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The 193rd General Court of the Commonwealth of Massachusetts

Section 51D: Discrimination by acute hospitals against medicare beneficiaries; discharge planning

Section 51D. No acute hospital shall impose any discriminatory restrictions or conditions relating to admission, availability of services, treatment, transfer or discharge with respect to any patient because that patient is a medicare beneficiary. Prohibited practices include, but are not limited to, any such discrimination based on the diagnostically related group classification of such a beneficiary or any other criteria, including cost of treatment, severity of illness, and average length of stay, which are not equally applied to all patients with comparable medical needs seeking or receiving the services of the hospital. For medicare patients, admission and discharge shall be consistent with Public Laws 97–248, 98–21 and 09–369 and any other applicable federal statutes and regulations.

The department shall establish an advocacy office for the receipt of complaints of alleged violations of the provisions of this section. Said advocacy office shall investigate such alleged violations and if the advocacy office finds cause for crediting the allegations of a complaint, it will seek to resolve such complaint through negotiation. Hospitals shall cooperate with the said advocacy office in the investigation and resolution of an alleged violation. Such cooperation shall include, but not be limited to, the provisions of nonconfidential information reasonably related to the alleged violation, and the provision of patient records with the consent of the patient.

If the advocacy office cannot promptly negotiate a resolution to a complaint, the department may forward the complaint and any information obtained to the attorney general. The attorney general may bring a civil action for injunctive or other equitable relief to enforce the provisions of this section.

If the advocacy office cannot negotiate a resolution to the complaint and has cause to believe there exists a practice or pattern of violations of this section at any hospital, the department may also forward the complaints to the regional office of the health care financing administration for appropriate action.

Any information supplied by a hospital to the department which is provided to the attorney general shall not, unless otherwise ordered by a court for good cause shown, be disclosed to any person other than the patient, the authorized agent of the patient or representative of the attorney general, unless with the consent of the hospital providing the same.

The department shall have the authority to promulgate such regulation as may be necessary to implement the provisions of this section.

The attorney general may bring a civil action for injunctive or other equitable relief to enforce the provisions of this section.

In any action brought by the attorney general under this section, the court may also award a civil penalty of not more than five thousand dollars for each violation unless the peer review organization of said health care financing administration has formally commenced sanction proceedings against an institution as provided in 42 CFR 474.30.

Hospitals shall provide written notice of the rights established by this section to every medicare eligible person seeking services in the facility. In addition, notice of such rights shall be conspicuously posted in the facility.

Each acute care hospital is hereby required, in accordance with applicable federal and state regulations, to create for each medicare patient determined to need assistance with post-hospital care, a written comprehensive, individualized, discharge plan consistent with medical discharge orders and identified patient needs. Said plan shall be developed with the participation of appropriate health care professionals, the medicare patient and, as appropriate, the patient's family or representative. The patient's representative shall be selected in accordance with department regulations. The discharge plan shall be given to the patient or the patient's representative at least twenty-four hours prior to discharge, except where such a requirement is not feasible due to a short length of stay. If said plan is revised due to the medical needs of the patient or due to a space becoming available in an appropriate institutional setting, the twenty-four hour requirement shall not apply to the amended plan, except insofar as such timing relates to the filing of a request for review with the advocacy office as hereinafter provided.

The discharge plan shall include at least the following information:

(1) identification of the post-hospital services needed by the patient, including home health and homemaker services, and of the post-hospital social needs of the patient, as determined in accordance with procedures set forth by the department;

(2) the services that have been arranged for the patient;

(3) the names, addresses, and telephone numbers of service providers;

(4) the service schedule as requested by the hospital;

(5) medications prescribed and instructions for their use or verification that such information was provided separately;

(6) scheduled follow-up medical appointments or verification that such information was provided separately; and

(7) such other information as the department may require.

