Patients in America have legally guaranteed freedom of choice, but like any freedom, if you don’t fight for it, you may not get to exercise it. Some people unwittingly surrender their freedom of choice while others willingly sign it away in exchange for other benefits. Learn your rights and how to exercise them.

Freedom of Choice in Medicare & Medicaid

People with Medicare and Medicaid probably have the most rigorously protected freedom of choice. The Social Security Act mandates this patient right in sections 1802 and 1902 (a)(23). In short, patients with Medicare or Medicaid may receive health services from any provider qualified to participate. Who is qualified to participate? Here’s an example. If a person needs home health for stroke rehabilitation at home and that person wants Medicare to pay 100% of the bill, that person can choose any provider certified by Medicare as a home health agency. On the other hand, that person would not be free to choose a private-duty agency that is not certified by Medicare, an agency certified only for home hospice, etc.

Freedom of Choice for Patients with Private Insurance

A series of court decisions (common law) further guarantee freedom of choice to patients with private health insurance.¹ However, here is where this patient right starts to see serious limitations. Private health insurance companies commonly operate as health maintenance organizations (HMOs) or preferred provider organizations (PPOs). Exceptions notwithstanding, in these arrangements, customers agree that insurance will only pay when services are delivered by a short list of providers. In Houston, there are hundreds of Medicare-certified home health agencies, but private insurance contracts may limit customers to a few of them. When people sign-up for health insurance, they usually check the list of general practitioners. How many people would even think to check the list of home health agencies, hospice agencies, medical equipment providers, etc.?

Freedom of Choice for Patients with Medicare Advantage Plans

The difference between Medicare and private insurance begs the question, what about Medicare Advantage (MA) Plans which merge private and public insurance? Medicare Advantage Plans are private insurance plans that administrate seniors’ Medicare benefits. Most plans are through UnitedHealthcare, Humana, and Blue Cross Blue Shield, but there are others. Most MA plans are HMOs, so patients do not have freedom of choice in Medicare Advantage.

Freedom of Choice in ACOs

ACO stands for accountable care organization. ACOs are providers that have entered into a contract with Medicare where they try to deliver more cost-effective healthcare and get some of the savings back as a bonus. For instance, one possible ACO organization could be a large family practice group, a community hospital, a cardiologist, a dialysis center, and a home health agency, all working together to improve organization during patient transitions. It is a common misunderstanding that ACOs can limit a patient’s freedom of choice. They should not attempt this. Beneficiaries seeing health care providers in ACOs always have the freedom to choose doctors inside or outside of the ACO. Members of ACOs have the right to tell patients their recommendations for other providers and why, but they are violating the law if they give the impression that patients have limited choice due to the ACO.

Specific Rights in Freedom of Choice of Providers

• Time: Situation allowing, patients are entitled to the time needed to make an informed decision. For instance, doctors and care planners in facilities might know for days that a patient will need home health. They should tell the patient as soon as possible, so the patient can research his or her home health decisions. An unethical practice would be to wait to the last minute to ask the patient’s preference for home health, give the patient an uninformative list, and mention that this or that home health is the one they recommend.
• Organization: Original Medicare and Medicaid offer full freedom of choice. ACOs do not limit a patient’s rights. HMOs, PPOs, Medicare Advantage plans, and other private contracts may and usually do limit choice.
• Financial Interest: Patients have the right to be informed automatically if a provider has a financial interest in any referred-to provider.
• Recommendations: Patients have a right to hear their doctors’ recommendations for home health, hospice, and other referred-to providers. No external organization may tell a doctor what he can and can’t say about personal medical experience with local providers, and there is no law telling doctors they can’t offer recommendations.¹ Employers, may, however, create rules and guidelines about what their employee doctors may and may not say.
• All Services: Healthcare providers may not threaten to limit the services they offer based on choice of other provider types.

How to Protect Your Freedom of Choice in Healthcare Providers

In conclusion, all Americans start with a right to receive healthcare from the provider they choose. One way to lose that freedom is through private insurance contracts, especially Medicare Advantage plans, so be alert to where choices are limited when choosing plans. The other way to lose that freedom is by not exercising it knowledgably. People can protect their freedom of choice by considering what different types of healthcare providers they will need in the future, researching their choices, and knowing their rights.

References

1. Hogue E. How to Honor Patients’ Right to Freedom of Choice: What case managers / discharge planners need to know about patients’ right to freedom of choice of providers. 2012. PDF.