A word to the wise about patient freedom of choice

I received an email from industry attorney Elizabeth Hogue yesterday that included an article she wrote on patient freedom of choice. This issue comes up from time to time, and HME providers are always very passionate about it.

When it comes to choosing an HME provider, there are no gray areas. Patients have the final say--not physicians.

I think you'll find this article very informative.

Mike Moran

Physicians and Patients' Right to Freedom of Choice

Providers are increasingly concerned that physicians may violate patients' right to  freedom of choice of providers.

First, it is important to note  that longterm care, home health, including some services provided by private  duty agencies, home medical equipment (HME) and hospice services are  provided under the supervision of physicians based upon specific orders from  them.  Because physicians supervise these types of services, they are  at risk for legal liability, along with providers and staff members, if  providers supervised by physicians do no meet applicable standards.

Consequently, physicians have a clear interest in assuring the quality of care rendered by other providers to their patients.  Physicians may, therefore, choose to designate in their orders which  providers will render services to their patients in order to help assure  quality of care and manage their risks of  liability.

Nonetheless, all providers, including physicians, are required to abide by patients' right to freedom of choice of providers. There are two (2) sources of this right that apply to physicians:

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 certain  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.  (Medicaid recipients may have  waived this right, if they participate in waiver programs.)   Consequently, when Medicare patients and non-waiver Medicaid patients  voluntarily express preferences for providers, these choices must be  honored.

Consequently, physicians' orders based upon quality of care concerns for specific providers should be implemented unless patients express preferences to receive services from different  providers.

If, however, patients voluntarily express preferences or choose providers other than providers ordered by their  attending physicians, patients' choices "trump" physicians' orders and must  be honored.

Physicians may then choose whether or not they wish to supervise services and assume the risk of services provided by providers  different from those they ordered.

It is at this point that physicians and their office staff members must be especially cautious.  If they try to "strong arm" patients into receiving services from  providers physicians' prefer instead of providers chosen by patients,  consent to such services may not be voluntary. Statements by  physicians or their employees, for example, that the doctor will no longer  care for them if they do not accept services from the provider the doctor  ordered may amount to duress which invalidates any consent by patients to  such services.

Attempts to force patients to accept physicians' choices have ethical implications as well.  Patients' right to act autonomously may be compromised by the insistence of physicians or  staff members.

From a very practical point of view, physicians who are serious about quality of care and sound risk management should talk  to patients about their preferences for providers before they write orders  for specific providers.  Patients will then have an opportunity to understand physicians' preferences, to express their own choices and/or to  resolve any differences between physicians and patients.

Discharge planners/case managers who encounter instances in which physicians and their employees put inappropriate pressure on  patients to use providers chosen by physicians should carefully document  violations of patients' right to freedom of choice. Documentation should preferably be in the form of signed statements from patients. These statements should be forwarded to physicians with a letter from providers/case managers.  A word to the wise should be sufficient!

Practitioners who encounter physicians who persist in pressuring patients despite their letters and documentation from patients  may wish to report violations to both the central and regional offices of the Centers for Medicare and Medicaid Services (CMS). Such reports should include documentation from patients.

The competition among post-acute providers continues to "heat up."  The rights of patients, however, cannot be trampled despite fierce competition among  providers.

(c)Copyright,  2010.
Elizabeth E. Hogue, Esq.  All rights reserved.
No portion  of these materials may be reproduced in any form without the advance written  permission of the author.