Patients' Right to Freedom of Choice of Providers

Patients have the right to choose the providers that render care to them. This right is extremely important. Just imagine if you were told that you had to receive care from a specific provider that you did not choose, especially if you thought the care provided was substandard. And yet, at least anecdotally, providers often forget the importance of this right and ride roughshod over it! After all, even patients enrolled in managed care organizations (MCOs), including Medicare Advantage Plans, have the right to freedom of choice. They can always decide to pay for care themselves even if MCOs will not.

There are several sources of patients’ right to freedom of choice of providers:

Court decisions, or the common law, clearly state that all patients have the right to control the care that is provided to them, including who renders it.

Federal statutes also guarantee the right to freedom of choice of providers to both Medicare and Medicaid patients.

Specifically, 42 CFR 1395a, Section 1802 states as follows:

"(a) Basic freedom of choice. – Any individual entitled to insurance benefits under this title may obtain health services from any institution, agency, or person qualified to participate under this title if such institution, agency, or person undertakes to provide him such services…"

The Balanced Budget Act of 1997 and Conditions of Participation (CoPs) for discharge planning of the Medicare Program also affirm patients’ right to freedom of choice of providers.

CoPs of the Medicare Program for Long Term Care Facilities reaffirm the right of all patients to “free choice” and state that every resident has the right to self-determination. The CoPs also indicate that every resident has the right to be free of coercion and to participate in the planning of care and treatment.

Finally, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, has clearly stated that violations of patients’ rights to freedom of choice also violate applicable fraud and abuse prohibitions. In “OIG Compliance Program Guidance for Nursing Facilities,” for example, published in the Federal Register on March 16, 2000, the OIG stated that denial of a resident’s right to participate in care and treatment decisions may constitute fraudulent conduct.

Some states have laws regarding patients’ right to freedom of choice. Perhaps one of the most eloquent of these statutes is in Arizona and states as follows:

“The power to require or regulate a person’s choice in the mode of securing lawful health care services, or to impose a penalty related to that choice, is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the tenth amendment. This state exercises the sovereign power to declare the public policy of this state regarding the right of all persons residing in this state in choosing the mode of securing lawful health care services.”

The statute goes on to say:

“It is the public policy of this state, consistent with all constitutionally enumerated rights, as well as those rights otherwise retained by the people, that every person in this state may choose or decline to choose any mode of securing lawful health care services without penalty or threat of penalty.”

Patients’ right to freedom of choice of providers is also firmly rooted in ethical principles. All patients clearly have the right to autonomy.

Now is the time to renew the commitment to honoring this essential right.

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