OIG ratchets up EMTALA enforcement actions
OIG ratchets up EMTALA enforcement actions
Patient dumping settlements hit 49 in June, number still climbing, Office of Inspector General says
Your emergency room managers may be among the more than 200 hospital executives who have been contacted by the Department of Health and Human Services (HHS) Office of Inspector General (OIG) with a list of questions about your compliance with the patient-dumping law — the Emergency Medical Treatment and Active Labor Act (EMTALA) — and you may not even know it. That’s because the OIG is reportedly contacting ER managers directly.
According to the OIG, the inquiry "is not an investigation or an audit." But as the oversight arm of the Medicare program, the OIG says it’s "authorized to request this information." The letter asks for the names and addresses of ER personnel, including physicians, nurses, and on-call specialists. It also asks for hospital policies or bylaws regarding emergency department registration procedures, triage procedures, medical screening exams, interfacility transfers, as well as a copy of the hospital’s license. Some letters also request a focus group of ER personnel to participate in a two-hour interview with OIG representatives.
What’s behind these requests? The OIG says this "policy study" is simply designed to gauge hospital personnel’s knowledge of compliance with EMTALA, and that all information collected will remain completely anonymous. OIG spokeswoman Alwyn Cassil says flatly that the OIG’s study is not related to any enforcement activity. "It is part of an evaluation the Office of Evaluation and Inspections is doing looking at whether staff in ER departments are aware of EMTALA and assessing the EMTALA complaint and investigative process," she asserts.
But several observers see it as the latest phase in the OIG’s ambitious campaign to dramatically expand the reach of EMTALA. "It is good to be alarmed when there is reason to be alarmed," says Lowell Brown, a health care attorney and partner with Foley & Lardner in Los Angeles.
EMTALA has long been "the unwanted stepchild of compliance," according to Brown, a nationally recognized expert in that area. When most people think of compliance they think of coding and false claims, but EMTALA is a "ticking time bomb" for facilities that are not paying attention to it, he warns.
EMTALA violations pack considerable punch these days. For one thing, they are increasing dramatically. Compare the 66 settlements and judgments between 1986 and 1996 totaling $1.45 million to the 67 settlements and judgments worth $2.31 million in 1997 and 1998 alone. This year, the OIG reports that it racked up 49 settlements worth a total of $1.42 million nine months into the fiscal year.
Hospitals with fewer than 100 beds are subject to $25,000 fines while hospitals with over 100 beds get smacked for $50,000 per violation. Worse yet, the OIG is getting much more aggressive about pursuing fines per violation. "Keep in mind that it is not possible to violate EMTALA in only one way," warns Brown. "Even the simplest refusal to see a patient is at least three violations of the law and the OIG considers that to be a $150,000 fine."
But it doesn’t stop there. If a patient is harmed as a result of an EMTALA violation, the hospital is liable for those damages as well. "EMTALA includes a private cause of action," explains OIG’s Cassil. "The liability that hospitals face under EMTALA is far more significant there than in anything we can impose on them."
On top of all that is the bad PR. Very few hospitals are ultimately terminated from the Medicare program, but the process can be excruciating. "If you have ever been through an EMTALA investigation, the HCFA investigation and action and the OIG fine process, you will understand the amount of scar tissue that is left behind," says Brown.
The bad news about EMTALA is that it’s easy to violate. The good news is that compliance is a realistic goal if you are careful and diligent. Here are the steps Brown recommends to avoid self-inflicted wounds:
- Policy review. Many hospitals have EMTALA compliance policies that were drawn up before the regulations came out in 1994 (eight years after the statute was passed). Those regulations not only expand the statute but sometimes even create violations, according to Brown. For example, the statute says nothing about reporting requirements, but the regulations say that if a hospital has been the recipient of a suspicious transfer, it is required to report that incident.
Likewise, the statute says the law applies to hospitals with an emergency department, but the regulations apply it to any facility that offers "emergency services."
- Training. Brown says training must be regular, ongoing, and performed at least annually. "It is amazing how often we see a great training program, but hospitals only do it every couple of years," he says. "If your policies track the law, all you need to do is teach employees your policies in order to minimize your violations."
In addition, employee evaluations should include participation and support of all compliance efforts including EMTALA, advises Brown. A hospital negotiating with the OIG that can show an employee who violated the law was cited and disciplined might well find its fine substantially reduced, he says.
- Monitor compliance. Another often-overlooked area is compliance monitoring, according to Brown. "If a patient comes in and leaves, that patient’s story is going to be believed as the gospel truth by HCFA and the OIG unless you have some documentation," he warns.
Brown also notes that many EMTALA violations are sentinel events under the new JCAHO standards and require root cause’ analysis. The federal statute gives patients the right to sue the hospital for an EMTALA violation for injury, and federal law usually doesn’t pay attention to peer review or quality assurance privileges, he asserts.
Finally, Brown generally discourages hospitals from self-reporting incidents. "There is nothing to be gained from it unless another hospital has already threatened to report you and then you might as well report yourself," he says. Instead, he advises hospitals to immediately correct any problems it finds. "If you find a violation, jump on it and fix it. Then if HCFA ever comes to investigate you, it should not begin termination unless you have had other violations in the recent past."
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