• Elizabeth Hogue, Esq

The Real Problem With Patient Freedom of Choice

Based on the common law or court decisions, the Balanced Budget Act of 1997 (BBA), and regulations of the Medicare Program governing discharge planning in hospitals, patients clearly have the right to freedom of choice of providers. Both providers and patients seem to agree that this right is important to patients.

This right has, however, generated considerable conflict between referring providers and recipients of referrals. Recipients and potential recipients of referrals express continued doubt that referring providers honor patients’ right to freedom of choice. Referring providers often say that they scrupulously abide by requirements related to this right.

The real problem, however, seems to be that patients’ often cannot choose. Perhaps it’s that they lack enough knowledge to make choices. It may be that they are in pain or too ill to participate in making choices. It may be something else entirely. Now we have a recent study that makes it clear that this is indeed the case.

The study was recently published in the Journal of the American Geriatrics Society (Simon N. Elkind et al, Influences on Care Preferences of Older People with Advanced Illness: A Systematic Review and Thematic Synthesis, Journal of the American Geriatrics Society, 2018). The authors of the study reviewed 57 studies about preferences of older adults. Preferences included where people wanted to be cared for, the kinds of communications and decision-making they wanted, and the quality of life they expected to have over time.

Key findings of the study were as follows:

  • The level of support from families was the most important influence on care preferences. This was especially true for preferences about the place where people wished to receive care, such as at home instead of in a healthcare facility.

  • Older adults’ experiences of previous illness and of caring for others also influenced preferences about their own future care.

  • Being more seriously ill strongly influenced care preferences, especially for older adults who were aware that they were unwell.

Researchers concluded that providers should take these influences into account when considering patients’ preferences. They should also make sure that family members or other caregivers who are important to patients are included in discussions about future care.

So, it seems clear that the difficulties patients have in making choices about future care are significant. Conditions of participation (CoPs) of the Medicare Program for hospitals and standards of care published by the Case Management Society of America (CMSA) and revised in 2016, however, certainly make it clear that case managers/discharge planners must involve patients and their caregivers in the process of decision-making about care they receive. 42 CFR Section 42.43(c)(5), for example, states as follows: “As needed, the patient and family members or interested persons must be counseled to prepare them for post-hospital care.”

At least anecdotally, the time and resources of case managers/discharge planners to engage with patients and their caregivers regarding their choices seems very limited. The perception sometimes seems to be that case managers/discharge planners are so overtaxed that they barely have time to make referrals, much less engage in meaningful interactions with patients and their families about their choices.

But one thing seems clear: patients will continue to find it difficult to exercise their right to freedom of choice as long as they lack information about how to choose. The real challenge for both referring providers and recipient providers is how to educate patients and their families about this right.

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Twitter: @HogueHomecare

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