Outpatient PPS fuels fears of EMTALA crackdown
Outpatient PPS fuels fears of EMTALA crackdown
Court deals further blow to FCA enforcement
Some compliance officers see outpatient prospective payment system as window to improve compliance
With only a month remaining in the current fiscal year, the Department of Health and Human Services’ Office of Inspector General (OIG) reports a modest decline in the total number of settlements and judgements for violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), otherwise known as the patient anti-dumping law. But experts warn that those numbers may offer compliance officers false assurance regarding the long-term threat posed by EMTALA.
In all, the OIG executed 47 settlements and judgements totaling $1.17 million for violations of EMTALA. That’s down from 61 settlements worth $1.72 million in FY ’99 and 53 settlements and judgements worth $1.8 million in FY ’98. But those numbers tell only part of the story, says John Steiner, director of corporate compliance at the Cleveland Clinic Foundation.
"What you don’t know is how many times a file is created, but no action is taken," he asserts. "There is a fair amount of activity in following up on complaints." In addition, Steiner points out that prosecutors in some regions are much more active than others.
The latest fears regarding EMTALA revolve around the hospital outpatient prospective payment system (PPS) regulation, which creates burdensome obligations on hospital outpatient departments and hospital-based entities. But Susan Lapenta of the Pittsburgh-based Horty Springer says that threat has existed for some time. "We have been warning people about that for years," she explains. "It is just that some people have not been following the interpretive guidelines, which now have the power of regulation."
Steiner argues that the new provider-based regulation actually offers compliance officers an opportunity to limit their risk in this area because it presents a clear reason to revisit the EMTALA compliance issue. Steiner says the bottom line is that whenever related obligations such as EMTALA are attached to favorable reimbursement, providers are tempting fate if they do not perform some due diligence.
At Cleveland Clinic, Steiner recently assembled managers from various locations to review what constitutes a hospital, a clinic, a regional practice and an ambulatory surgical center under EMTALA. "We want to make sure we have that inventory for this system and spend some time talking about those key terms that drive the EMTALA statute," he explains. "Establishing this type of ad hoc committee provides a focal point to re-establish the organizations interpretation of these key principles."
Steiner says the OIG’s voluntary compliance for physicians and small group practices, which was released in draft form last spring, also highlights EMTALA.
The expanded threat flowing from the outpatient PPS regulation is not the only area that hospitals should be aware of, however. Health care attorney Kim Davenport-Ware, who specializes in that area, says things are heating up in the inpatient setting, as well. At issue are cases in which someone is stabilized as an inpatient after receiving emergency services and later transferred. The question is whether EMTALA applies to that transfer.
According to Davenport-Ware, there is a split among the Circuit Courts of Appeal in interpreting this issue. In the Ninth Circuit, the ruling is that EMTALA requirements regarding stabilization and transfer apply only to patients who have been diagnosed with an emergency medical condition after coming into the emergency department.
By contrast, Davenport-Ware points to the Sixth Circuit’s decision in Roberts v. Galen that eventually went to the U.S. Supreme Court. In that case, the Court held that an improper motive is not a necessary element for an EMTALA violation to apply, but the Court did not decide the inpatient question.
"That was a very big disappointment to all of us," says Davenport-Ware. Even more controversial are cases where a patient is admitted outside the emergency department and is an inpatient for a period of time before being transferred. She says the government has taken the position that it does apply to anybody who is an inpatient. "That is a literal interpretation of a part of the statute."
"That is a little bit new," agrees Lapenta. For example, she says that hospitals with specialized capabilities have an obligation under the law to accept transfers. "There are some examples in the regulations. But now we are seeing courts interpreting that language a little broader than I might have expected."
(Editor’s note: American Health Consultants, publisher of Compliance Hotline, is offering a teleconference entitled "The Expanding Scope of EMTALA: Why every hospital must learn the rules and comply." Presented by EMTALA experts Charlotte Yeh, MD, FACEP, and Grena Porto, RN, ARM, DFASHRM, the teleconference will be held Nov. 15, from 2:30 to 3:30 pm, EST. The cost is $179 per location for subscribers and $199 per location for nonsubscribers. To register, call (800) 688-2421.)
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