BBA described above. Hospitals are subject to possible loss
of reimbursement from the Medicare and Medicaid Programs if they
do not meet the COP’s.
Consequently, discharge planners/case managers are required to
present the list described above to patients without
“prejudicing the case.” Anecdotally, it appears that discharge
planners/case managers may sometimes say things to patients that
they should not when they present the list of home health
agencies to them such as:
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“Choose the hospital’s home health agency so that we can get
orders faster and you can go home sooner.”
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“The Hospital’s home health agency can provide continuity of
care, which other agencies can’t.”
Or even worse, it appears that discharge planners/case managers
may attempt to convince patients to change clearly stated
choices by saying things like:
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“Why do you want to choose that agency? They are no good.”
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“They’re terrible! Just go with our agency.”
A
“neutral presentation” of the list means that discharge
planners/case managers take the list described above to
patients’ rooms and say something like the following (and
nothing else that may persuade patients to choose particular
agencies):
“You have the right to choose the home health agency that you
would like to provide services to you. Here is a list of
agencies that provide services in the area in which you reside.”
If, in response, patients choose agencies, then case
managers/discharge planners may not try to dissuade them or make
negative comments about their choices. The only response to
patients who make choices from case managers/discharge planners
must be either “Yes, Ma’am” or Yes, Sir.”
If patients say they cannot choose, case managers/discharge
planners must assist them to do so. Case managers/discharge
planners, however, do not ever make choices for patients.
Instead, case managers/discharge planners may help patients to
choose by saying something like the following:
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“As you can see from the list, our hospital owns this agency.
Perhaps you would like to choose this one.”
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“Our hospital has a preferred provider relationship with this
agency. Perhaps you would like to choose this one.”
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“This agency has a specialty program in orthopedics, which will
be the focus of the services you need, so perhaps you would like
to choose it.”
Patients are likely to adopt the suggestions of case
managers/discharge planners under the circumstances. There is a
clear difference, however, between choosing for patients, which
case managers/discharge planners cannot do, and assisting
patients with making informed choices. Discharge planners/case
managers must never lose sight of the fact that patients are in
the drivers’ seats. Patients’ choices “trump!”
©Copyright, 2009.
Elizabeth E. Hogue, Esq. All rights reserved.
No portion of these materials may be reproduced by any means
without the advance written permission of the author.
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