The law: Hospitals can’t delay emergency care

Take these steps to get correct payer information

Concerned that patients may not be receiving proper emergency medical care because of managed care pre-authorization requirements, the federal government will begin enforcing a "patient-dumping" prohibition to ensure immediate care, whether insurance pays or not.

As the Department of Health and Human Services Inspector General June Gibbs Brown said in a press statement, "Despite the terms of any managed care agreements, federal law requires that stabilizing medical treatment be provided in an emergency." The statute is section 1867 of the Social Security Act and also known as being part of the Emergency Medical Treatment and Active Labor Act and the Consolidated Omnibus Budget Reconciliation Act.

Sanctions imposed for violations of the anti-dumping statute include the termination of the hospital’s provider agreement, and the imposition of civil money penalties — up to $50,000 per incident — against both the hospital and the physician responsible for examination, treatment, or transfer of an individual. In addition, the anti-dumping statute provides for the exclusion of the physician if the violation is gross, flagrant, or repeated.

American Hospital Association spokesman Rick Wade applauded the expansion of the law to the press, but he emphasized that "it’s not going to solve the problem of some plans deciding that they’ll use pre-authorization rules as a way not to pay hospitals."

"Many of the health maintenance organizations appear to be taking the tactic of automatic denials on payments," agrees Susan M. Reese, RN, MBA, president of Palm Harbor, FL-based InfoScript. InfoScript provides management resources and consulting services related to emergency departments. "The general feeling is that [the organizations] have a hope that the hospitals will just accept the denial and move on."

Under statutory amendments enacted in the Balanced Budget Act of 1997, Medicare and Medicaid managed care plans are prohibited from requiring prior authorization for emergency services, including those that "are needed to evaluate or stabilize an emergency medical condition."1

Moreover, Medicare and Medicaid managed care plans are required to pay for emergency services provided to their enrollees, the statute says. The obligation to pay for emergency services is based on a "prudent layperson" standard, which means that the need for emergency services should be determined from a reasonable patient’s perspective at the time of presentation of the symptoms.

Karen Ignagni, president of the American Association of Health Plans in Washington, DC, told reporters that the group’s members already use that standard, but they also want to make sure patients are not seeking primary care in an emergency setting.

Obligated to emergency patients

Hospitals, however, don’t have the luxury of trying to decide if the need for emergency care would fall under the prudent layperson standard. Under the statute, the obligations of Medicare- participating hospitals to individuals seeking emergency services include the following:

- A hospital must provide to any person who seeks emergency services an appropriate medical screening examination sufficient to determine whether he or she has an emergency medical condition, as defined by the statute. When appropriate, ancillary services routinely available at the hospital must be provided as part of the medical screening examination.

- If the person is determined to have an emergency medical condition, the hospital is required to stabilize the medical condition of the individual, within the staff and facilities available at the hospital, prior to discharge or transfer.

- If the patient’s medical condition cannot be stabilized before a transfer requested by the patient (or determined to be in the patient’s best interest by the responsible medical personnel), the hospital is required to follow very specific statutory requirements designed to facilitate a safe transfer to another facility.

- A hospital may not delay the provision of an appropriate medical screening examination or further medical examination and stabilizing medical treatment in order to inquire about the individual’s method of payment or insurance status.

The key to the statute is to not delay care, Reese advises. "[The regulations] do not tell hospitals they can’t get the information. They tell hospitals that they can’t let this information interrupt the flow of care. You can’t stop providing care for patients to find out about their insurance coverage and then proceed once you know their financial status."

The Office of the Inspector General in Washington, DC, and the Health Care Financing Administration (HCFA) in Baltimore suggest the following practices to minimize the likelihood that a hospital will violate the statute:

- Hospitals may not request a health plan to require prior authorization before the patient has received a medical screening examination to determine the presence or absence of an emergency medical condition or before the patient’s emergency medical condition is stabilized.

- Hospitals should not ask patients to complete financial responsibility or advanced beneficiary notification forms prior to performing an appropriate medical screening examination.

- Qualified medical personnel must provide an appropriate medical screening examination to all individuals seeking emergency services.

- A patient inquiry about his or her obligation to pay for emergency services should be answered by someone who has been well-trained to provide information regarding potential financial liability.

Hospital staff should encourage any patient who believes that he or she may have an emergency medical condition to remain for the medical screening examination and to defer further discussion of financial responsibility issues until after the medical screening has been performed.

- Hospitals should follow the series of steps listed in the statute in the case of an individual choosing to withdraw his or her request for examination or treatment at the presenting hospital. These steps include making an effort to secure a written informed consent to refuse examination and treatment.

Ensuring that patients receive proper emergency care, however, shouldn’t stand in the way of obtaining payment information.

"Hospitals are operating in such fear of HCFA’s regulations that they are reluctant to pursue getting information upfront from a patient," Reese says. "The hospitals fear being accused of intimidating the patient in such a fashion that the patient leaves and does not pursue requested services."

Here are some suggestions to increase the amount of information hospitals receive from patients in the emergency departments:

o Place nurse triage before registration.

In some cases, the patient is then routed back to registration after care is rendered (when the patient is treated and released) to complete the data capture process, writes Allan P. DeKaye, MBA, FHFMA, president and chief executive officer of DeKaye Consulting in Oceanside, NY, through his company’s Patient Accounts Management list server. Many emergency departments also fax over notifications, or have patients or staff call the managed care company to ensure that this requirement is being met, he adds.

o Offer bedside registration.

With bedside registration, clinical professionals can continue providing uninterrupted clinical care while registration personnel can pursue getting the demographic and financial information, Reese says.

o Work on customer relations.

Registration departments can do a better job in terms of customer relations so that the process is not adversarial, she says. "Some patients see it that way and think they are being challenged."

o Have a more knowledgeable registration staff.

"That’s a tall order with all of the variety of financial plans available for patients," Reese admits. "Oftentimes, though, one of the problems in obtaining the correct information is that the registrar does not know the types of plans and what information might be required by them."

o Put financial counselors into emergency departments.

"Oftentimes, patients who come into the emergency department don’t understand their plans," she says. "Or they don’t have a plan but they qualify for other aid but don’t know it because no one has ever pursued getting it for them. Financial counselors could assist those individuals to evaluate what their financial package is and help find payment sources for them."


1. 63 Fed Reg 67,486 (Dec. 7, 1998).