Hospital Discharge Protections for Medicare Patients in Massachusetts

By Harry S. Margolis

It has become a truism that hospitals attempt to discharge patients “quicker and sicker.”  And well they should.  Hospitals are no place to recuperate from surgery or an illness. They can be noisy places where it’s difficult to sleep; they breed their own infections; staying in bed can allow muscles to weaken; and they’re very expensive – their beds should be reserved for those who need the acute care that only hospitals can provide.

All of that said, sometimes hospitals seek to discharge patients too early, when they still need a hospital level of care, when they’re too unstable to move, or most often when there’s no appropriate place for the patient to move – either necessary care has not yet been arranged at home or an acceptable rehabilitation hospital or skilled nursing facility placement has not been located.      

Fortunately, both federal and state laws provide protections from premature discharge in those instances.

Medicare

The great threat of discharge for Medicare-covered patients is not that the hospital will physically remove someone who refuses to move, but that the patient will have to pay privately for the care at a cost of thousands of dollars a day. Medicare delegates the determination of whether a patient needs to be in the hospital to the hospital itself. The hospital has a financial incentive to move patients out as quickly as possible, because it is paid a fixed amount for each patient depending on the patient’s diagnosis, whether the patient stays three days or a full week. The more patients it can care for, the more payments it will receive.

(This has also meant that hospitals have been paid a second time if patients were discharged too soon or with inadequate follow-up care and returned to the hospital for additional care. One change enacted as part of the Affordable Care Act has been to make hospitals financially responsible for returning patients, giving them an incentive to be more careful about discharges and post-hospital care.)

Given the need to move patients out as soon as possible, hospitals often begin the discharge planning process soon after admission. They are also required to provide the patient with an “Important Message” explaining her Medicare rights. Discharge planners provide the patient and family members with guidance about how long the patient can stay in the hospital. But they often delay in taking the step that actually ends Medicare coverage – giving a written Notice of Non-Coverage to the patient or, if the patient is not competent, to a family member.

The Notice will state that Medicare coverage will end the following day.  For instance, if the Notice is delivered on a Tuesday, Medicare coverage will continue through Wednesday and the patient will become personally liable for care costs on Thursday.

The Notice also will provide information on how it may be appealed to a designated Quality Improvement Organization (QIO), which in Massachusetts is MassPro. This is an independent third party hired by Medicare to review hospital determinations that hospital care is no longer necessary. To implement an appeal, all the patient or family member needs to do is to call a telephone number provided on the Notice (800-252-5533 in Massachusetts) by noon the next business day. Medicare will continue to provide coverage while the QIO is conducting its review, which it does by reviewing the patient’s medical records.

If the QIO decides that the hospital’s determination is wrong, the patient will continue to receive Medicare coverage until the hospital issues a new discharge Notice. But this is rare.  In 2010, MassPro received 397 requests for review (a surprisingly low number given the thousands of Medicare patients receiving hospital care each year). Of this number, MassPro agreed with the hospitals in 231 cases (58%) and overturned the hospitals in just 17 cases (4%). The other 149 appeals (38%) were withdrawn for one reason or another.

Despite these discouraging numbers, asking for QIO review often makes sense because the process itself can often add a day or two of Medicare coverage. Patients are more likely to get two days rather than one day of additional coverage if they wait until the morning of the day after they receive the Notice to contact the QIO – but make sure you do it before noon. Also, the QIO review may take a bit longer over the weekend. So a patient who receives a notice on a Thursday requiring discharge by Friday often can extend Medicare coverage until noon on Monday by seeking QIO review on Friday morning.

Often the extra day or two in the hospital allows the the patient to build up additional strength or the family enough time to find an appropriate placement or arrange for care at home.

Massachusetts Protections

Strictly speaking, the discussion above involves Medicare coverage rather than protection from premature hospital discharge, but it serves the same purpose. Massachusetts has its own laws requiring hospitals to develop and communicate appropriate written discharge plans and provide them to Medicare-covered patients or their representatives at least 24 hours before discharge. Such plans must include the following information:

  1. The continuing care services the patient needs, including medical treatments, medical transportation, and homemaker services.
  2. Detailed information about the services that have been arranged.
  3. Names, addresses and phone numbers of the service providers.
  4. A schedule outlining when nursing, therapeutic or custodial care services will begin.
  5. Medications the patient will need and instructions on their use.
  6. Information about special diets and treatments.
  7. The schedule for any follow-up medical appointments.

The hospital will ask the patient or her representative to sign the plan.  Doing so only means that the patient received it, not that he agrees that the plan is appropriate.

If the plan is not adequate, then the patient or family members have the right to meet with the hospital’s discharge planner and the treating physician before noon of the next business day. If still not satisfied, they may contact the Massachusetts Department of Public Health Advocacy Office at (617) 753-8150.  But they should be aware that they need to ask for the Advocacy Office’s involvement by noon of the day after the patient receives the written plan.

The Advocacy Office will review the plan and the patient’s records and it must issue a ruling as to whether it approves or disapproves of the hospital’s discharge plan by noon of the day after which it receives the necessary records. The hospital may not charge the patient for services until noon on the following the Advocacy Office’s decision if it supports the hospital or until an alternative discharge plan has been issued if the original one is rejected. (M.G.L. c. 111, § 51D)

Conclusion

Medicare-covered hospital patients have significant protections from premature discharge or discharge without adequate plans in place to ensure their continued care and recovery, but few are aware of or take advantage of these rights. Instead, they and their families often feel that they must meet the institutional expectation that they move from the hospital whether they are ready or not.
While hospitals may be technically correct in most instances that an acute hospital level of care is no longer necessary, sometimes more time is needed to put post-hospitalization care in place or find an appropriate placement in a skilled nursing facility. The protections described above under both federal and Massachusetts law can “buy” the extra time needed to put the discharge plan in place (and perhaps save the hospitals money by avoiding readmissions).

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