• Elizabeth Hogue, Esq

Is Patient Freedom of Choice a Thing of the Past?

There are several developments regarding patients’ right to freedom of choice that providers, including hospital discharge planners/case managers, need to know about because they underscore the continuing importance of this right.

First, the South Shore Physician Hospital Organization (SSPHO) in South Weymouth, Massachusetts, has agreed to pay $1,775 million to settle allegations that it operated a recruitment grant program through which it paid kickbacks to its physician members in exchange for referrals. Kickbacks were paid in the form of cash grants to doctors who agreed to make referrals to SSPHO providers. Between 2001 and 2010, SSPHO allegedly approved 103 recruitment grants to 33 different physician groups. The grants were coupled with requests to grant recipients to refer patients to participating providers, including South Shore Hospital.

The primary basis for this action, according to the Justice Department, was that the recruitment grant program limited patients’ choices of providers and ultimately led to higher healthcare costs. This enforcement action seems to be a clear affirmation of the importance of honoring patients’ right to freedom of providers from the point of view of fraud and abuse compliance.

In addition, the Medicare Payment Advisory Commission (MedPAC) discussed the possibility of limiting patients’ choices of post-acute providers in order to better control costs during its meetings. These discussions have led some in the healthcare industry to suggest that patients’ choice of post-acute providers is “a thing of the past.” These commentators suggest that it’s not a matter of if, but how and when patients’ will be denied the right to freedom of choice of providers for post-acute services.


First, any such change would require amendment or repeal of various federal statutes that guarantee the right of patients’ to choose providers from whom they wish to receive services.

It would also require significant modifications to various regulations, such as Conditions of Participation (CoPs) for hospitals that govern discharge planning. A difficult process at best!

In addition, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has made it clear, as indicated above, that there is a direct relationship between “steering” patients and higher costs to the Medicare and Medicaid patients. The OIG continues to take enforcement action related to violations of patients’ right to freedom of choice for this reason.

It is also important to focus on the recent emphasis on engagement of patients in their care and consumer involvement in control over their care. This point is especially clear in regulations governing accountable care organizations (ACOs). Denial of patients’ right to freedom of choice is certainly inconsistent with the clear emphasis on this aspect of patient care.

Finally, patients’ right to freedom of choice is a fundamental right that cannot be abridged consistent with the values of our society and culture. Imagine what it would mean for the basic freedom to control healthcare, including the practitioners who provide it, if patients were no longer free to choose. To bring this idea a little closer to home, think about what it would be like if someone told you that you must receive care from a provider who may, for example, have provided substandard care to you or your family members in the past.

The idea that it may be more appropriate to deny patients’ the right to choose post-acute providers, as opposed to hospitals and physicians, is equally difficult to understand. Patients may receive post-acute services on a relatively longterm, intensive basis as opposed to services provided by hospitals and physicians. From this point of view, it may be even more important to preserve patients’ right to freedom of choice of post-acute providers, as compared to hospitals and physicians.

Patients’ right to freedom of choice of providers is here to stay, as it should be!

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Twitter: @HogueHomecare

©2020 Elizabeth E. Hogue, Esq. All rights reserved.

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