Final word from government on EMTALA means trouble

Feds: Anti-dumping regs trump managed care rules

The final version of the special advisory bulletin on the anti-dumping rule may not offer anything new in terms of compliance advice, but it does make one thing crystal clear: The federal government does not care if managed care rules or any other financial concerns conflict with the anti-patient dumping rule.

No matter how much you find the two concerns conflicting in the emergency department, the Department of Health and Human Services’ Office of the Inspector General (OIG) and the Health Care Financing Administration (HCFA) say you must comply thoroughly with the federal rule. Period. End of story. No more debate.

"This guidance makes clear that despite the terms of any managed care agreements among plans, hospitals, doctors, and enrollees, federal law requires that a medical screening and stabilizing treatment be provided in an emergency," Inspector General June Gibbs Brown said when releasing the bulletin.

Under the 1986 patient anti-dumping law, also known as the Emergency Medical Treatment and Labor Act (EMTALA), all Medicare-participating hospitals with emergency rooms must provide all patients requesting emergency care with an appropriate medical screening to determine if the person has an emergency medical condition. If the person has an emergency medical condition, the hospital must provide stabilizing care within its capabilities. A transfer of an unstable patient to another facility is allowed only when an informed patient requests the transfer or a physician certifies that the medical benefits of the transfer outweigh the risks. Hospi tals may not delay providing medical screening or stabilizing care to inquire about a patient’s insurance or other payment arrangements.

The OIG and HCFA issued the special advisory bulletin after receiving inquiries from the medical community for clarification of the law and complaints that some managed care patients have been improperly denied emergency care. The bulletin was first published in draft form in the Dec. 7, 1998, Federal Register and had a public comment period. More than 150 comments were received. The final special advisory bulletin was published in the Nov. 10, 1999, Federal Register.

"We want to provide clear guidance to hospitals and physicians about their obligations to provide emergency care to managed care enrollees," Brown said. "While hospitals may feel caught between the obligations imposed under the law and the expectations of managed care plans, hospitals clearly must follow the law."

Dilemmas still will occur: No easy answers

The bulletin could be a source of frustration for health care risk managers, says Grena Porto, RN, ARM, DFASHRM, director of clinical risk management and loss prevention services at VHA Inc. in Berwyn, PA, and past president of the American Society for Healthcare Risk Management. Many risk managers were hoping the feds would come forth with some practical solutions to the dilemmas inherent in EMTALA, but Porto says there are not many in the final bulletin.

"This is more of what we already knew. The bottom line is that the rules are pretty clear," she says. "But they’re difficult to live with, and that’s why everyone keeps talking about it and debating it and trying to find another way to do it. But there truly isn’t another way."

HCFA acknowledges in the bulletin that hospitals face a number of dilemmas in trying to comply with EMTALA, says Lynn Tenerowicz, RN, JD, risk manager at Baystate Medical Center in Springfield, MA. But the clarifications offered by HCFA only emphasize that the EMTALA requirements supersede any financial concerns, and that’s not really news to anyone. (See p. 4 for some of the potential dilemmas.)

"Most of this information was provided in the draft bulletin last year, and I don’t see much here to really provide any assistance in complying," she says. "It’s good that they’ve responded to people’s concerns and comments, but in the end we’re just told to follow the rules and work out the details on our own."

The bulletin stresses that hospitals cannot allow patients to walk out of the emergency department before receiving treatment, but some risk managers may wonder just what they are supposed to do with those patients. After all, the patients are not prisoners; they can get up and leave whenever they want. The problem is that HCFA may see that as a violation of EMTALA if the patient left because the wait was too long.

That warning is worrisome for Mark Cohen, ARM, RPLU, a risk management consultant with Sutter Health in Sacramento, CA. While he says he understands HCFA’s concern that patients not be allowed to leave when they need care, Cohen says the realities of a hospital emergency department can thwart the staff’s best efforts.

"They don’t always tell us they’re going to voluntarily withdraw," he says. "HCFA wants you to keep track of patients and not just let people slip through the cracks as they wait in line. That’s fine, but in a lot of cases the staff has no control over whether they leave or not. When you’re using normal triage procedures, some people are going to have to wait, and some of them will leave."

HCFA provides guidelines for situations in which staff know the patient is about to leave. The provider should assure the patient that he or she will be treated and explain the risks of leaving. If possible, the provider should get the patient to sign a form acknowledging that treatment was offered and he or she is leaving anyway.