Each hospital shall have a clear, concise front page on the discharge plan, which front page shall be written in large print and understandable language. The front page shall contain at least the following:

(1) the name and telephone number of the hospital discharge planning coordinator to be contacted in the event the patient has any problems with post-hospital services after said patient leaves the hospital;

(2) a notice that, in the event the patient or the patient's representative does not agree with the discharge plan, the discharge planning coordinator and the patient's physician shall meet with the patient or the patient's representative in an effort to develop a plan that is acceptable to the patient;

(3) a notice, including the advocacy office telephone number, that, if an acceptable resolution is not reached as a result of the meeting provided for in clause (2), the patient or the patient's representative may file a request for review of the discharge plan with the advocacy office, as hereinafter provided;

(4) a notice that signing the discharge plan does not necessarily indicate approval of the plan and does not preclude the right to request a meeting or a review pursuant to clauses (2) and (3); and

(5) a signature line for the patient or the patient's representative acknowledging participation in the development of the discharge plan and receipt of a copy of said plan.

If the patient or the patient's representative does not sign the plan, the reason for not signing shall be noted on the plan. A signed or noted copy of the plan shall be retained in the patient's medical record. The patient's medical record shall also document that said plan was communicated orally to the patient or to the patient's representative.

No hospital may discharge a medicare patient without the patient or patient's representative having received, read and signed the front page of the discharge plan or upon decision of the advocacy office.

If a discharge plan cannot be agreed upon as a result of the meeting of the patient or the patient's representative, the discharge planning coordinator and the patient's physician, as provided for in this section, the patient or the patient's representative shall have the right to file a request for a review of said discharge plan with the department's advocacy office. The hospital also shall have the right to file a request for a review of said discharge. A request for review shall be made with the advocacy office not later than noon of the first working day after the date the patient or the patient's representative receives the written discharge plan. The hospital shall deliver to the advocacy office the records required to review the discharge plan by the close of such working day. The advocacy office shall either approve or disapprove the discharge plan within one working day of receiving the request for review and the hospital records. Said discharge plan shall not be approved unless the requirements set forth herein have been satisfied.

If the advocacy office approves the discharge plan, discharge shall occur pursuant to the approved plan by noon of the day following notification of the advocacy office's decision, unless hospital and patient agree otherwise. If the advocacy office does not approve the discharge plan, said office shall state the problems needing correction, and the hospital shall not charge the medicare patient for inpatient hospital services until an alternative plan is developed to resolve the problems set forth by the advocacy office. The requirements of this section relating to the initial discharge also shall apply to the alternative plan.

If a timely request for review has been filed with the advocacy office, the hospital shall not charge the medicare patient for inpatient hospital services furnished before noon of the day after said patient is notified by telephone or otherwise of the advocacy office's decision. If notice is made by telephone, the notice shall be made to both parties to the review and shall be followed by written notice as soon as possible.

No patient shall be discharged or transferred without a physician's order, except where such patient leaves against medical advice. No patient shall be discharged until the hospital has made all appropriate contacts to initiate the provisions for aftercare services.

A medicare patient treated at the emergency room of an acute care hospital shall be provided with a discharge plan in accordance with the requirements of this section, with the exception of the right to request a review of such discharge plan by the advocacy office prior to such discharge.

Nothing in this section shall be construed to prevent a hospital from implementing a decision relating to patient care which is in the best interest of a patient and in conformity with good medical and hospital practice.

Nothing in this section shall be construed as limiting any other rights or remedies provided by law to medicare patients. Nothing in this section shall be construed to limit the applicability of section sixty B of chapter two hundred and thirty-one. Nothing in this section shall give rise to or limit an otherwise available cause of action in negligence or medical malpractice.

The department shall conduct an evaluation as to whether the introduction of the medicare prospective payment system has affected the delivery of quality care to medicare beneficiaries including the appropriateness of admissions and discharges to acute care hospitals. Said department shall submit an interim report of its findings to the clerk of the house of representatives to the general court no later than March first, nineteen hundred and eighty-seven, and a final report not later than March first, nineteen hundred and eighty-eight, including any applicable recommendations for legislation arrived after consultation with the Massachusetts Hospital Association, the Massachusetts Medical Society, and others. Acute hospitals are hereby required to submit to the department relevant data reasonably necessary to conduct this evaluation. The department shall not seek information directly from hospitals when such information is available from other sources. The department shall protect the confidentiality of patient information provided by the hospitals. No data, findings, conclusions or reports developed by the department during or as a result of such evaluation from hospital/practitioner data shall be released without thirty days prior notice to such hospital. Comments by the hospital shall accompany the release of the data, findings, conclusions or reports.