HCFA Considers EMTALA Task Force Recommendations

Suggested changes to the State Operations Manual include clarifying the definition of stability for discharge vs. stability for transfer, allowance of 90-day termination track for administrative violations, and inclusion of a definition of a medical screening exam

The recent spate of HCFA citations at a number of Kaiser Permanente hospitals in California serves as testament to the conflict that remains between managed care practices and the federal legislation designed to protect the public access to basic medical services.

According to a July 30 report in The San Francisco Chronicle, just weeks after correcting problems at its Richmond and Oakland hospitals, Kaiser, the nation’s largest HMO, was notified by federal investigators that it was in danger of losing its Medicare and Medi-Cal participation at its hospitals in Contra Costa County.

The problems centered mainly on "administrative oversight of transferred patients, nursing care, emergency care, and quality assurance," according to the report.

Despite the fact that COBRA/EMTALA legislation has been on the books for more than a decade, confusion about what the law mandates and how it will be enforced exists at the largest urban hospitals as well as smaller community facilities just beginning to deal with managed care.

"I think there is a real need to educate hospitals, and particularly physicians, about COBRA," states Larry Bedard, MD, FACEP, immediate past president of the American College of Emergency Physicians (ACEP) and a member of a recent task force set up by the Health Care Financing Administration (HCFA) and charged with recommending changes to its COBRA enforcement policy. "A lot of doctors either don’t know the law exists or don’t understand it."

And, continues Bedard, differences in the way the law has been interpreted and enforced by federal regulators have made the regulations problematic even for providers well-versed in such requirements.

"It was haphazardly, randomly, and inconsistently enforced," he says. "Sometimes, I believe, inappropriately and to the point of being bizarre with some of the interpretations."

HCFA is now considering changes recommended by the task force that would eliminate some of the problems hospitals and providers have complying with COBRA by, among other things, establishing a definition of a medical screening exam (MSE), a standard definition for stabilization, and more uniform policies for notification of violations and termination of (Medicare/Medicaid) participation procedures.

In October or November, the administration should begin incorporating changes into its State Operations Manual (SOM), the guide used by state health departments in enforcing federal regulations, says a HCFA official working with the task force and speaking on condition of anonymity. Shortly after the changes are made, members of the task force will also help train HCFA surveyors on the implementation of the new guidelines.

What is the EMTALA task force?

Originally titled the Anti-Dumping Work Group, the task force was formed in June 1996 after representatives from the American Hospital Association approached HCFA with concerns about the enforcement of COBRA, says the official.

Organized through what is now HCFA’s Center for Medicaid and State Operations, the task force included representatives from the American Hospital Association, American Medical Association, American College of Emergency Physicians, American Association of Health Plans, Public Citizen, and the American Association of Retired Persons, among others.

The group was then divided into three subgroups: one dealing with the interface between COBRA and managed care, one dealing with the definition of terms, and the third tackling enforcement concerns, says Bedard.

The groups met in June 1996, September 1996, and again in January, and recommendations from the subgroups were submitted to HCFA at the last meeting. The administration then compiled them into a single document that was sent out for comment to the individual organizations, says the official. The comments have been returned and the final draft will be begin the process of legal clearance within the administration.

Interface with managed care recommendations

Prior authorization for emergency services is inappropriate. The interface with managed care subgroup unanimously agreed that requiring prior authorization before the MSE is inappropriate under Section 1867 of the Social Security Act, the law that encompasses COBRA, says Bedard.

Who determines stabilization. The committee also agreed that it should be the examining physician who determines both when an emergency medical condition exists and when the patient is stable to transfer, he continues. If the managed care physician and the treating physician disagree, the managed care physician is responsible for either arranging an alternate disposition or coming into the ED and seeing the patient themselves.

Transfer to ambulatory care centers. A great deal of confusion exists over the obligations of hospital-owned ambulatory care centers under COBRA, says Bedard.

"Originally, HCFA wanted to say that if it was a hospital-owned ambulatory care center, it fell under the hospital’s license, and was, therefore, covered by EMTALA," he says. "We convinced them that was not very appropriate or a very wise position."

Such a regulation could result in two ambulatory care centers in a shopping center miles away from a hospital, one operated by a group of doctors and one by the hospital, with the one owned by the hospital obligated to offer medical screening to any person that presented to them, Bedard explains.

"That would have extended EMTALA to about 2500 ambulatory care centers across the country," he says. "It didn’t seem like they wanted to do that."

The new guidelines would state that an ambulatory care center could only be held to come under COBRA/EMTALA if they presented themselves as offering emergency services, he says.

"It should not be based on the licensure, but on what the function is."

