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Agency to use HIPAA money to expand focus of patient-dumping probes from hospitals to physicians
Armed with increased resources and manpower as a result of the 1996 Health Insurance Portability and Accountability Act, the Health and Human Services Office of Inspector General (OIG) is making patient dumping prosecutions a high priority. And for the first time, OIG investigators will be taking a hard look not only at hospitals but at on-call physicians as well.
Since 1997, the OIG’s staff of lawyers has tripled, from six to 18. Several of the new hires are working almost exclusively on patient-dumping cases, which involve violations of the 1986 Emergency Medical Treatment and Active Labor Act (EMTALA).
"The resources have enabled us to provide added focus on enforcement of the statute — regardless of whether a hospital or physician or both might be culpable for a violation," says Thomas Herrmann, OIG’s chief of administrative litigation.
While Herrmann says the agency isn’t headhunting for physicians, the number of physician settlements under EMTALA has increased dramatically in the last few years, according to the OIG’s own statistics. Between 1986 and 1995, there were only two EMTALA judgements against physicians. Since then, there have been 13, and more are in the works. Overall, the number of EMTALA settlements has increased from 13 in 1997 to 53 a year later. Between 1986 and 1996, hospitals and physicians paid a total of $1.45 million in EMTALA settlements. That number rose to $2.3 million for 1997 and 1998.
Herrmann acknowledges that hospitals remain primarily liable for patient dumping violations. "However, the law and regulations have expanded to include agents of the hospital," he says. "That’s why we have an ongoing education effort to continue to advise emergency department physicians and on-call physicians that they also are liable for compliance [with EMTALA]."
For example, Herrmann cites a case in which an OB/GYN under contract with a hospital was called to the emergency department to assist a woman who was in active labor. He chose not to come in. "That was a violation of the statute," Herrmann says. "Since he was under contract with the hospital, he was an agent of the hospital, and the patient was entitled to get stabilization treatment."
Gerald O. Strauch, MD, director of the trauma department at the American College of Surgeons in Chicago, maintains however, that physicians aren’t an appropriate target in most patient-dumping probes because, unlike the hospital, they have little financial stake in inappropriately transferring patients. "Physicians take care of patients as they encounter them," he says. "It’s the institutions that step back and take a look at their bottom line. Targeting physicians for patient dumping is likely to be pretty fruitless for the feds."
Strauch cites the recent case of Theodore Cherukuri, MD, FACS, a physician in Williamson, KY, who was deemed by an administrative law judge to have violated EMTALA by transferring two patients from a rural facility to an urban hospital across state lines without adequately stabilizing them. He was assessed an administrative fine of $100,000, but the judgement was overturned by a U.S. Circuit Court of Appeals. The Circuit Court judge ruled that Cherukuri had acted appropriately because he simply did not have the resources at his disposal to properly care for the patients in question.
Herrmann concedes that there are gray areas in the law and notes that hospitals are required to provide stabilization only within their "capabilities and capacities."
"I still would respectfully disagree with the court of appeals on [the Cherukuri] case, but reasonable people can differ," he says. "Like any other situation, we try our best to properly assess the facts and make our best evaluation." He stresses that the OIG relies on state peer review organizations to assist in evaluating the merits of cases against physician that involve medical judgements.