Doctors and hospitals have certain obligations to provide competent care to patients. This duty of care does not end at the hospital doors. When a patient is discharged, the hospital/healthcare provider has a responsibility to ensure that any discharge plan is made in the best interests of the patient and takes into account the medical needs of the patient. Everyone, from the treating physician to the discharge planner, must take certain steps to ensure that the goals of providing competent care are met even once the patient has left.
In creating a discharge plan, the American Medical Association establishes guidelines for the ethical obligations of physicians. Physicians must collaborate with healthcare professionals to craft a comprehensive discharge plan without regard to clinically irrelevant considerations (such as insurance status, immigration status, etc.). The discharge plan must be appropriate to the patient’s circumstances and must prioritize the well-being of the patient.
In many cases, the discharge plan that a physician creates for a patient will involve ongoing nursing care and/or release into a long-term care facility, skilled nursing facility or other rehabilitation or care center. In these instances when a patient is to be discharged into skilled care or assisted living, the responsibility then shifts to the discharge planner to help ensure that the patient is placed into the right care situation and that the patient’s rights and autonomy are respected.
The Right to Choice
When leaving a healthcare facility, guidelines set forth in the Social Security Act section 1861(ee)(1) indicate that discharge planners must participate in a process designed to ensure “a timely and smooth transition to the most appropriate type of and setting for post-hospital or rehabilitative care.” Discharge planners, however, cannot simply choose the right facility for patients. Patients have the right to autonomy and the right to make a choice on the care facility that they wish to go to.
Discharge planners, therefore, must provide a choice to the departing patient. Patients derive their right to choose from a variety of different sources including:
Common law (judicial decisions in case law that have become precedent).
Medicaid and Medicare “Freedom of Choice” laws
The Balanced Budget Act of 1997
Each of these different legal sources provides certain protections to patients. For example, the Balanced Budget Act of 1997 mandated that hospitals participating in Medicare provide a list of home health agencies that request to be on the list provided the agencies are certified by Medicare and that they provide services in the geographic area where the patient lives.
Today, the right of patients to receive a list of participating home healthcare agencies and skilled nursing facilities is codified in the Code of Federal Regulations section 482.42. The relevant code section is referred to as a Condition of Participating (COP) for hospitals. Essentially, this means hospitals who participate in Medicaid/Medicare and receive Medicaid/Medicare funding/payment for patients must comply with this code section and must provide patients with a list of both skilled nursing home facilities and skilled home care providers who accept Medicaid/Medicare and who are in the patient’s geographic area.
The code section does, however, provide hospitals the right to limit the list for patients enrolled in a managed Medicare program to providers who are part of the managed care program.
What Does the Right to Choice Mean to Patients?
When providers offer patients options in discharge, as required, hospital discharge planners need to do more than just provide a list of facilities The discharge planner has a responsibility to ensure that the patient receives a choice of appropriate and available options that can provide the best continuing care to meet the patient’s needs.
This doesn’t mean offering the longest list, and it doesn’t mean offering a list of only the cheapest options. Instead, a number of different things should be taken into account by discharge planners preparing the list of appropriate facilities for patients. Factors that should be considered include:
Whether there are beds available in the facility. According to Nursing Center, the Federal Register/Vol. 69, No. 154/Wednesday, August 11, 2004/Rules and Regulations Page 49227 established that patients should be provided with information on what skilled nursing facilities have available beds.
Whether the facility or care provider can meet the needs of the patients. According to Health and Human Service’s, a facility is appropriate to be offered as a choice to patients provided it can meet their assessed medical needs.
The list of options made available to patients, therefore, needs to be a list that takes into account their unique medical needs and that offers them viable skilled nursing facilities or post-hospital care options that will allow for an effective transition.
While a physician can recommend a specific post-acute care provider and a hospital administrator can limit a list to a certain selection of providers who are equipped to meet the needs of the patient, the list must be made only by taking into account the needs of the patient, the patient must be informed of the right to choose and the patient given a list of different viable options so the right to choose is meaningful. While the list doesn’t necessarily have to be in writing in every case and hospital policies differ on whether the list is written or delivered verbally, the fact that a choice was given must always be documented for a hospital to meet its legal obligations.
About the Author
Christy Rakoczy has a JD from UCLA School of Law and an undergraduate degree in English Media and Communications from University of Rochester. Her career background includes teaching at the college level as well as working in the insurance and legal industries. She is currently a full-time writer who specializes in the legal, financial and healthcare sectors. Ms. Rakoczy writes online content as well as textbooks for adult learners.