EXECUTIVE SUMMARY

Some EMTALA investigations are triggered because a registrar, while trying to reduce delays, collects money from a patient who is waiting for an exam, or because patients leave after hearing the hospital doesn’t accept their insurance. To avoid problems, registrars can:

• obtain registration information only after the medical screening exam is completed;
• use appropriate scripting to inform patients the law provides for emergency medical care regardless of ability to pay;
• inform patients that payment will be addressed only after the patient has been seen and/or treated.

Some violations of the Emergency Medical Treatment and Labor Act (EMTALA) are pretty blatant: A registrar demands payment before the required medical screening examination (MSE), or an uninsured patient is told to go to another ED before receiving an MSE. However, other investigations occur because of a well-meaning registrar.

“The biggest good-faith violation I see cited is what I call the ‘efficient employee’ violation,” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney.

This usually involves a registrar who’s simply trying to save the patient some time. The registrar knows the registration process is not supposed to delay the patient from receiving the MSE. “This employee has a patient waiting to see the triage nurse or the physician, and says to themselves, ‘This person is just waiting anyway, so I can save time by going out and getting all the information now, and it won’t delay anything,’” Frew explains.

The problem is that the Centers for Medicare & Medicaid Services (CMS) has cited hospitals for obtaining financial registration prior to MSE. This is because, in CMS’ view, it tends to delay the MSE in general, and tends to cause people to leave over what they perceive as financial pressure.

“This same employee is likely to ask for financial information from the family under similar circumstances,” Frew adds. “But CMS views financial questions to the family as financial questions to the patient.”

Patient Died En Route

One hospital faced an EMTALA lawsuit because of a conversation between a registrar and a patient about insurance coverage. “The patient experienced chest pain while shopping with his spouse and adult children,” reports Mary C. Malone, JD, an attorney in the Richmond, VA office of Hancock, Daniel, Johnson & Nagle. The family persuaded the patient to go to the ED to be examined.

At registration, the patient asked whether the hospital accepted his insurance coverage. The registrar informed the man that, in fact, the hospital did not participate in his plan.

“Despite being dissuaded otherwise, the patient left with his family to go to another hospital a few miles down the road that participated in his insurance plan,” Malone says. “The patient arrested en route and died.” The family filed a civil EMTALA suit against the hospital.

“During deposition of one of the adult children, that adult child indicated that when his father said he was leaving the hospital to go to another hospital, the registrar said he should not go,” Malone recalls. The son also testified that the registrar informed his father that the law provided him access to this emergency treatment without regard to payment. “This statement was used to have the case resolved,” Malone notes.

Malone says the case underscores the need to properly educate registrars on EMTALA requirements. “Provide appropriate scripting to address questions about payment that may arise during the registration process, and before screening and treatment,” she advises.

Upfront Payment Problematic

Registration staff also can run into trouble by asking patients for copays or deductibles up front. “It’s a twofold problem under EMTALA,” Malone says. “First, the whole point of EMTALA is to ensure access to emergency services without regard to the ability of the patient to pay for those services.”

Requiring upfront payment could be perceived as blocking access based on payment issues. A second problem is that collecting payment up front could create an unnecessary delay in getting evaluation and treatment. This is prohibited by law.

“The same thing goes for waiting for preauthorizations from insurance companies before treating the patient,” Malone adds. The bottom line: Registrars must stay away from practices that could cause unnecessary delay in screening or treatment, or that discourage patient access based on payment issues.

Although EMTALA doesn’t expressly prohibit collecting payment prior to someone seeing the patient, Malone says, “the far better practice is to advise the patient that payment issues will be addressed once the patient has been seen and/or treated.”

SOURCES

• Stephen A. Frew, JD, Vice President, Risk Consulting, Johnson Insurance Services, Loves Park, IL. Phone: (608) 658-5035. Fax: (815) 654-2162. Email: sfrew@medlaw.com.
• Mary C. Malone, JD, Hancock, Daniel, Johnson & Nagle, Richmond, VA. Phone: (866) 967-9604. Email: mmalone@hdjn.com.