EMTALA warning means risk is greater for any emergency delays

Feds make it clear they will adhere to strict interpretation for payment

The federal law requiring emergency treatment for anyone who shows up in your emergency room has long represented a significant liability and regulatory risk for hospitals, but a recent warning from the federal government ups the ante even more. The feds are clamping down on any delay in treatment caused by efforts to seek third-party approval and payment, and that means you have to make sure the violation doesn’t happen on your watch.

Since it first was enacted in 1986, the Emergency Medical Treatment and Labor Act (EMTALA) has required hospitals to provide "an appropriate medical screening examination" and treatment "as may be required to stabilize the medical condition" before discharging, transferring, or referring the patient to another provider. Gener ally known as the "anti-dumping law," EMTALA is intended to prevent hospitals from turning away patients who cannot pay if they are genuinely in need of emergency care. With its most recent statements, the government is letting providers know administrative delays while checking a patient’s insurance can be considered a violation of EMTALA.

Inspector General June Gibbs Brown of the U.S. Department of Health and Human Services (HHS) issued a special advisory bulletin on EMTALA, explaining that the Clinton administration will be taking a hard line on the issue. She stresses that a managed care organization (MCO) contract cannot "excuse a hospital from providing needed emergency medical screening and stabilizing care." Contractual requirements for pre-authorization cannot get in the way of EMTALA requirements, she says.

That has always been the case, but the rise in managed care in recent years has led to more complaints against hospitals, according to the HHS, which enforces EMTALA along with the Justice Department. They have obtained settlements in 67 dumping cases in the past two years, resulting in $2.3 million in penalties. That is more than 10 times the amount of penalties collected in the previous 10 years combined, partly because Congress allocated more money to EMTALA enforcement in 1996.

"Investigations of patient dumping allegations have persuaded us that managed care patients may more likely be victims of dumping than other patients," Brown says.

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Brown reports receiving 200 complaints a year regarding delays in emergency treatment due to attempts at getting MCO approval. EMTALA violations carry a penalty of up to $50,000, and flagrant or repeat violations can result in expulsion from all federal health care programs.

The American College of Emergency Physicians supported the strong position on EMTALA with a statement saying it could help avoid some of the dilemmas doctors find themselves in. MCOs often want providers to contact them before providing any screening or stabilization, but the government’s statement makes it clear that such delays are not acceptable, says Charlotte Yeh, MD, chairwoman of the college’s government affairs committee.

Warning could be used in your favor

For risk managers, this is one more way government regulators have set their sights on you. The government warning means that you must take steps to ensure patient admissions and billing processes do not get in the way of emergency treatment, even unintentionally, says Mark Cohen, ARM, RPLU, a risk management consultant with Sutter Health in Sacramento, CA. "Now more than ever, the message is that you must comply with this law completely and don’t try to avoid it in any way," he says. "If we haven’t already learned the lesson, we’re going to get our knuckles rapped. We’re going on 13 years since this law was written, so what’s the mystery?"

Cohen says the federal crackdown was prompted by hospitals and MCOs trying to fudge the rules in emergency departments, a practice that Cohen says most risk managers would admit is a reality in their hospitals. That fudging is not always the choice of the hospital, he notes. Rather, it often is a response to the demands of the MCO that the hospital play by its rules in seeking preauthorization, even if the MCO rules conflict with EMTALA. A good result of the government crackdown could be that hospitals have more support for saying no to MCOs, Cohen says.

That point is supported by Lynn Tenerowicz, RN, JD, risk manager at Baystate Medical Center in Springfield, MA. If the MCO tries to enforce a contract requiring some sort of preauthorization for emergency care, the recent statements from the HHS remove all doubt that such rules are illegal, she says.

"I suspect some organizations where managed care contracts have required prior authorization will have to renegotiate those contracts and revise practices to ensure compliance," Tenerowicz says. "Some financial people who negotiate with managed care organizations would always hear that the requirements were not clearly stated before. I think there was some support for that argument previously, but now that’s not the case. The requirement is very clear now."

So what does this mean in terms of how your emergency department actually operates on a daily basis? Cohen and Tenerowicz say the EMTALA clarification means the treatment process and the payment authorization process must proceed on completely separate tracks. They may proceed concurrently, but they must be identified clearly as separate tasks and not interdependent ones. (See pp. Xx-xx for the government’s recommendations and other tips on how to comply with EMTALA.)

"Our emergency department will have the patient triaged by a nurse, and a determination is made as to where the patient is in the order of treatment. All the treatment process flows from that triage," Tenerowicz explains. "The staff also may begin the registration process in the interim, but they won’t say to the patient that You can’t have the screening exam until we check with the insurer.’ You can have registration and treatment going on at the same time, but they’re not contingent on each other."

(The feds say they are not sure about the legality of "dual staffing" arrangements in which an MCO’s own physician works in the emergency department to screen an MCO’s patients. For more on that issue, see the related story)

Compliance with EMTALA inevitably will result in some patients abusing the emergency department for non-emergency care that will not be reimbursed. Cohen and Tenerowicz both are unhappy about that result, but Cohen says there is no need to fret over the unfairness of EMTALA. The actual cost of unreimbursed exams is probably lower than most financial officers would estimate, Cohen says, and besides, there apparently is no wiggle room left in the law.

"EMTALA is patently unfair to hospitals because you have to do the initial exam, and you won’t get paid for some of them," he says. "Get over the fact that it’s unfair and comply with the law. You have to live with it."