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Patients' Right to Freedom of Choice in a COVID World

The following article is about waivers issued by CMS regarding discharge planning in hospitals. 

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Elizabeth
 
(877) 871-4062
ElizabethHogue@ElizabethHogue.net 

 
The Centers for Medicare and Medicaid Services (CMS) has issued a number of waivers of various requirements for healthcare providers. On May 11, 2020, CMS issued waivers regarding requirements for discharge planning for hospitals and critical access hospitals (CAHs). These waivers are described below.
 
CMS is waiving: Requirements of 42 CFR 482.43(a)(8), 42 CFR 482.61(e) and 42 CFR 485.642(a)(8) to provide detailed information about discharge planning as follows:
  • The hospital, psychiatric hospital and CAH must assist patients, their families or patients' representatives to select a post-acute provider by using and sharing data that includes, but is not limited to, home health agency (HHA), skilled nursing facility (SNF), inpatient rehabilitation facility (IRF) and long-term care hospital (LTCH) quality measures and resource use measures. The hospital must ensure that the post-acute care data on quality measures and resource use measures is relevant and applicable to patients' goals of care and treatment preferences.
  • Requirements and subparts of 42 CFR Section 482.43(c) related to  post-acute care services to expedite the safe discharge and movement of patients among care settings, and to be responsive to fluid situations in various areas of the country except as indicated below. Specifically, CMS is waiving requirements that hospitals ensure patients discharged home and referred for HHA services, or transferred to a SNF for post-hospital extended care service or transferred to an IRF or LTCH for specialized hospital services must:
    • 482.43(c)(1): Include in the discharge plan a list of HHAs, SNFs, IRFs or LTCHs that are available to patients;
    • 482.43(c)(2): Inform patients or their representatives of their freedom to choose among participating Medicare providers and suppliers of post-discharge services; and
    • 482.43(c)(3): Identify in discharge plans any HHA or SNF to which patients are referred in which hospitals have disclosable financial interests.
CMS is maintaining: Discharge planning requirements that ensure patients are discharged to appropriate settings with necessary medical information and goals of care as described in 42 CFR 482/43(a)(1)-(7) and (b).
 
Since most of these requirements are included in statutes, it is unlikely that CMS waivers will be permanent. Nonetheless, important rights are being waived temporarily that seem difficult to justify.
 
©2020 Elizabeth E. Hogue, Esq.  All rights reserved.
 
No portion of this material may be reproduced in any form without the advance written permission of the author.

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