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A man out shopping with his family began experiencing chest pain, and went straight to the nearest ED. At registration, the man asked if the hospital participated in his health plan. The answer was no, but the registrar urged him to stay for evaluation anyway.
The man left the ED to go to a hospital that took his insurance, just 10 minutes away. On the way, the man suffered a heart attack and died. The family sued the hospital for medical malpractice and violation of the Emergency Medical Treatment and Labor Act (EMTALA).
“The registrar’s good training and routine practice actually helped to protect the hospital,” says Mary C. Malone, JD, a partner at Hancock Daniel in Richmond, VA. During depositions, the man’s adult son testified that the registrar had stated two things:
“Despite these warnings, the man and his family had decided to leave, but only after having been informed of his rights to treatment under EMTALA,” Malone notes.
The malpractice lawsuit was settled out of court, but the plaintiff attorney dropped the EMTALA claim. “The defense attorney believed it was because of the son’s deposition testimony that the registrar informed them of EMTALA rights, and discouraged them from leaving,” Malone says.
Many people, understandably, want to know if their ED visit is going to be covered by their health insurance. The registrar’s remarks, however well-intentioned, can be construed as an EMTALA violation. “Registrars can get into trouble if they are not trained on how to respond to payment questions,” Malone warns.
If the registrar tells a patient she should go to a nearby urgent care center instead of the ED specifically because her coverage is out of network, that is a possible EMTALA violation. To a CMS investigator, it might look like the patient was discouraged from staying for insurance reasons.
Malone says registrars need to clearly communicate that the patient has a right to a medical screening examination (and, if necessary, stabilizing treatment) regardless of ability to pay. “Access to emergency services, without regard to ability to pay for those services, is at the very core of the EMTALA law,” Malone says.
CMS also will not look kindly on copay collections that interfere with patient care in any way. “Any kind of practice where screening or treatment is delayed or not provided, in connection with the hospital seeking financial information regarding the patient’s ability to pay,” can mean big trouble for hospitals, Malone says.
If the patient decides to leave the ED, worried about a huge bill, and has any kind of bad outcome, an EMTALA complaint is possible. A signed against medical advice (AMA) form is one way of demonstrating that the person was aware of their rights under EMTALA. Of course, not all patients will agree to sign such forms. But if the patient has at least provided a name, the form still can be completed, Malone says. The registrar would indicate on the signature line that the patient was provided the EMTALA notice but refused to sign the form. “Such forms should be maintained in case they need to be shown during a survey,” Malone adds.
Timothy C. Gutwald, JD, a healthcare attorney in the Grand Rapids, MI, office of Miller Johnson, says these are the two riskiest practices for ED registrars:
Whenever an ED patient asks about financial liability related to emergency medical treatment, registrars should direct them to an appropriate person. Whoever answers this very important question, says Gutwald, “should make it clear to the patient that, regardless of the patient’s ability to pay, the hospital will provide a medical screening examination and stabilizing treatment, if necessary.”
Too many registrars have a dangerous misconception. They believe the moment a medical screening exam is complete that it is totally fine to demand payment. This is not necessarily the case.
“ED registrars should never be collecting a copay or deductible before the patient has had a medical screening examination and is stabilized,” says Sue Dill Calloway, RN, MSN, JD, a Dublin-OH based nurse attorney and president of Patient Safety and Healthcare Consulting and Education.
The Office of Inspector General has fined many hospitals for this. “The penalties have significantly increased, so this should be on the radar screen of all hospitals,” Dill Calloway offers. “This is a hot area where they are going to throw the book at you.” CMS has made it clear that if registrars ask for payment or insurance information before the medical screening examination and stabilizing treatment are complete, hospitals may face the maximum fines.
What if a medical screening examination has been completed already and shows the patient does not have an emergency medical condition necessitating stabilizing treatment? Some patients will wonder if it is worth staying and what they are going to owe. “It is appropriate to have a good patient financial counselor available to address the patient’s questions and concerns,” Gutwald says.
Gutwald cautions that CMS has been “very clear” that hospitals and EDs need to be careful when discussing financial issues with patients before they receive stabilizing treatment. “Patients leaving before receiving a medical screening examination and stabilizing treatment is a big concern for the government,” Gutwald says.
Hospitals and EDs should try to defer these conversations until after the medical screening examination and any necessary stabilizing treatment have been performed. “If patients repeatedly leave prior to a medical screening examination or stabilizing treatment, hospitals and EDs should re-evaluate how they are handling these questions and consider retraining staff,” Gutwald adds.
Gutwald says CMS investigators may view these practices as discouraging people from seeking necessary treatment in the ED:
“CMS has advised that best practice is to not give financial responsibility forms, notices, or obtain patient agreements to pay services until after stabilization treatment has begun,” Gutwald explains. If registrars do not realize stabilization treatment is needed, they may ask for a high-dollar amount before it is completed. This is “very problematic,” Gutwald adds.
As long as patients are provided a medical screening examination and any necessary stabilizing treatment without a payment-related delay, asking for high-dollar amounts probably will not violate EMTALA. However, it is a problem if a hospital’s policy or practice results in patients leaving during the course of treatment or deters patients from seeking treatment. “CMS may conclude the policies are not reasonable and violate EMTALA,” Gutwald explains.
Recently, Dill Calloway visited an ED with suspected pneumonia. Right after triage, she was asked for a $500 copay. The registrar seemed to have no understanding of EMTALA, even after being warned copay collection prior to a completed medical screening examination was a violation of federal law. “When I got better, I talked to the hospital risk manager,” Dill Calloway says. “The CFOs can get hospitals in trouble with EMTALA.”
The incident spotlights the need to educate ED registrars on what they can and cannot do regarding collection. “Now that fines have more than doubled, people really need to pay attention to this,” Dill Calloway stresses. “The penalties are huge.”
It is a difficult balancing act for revenue cycle staff. “Hospitals need to be paid for the services they provide,” Malone acknowledges. Once patients leave the ED and go home, it is well-known that the odds of the hospital receiving any payment at all plummet. However, says Malone, “the consequences of a payment-related EMTALA violation are much higher than not getting paid for every ED visit.”