"If you can’t get that, HCFA wants you to make a note that you made the effort and recognize that the patient’s no longer there," Cohen says. "That’s good that they acknowledge that reality. The real problem they’re trying to avoid is patients just leaving and nobody even knows."

Tenerowicz also expresses frustration about that part of the bulletin. Long waits are a problem despite efforts to reduce them, she says. Now HCFA is putting more pressure on providers by saying long waits can be EMTALA violations. "There are factors beyond the control of any emergency department, and some waits are to be expected," she says. "And how can we be accountable for patients who walk out? HCFA wasn’t very realistic in acknowledging that patients will continue to walk out despite our best efforts."

Prudent layperson’ is still elusive

One issue that remains problematic is the "prudent layperson" standard, Cohen says. "The hospital emergency department has to see all comers, but a managed care plan can deny reimbursement for care if they don’t think the patient met the prudent layperson standard by seeking care somewhere else," he says. "It’s patently unfair to us because we have to take them all if we want to comply with EMTALA. The bulletin acknowledges this, but that’s all."

Another difficult situation involves "dual staffing" arrangements. Some managed care org anizations (MCOs) and hospitals enter into an arrangement in which the hospital permits the MCO to station its own physicians in the hospital’s emergency department, separate from the hospital’s emergency physician staff, to screen and treat MCO patients. That can mean there are two separate groups of physicians providing emergency care, sometimes with different approaches. Quest ions have been raised about how dual staffing affects compliance with the anti-dumping statute because the MCO patient is separated from the normal track in the emergency department.

Back in December 1998, the draft version of the bulletin called dual staffing questionable. The practice creates "difficult questions and we have not yet determined how to treat issues related to dual staffing under the patient anti-dumping act," HCFA said at that time. With the release of the final version, it seems HCFA still is uncomfortable with dual staffing.

"They don’t say it’s not allowed, but they say it could lead to some problems," Cohen says. "They’re still nervous about it, and that means risk managers should be, too."

One of Tenerowicz’s concerns involves the retrospective nature of any investigation regarding EMTALA. In hindsight, it may be much more clear that the patient required stabilization before providing financial information, she says. "It’s still frustrating to have this type of retrospective review that will say the health care provider delayed medical screening. In retrospect, once everyone knows what the problem is, it’s easier to argue that the patient needed stabilization, but that may not be apparent at the time."

She also expects difficulty with the bulletin’s emphasis on delaying any discussion of financial responsibility until after screening and stabilization. The bulletin stresses that, even when the patient asks about costs and possible personal financial responsibility, the provider should avoid such discussions until after screening. That may be well-intended, she says, but it is not realistic.

"We have seen cases where we told patients they could talk to a financial counselor after treatment, and they leave before treatment," she says. "People can be very concerned about being left with a bill, and if we just refuse to tell them anything right away, they will just avoid treatment because they’re scared of the cost."

That is unfortunate, Tenerowicz says, because the hospital often would be able to work out arrangements to defray the cost. The time spent waiting in the emergency department could be used to fill out the necessary paperwork, but the EMTALA bulletin says that is not allowed.

Violators of the anti-dumping law face significant penalties. Large hospitals and doctors who negligently violate any requirements of the law are subject to a civil money penalty of up to $50,000 for each offense. The penalty for hospitals with fewer than 100 beds is $25,000 per violation. Hospitals also can face termination from the Medicare program, and physicians found responsible for repeated or gross and flagrant violations can be excluded from participation in all federal health care programs. In recent years, the OIG and HCFA have stepped up enforcement of the patient anti-dumping law, devoting increased resources to the investigation and resolution of alleged violations. In fiscal year 1999, the OIG executed 60 settlements and received one default judgment for total recoveries of more than $1.7 million.

"HCFA is turning up the heat on this. They are empowered with more financial resources to seek compliance, they’re certainly better staffed to do so, and they’ve told us they’re going to do it," Cohen says. "If you’ve not been surveyed in response to an anti-dumping claim, you should shake yourself awake and conduct an audit now. The implications to your hospital are devastating."


o Grena Porto, VHA Inc., 200 Berwyn Park, Suite 202, Berwyn, PA 19312. Telephone: (610) 296-2558.

o Mark Cohen, Sutter Health, P.O. Box 160727, Sacramento, CA 99816-0727. Telephone: (916) 554-6552.

o Lynn Tenerowicz, Baystate Medical Center, 759 Chestnut St., Springfield, MA 01199. Telephone: (413) 794-0000. E-mail: