Keep eye on hospitals

Tuesday, March 31, 2009

Q. Are hospitals required to give patients a list of HME providers prior to discharge in order to comply with requirements related to their right to freedom of choice?

A. Hospitals are not required to give patients a list of HME providers.

The Balanced Budget Act of 1997 and conditions of participation in the Medicare program require hospitals to give patients lists of home health agencies and skilled nursing facilities. Patients may then choose providers from the lists, consistent with the right to freedom of choice. Hospitals may adopt internal policies that require discharge planners/case managers to provide similar lists of HME providers to patients despite the fact that there is no requirement to do so. 

Even though hospitals are not required to give patients a list of HME providers, they must honor their choice of provider when they voluntarily express it. Hospitals must do so based on court decisions that state that patients have the right to control the care provided to them, including who renders it. Federal statutes applicable to Medicare and Medicaid patients also require hospitals to honor choices voluntarily expressed by patients whose care is paid for by those programs.

Providers who know of violations of right to freedom of choice by hospitals should first document the violations. If possible, the documentation should include statements from patients whose rights were violated. Providers should then communicate with the CEOs of the hospitals involved in the violations. If these communications do not result in resolution of the issues, providers may wish to consider filing complaints with state survey agencies that will conduct complaint surveys at hospitals. If violations are found, surveyors will require hospitals to implement plans of correction and will survey and resurvey until hospitals come into compliance. If hospitals are unable to achieve compliance, they may be decertified from participation in the Medicare and Medicaid programs, a very serious consequence of noncompliance.

Elizabeth Hogue is a private practice attorney. Reach her at 877-871-4062 or