Most ED registrars probably know better than to ask for payment before a medical screening examination (MSE) is completed to avoid an EMTALA violation. However, some patients bring up the topic of money themselves. Some ask, “How much is this visit going to cost me?” or “Does my insurance cover this?”

If the answer is not too reassuring, that patient might leave to avoid a huge bill. That could be construed as an EMTALA violation. “Because of the possible deterrent effect, a helpful answer to a patient asking about insurance could be, ‘You have a right to a medical screening examination and certain appropriate treatment, regardless of ability to pay,’” says Lee Little, JD, an attorney at Augusta, GA-based Hamil Little.

It is not an automatic EMTALA violation for registrars to ask about insurance after triage but before the MSE. However, it is a potential violation if the MSE is delayed because of it, or the patient is deterred from staying in the ED because of it.

“Sound policies, staff training, scripting, and tight practices are needed to ensure compliance,” Little offers. “Some conservative hospital risk managers err on the side of caution.”

They simply advise registrars not to ask for any financial information or engage in any such discussions until after the MSE is over. This includes not even asking for an insurance card or taking a $20 copay.

To avoid problems with EMTALA, Little says hospitals “should have well-trained staff, using carefully drafted scripts, for patients who insist on discussing insurance coverage before the MSE.”

In one case, a man experienced chest pains while shopping with his family and presented for screening at an ED. The registrar asked for his insurance card before the MSE and saw the plan was out of network with the hospital. The registrar informed the patient, who left the hospital without undergoing an MSE. The man later died.

“The family alleged that the hospital registrar deterred the man from receiving an MSE by telling him [the hospital] was out of [his insurance] network,” Little says.

Training can help ED registrars respond to tricky patient questions on insurance coverage or cost. Douglas B. Swill, JD, a partner in the Health Care Group at Faegre Drinker Biddle & Reath, says registrars must be clear on these specific points:

  • Do not collect money before a MSE or stabilizing treatment. “The whole point of EMTALA is to provide MSE and stabilizing treatment with or without one’s ability to pay,” Swill says.
  • When the registrar does ask for the copay, “care must continue, regardless of whether a patient can or cannot make such payment,” Swill cautions.
  • Registrars also must be careful if seeking to collect from family members who accompany the patient to the ED. “Again, such activities cannot delay the MSE or treatment,” Swill notes.
  • ED registrars should not discourage the patient from leaving the hospital because they have no insurance, poor insurance, or out-of-network coverage.

“It is important to contemporaneously support that the hospital did not discourage the person from staying for a MSE and/or stabilizing treatment because of a patient financial issue,” Swill says.

If a patient says he or she is leaving because of the hospital bill, that is a dangerous situation medically and legally. “If the person raises the issue of cost, staff should emphasize that the hospital offers financial assistance,” Swill says.

Registrars need to document any efforts made to address the patient’s concerns. For instance, a registrar might make a note in the chart stating, “Gave the patient printed information about financial assistance” or “Explained the hospital’s obligation to provide an MSE and medical stabilization care regardless of the ability to pay.”

“In my experience, hospital staff are trained to do the right thing, and usually do,” Swill says.

Chart notes showing what registrars did to encourage a patient to stay in the ED can make all the difference in defending the hospital if there is an investigation or lawsuit weeks, months, or years later.

Invariably, surveyors are going to look at the medical record to find out what happened and what could have gone wrong. “Generally, the more information about the specific situation, the better,” Swill adds.