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Fraud Implications of Violations of Patients’ Right to Freedom of Choice of Providers

  • By: VALA
  • On: 03/11/2021 10:46:18
  • In: Law
  • Comments: 0
The following article is about patients' right to freedom of choice and enforcement by the OIG.

Please do not hesitate to contact us with comments, questions, or requests for additional information.
 
Sincerely,
 
Elizabeth
 
Elizabeth E. Hogue, Esq.
(877) 871-4062
 
Regulators continue to indicate that they are serious about patients' right to freedom of choice of providers. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), for example, published draft supplemental compliance guidance for hospitals. This supplemental guidance includes requirements related to patients' right to freedom of choice of providers as described below.
 
Specifically, the OIG directly addressed the compliance issues related to freedom of choice in the following:
 
"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 the above, the OIG has indicated a clear willingness to treat violations of the requirements of the Balanced Budget Act and Conditions of Participation (CoPs) of the Medicare Program for discharge planning as a form of fraud and/or abuse.
 
The OIG also indicated that it has authority to exclude any individual or entity from participation in federal and state health care programs if they provide substandard items, including items or services of a quality which fails to meet professionally recognized standards. 
 
The OIG further stated that knowledge and/or intent are not required for exclusion under this provision. The exclusion can be based upon substandard items or services provided to patients, even if care provided to patients is not paid for by the Medicare or Medicaid Programs.
 
The OIG went on to state that violations of hospital CoPs, including those that govern discharge planning or any other applicable standards of care, may result in sanctions by the OIG. Standards of care include the requirements of the Balanced Budget Act of 1997 and CoPs.
 
Consequently, 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/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, including:
 
  • Assisting patients to pursue violations of their common law rights to freedom of choice of providers regardless of payor source or type of care rendered primarily through the use of signed statements that describe violations
 
  • Assisting patients to 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 and Medicaid Services (CMS) regional and central offices of violations of patients' right to freedom of choice of providers by providers who participate in the Medicare/Medicaid Programs
 
  • Reports to state surveyors about violations of patients' rights who treat such information as complaints and conduct surveys of hospital and other providers that may result in Statements of Deficiency, corrective action and follow-up surveys
 
  • Reports to the OIG of violations of patients' rights to freedom of choice of providers and/or violations of applicable standards of care, which may result in sanctions against providers
 
There are a number of avenues for both patients and providers to pursue violations of patients' right to freedom of choice of providers. Providers and discharge planners/case managers should be proactive when they encounter such violations.
 
 
©2021 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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