Definitions

Medical screening examination. The first concept the members of the definitions group sought to clarify was the definition of an MSE, says Charlotte Yeh, MD, FACEP, chair of ACEP’s section on government affairs and the chair of the subgroup on definitions for the EMTALA task force.

"That was frankly the definition on which we reached consensus most easily," she says. "A medical screening exam is not triage. You have to go back to the parameters of what the statutory language offers. It is very clear that an MSE is whatever is required to determine the presence or absence of an emergency medical condition, which is fairly clearly defined in the statute.

That means an MSE could be as simple as a history and physical, or it could be complex and involve significant ancillary testing, such as CT scans or lumbar punctures."

Stabilization. The committee also defined stabilization in two different ways: stabilization for transfer and stabilization for discharge.

Doctors have been hung out to dry on this," says Bedard. "For example, there was a case in California, a boy came in with a cut chin, the ED sent him over to the primary care physician’s office to get the chin stitched up and the parents complained. The hospital was investigated, and HCFA said the patient wasn’t stable, ‘You should have sutured him up.’"

The recommendations state that the medical condition does not need to be completely resolved for the patient to be considered stable as long as proper follow-up or transfer is arranged, says Bedard.

Enforcement concerns

Termination tracks. Enforcement of the regulations now varies considerably from region to region, with the same violations occasionally bringing different penalties from HCFA, says Bedard.

If the recommendations of the committee are accepted, administrative violations will be put on a 90-day termination track, while clinical violations that involve danger to patients would be put on the more stringent 23-day termination track, says Bedard.

The committee also wants all clinical issues to undergo a peer review process before the facility is cited.

"Right now, the law allows it, and some regions use peer review, while others make clinical determinations without peer review," Bedard says. "I think you had problems with physicians who hadn’t seen patients in 15 years, making decisions that they were never trained to make."

Notification. The task force also hopes to get HCFA to increase the notice it gives hospitals that there will be an investigation, says Bedard.

"Right now, these investigations are done without any notification," he says. "A lot of them just come in and say, ‘There has been a complaint—randomly give us 60 records and we’ll go over them.’ You may not even know which patient it was."

The committee hopes to get a 24-48 hour notification of an investigation, plus the name of the patient the complaint involves, but not the name of the person filing the complaint, says Bedard.

"We said, ‘If you want an appropriate investigation, you may want to get the ambulance notes, the nursing notes, get the nurse involved and the physician involved, so we can sit and talk to you," he says. "Now, and I agree, they will not tell you who filed the complaint, it could be the patient, his family, somebody in the waiting room, the physician at a receiving hospital. You may never know who instituted the complaint."

ED signage and financial coercion

An area that the task force was unable to reach agreement on, however, was the limit on the amount of financial information ED personnel could give to patients, says Bedard.

Currently, telling patients—even when they ask—that their insurance will not cover treatment in the ED, or that the treatment will be expensive, can land the facility in hot water for "coercing" the patient to leave the department.

The common practice of placing a sign in the ED stating that the patient will be responsible for paying the bill if the insurance payer does not has been held to be in violation, says Bedard.

"I think then that they have an obligation to notify the 4,000 hospitals in this country that have signs up that they need to take them down," says Bedard.

They had hoped to at least come up with language for use in the ED that would allow them to give patients enough information to make a decision without being coercive in the eyes of the law, says Bedard. But HCFA officials said it was not within their mandate.

The administration can only do so much without violating the intent of the law, says the HCFA official involved with the negotiations. According to its legal counsel, making those changes was not within the administration’s power.

An operational policy letter from the Office of Managed Care to be issued later this year should deal with that issue, the official added.

Where it stands now

At press time, the final draft of recommendations was expected to be submitted to HCFA legal officials for clearance in late August.

Following its clearance, HCFA will begin revision of its SOM and task force members will conduct training seminars for the field surveyors in the administration’s nine regions, says Bedard.

"Right now, we still believe they are on their way for implementation in October," he says. "We are going to set up a training program for HCFA’s field officers on the new standards. We were supposed to do that in September but, due to HCFA’s reorganization, that has been pushed back probably until November."

Overall, both Bedard and Yeh are pleased with what the task force accomplished and hopeful about its impact on managed care and emergency services.

"We don’t want to forget that the intent behind COBRA was a good intent," says Yeh. "It was to ensure that people presenting to the ED without the means to pay at least got initial emergency care. The problem is, the interface with managed care created some conflict."

The changes in the guidelines will hopefully be an impetus for hospitals, providers and payers to become more educated about the federal requirements and how they plan to work within their framework to provide care, she continues. "When you come out with new or improved definitions, it is a great opportunity to go out and teach it."