The OIG and HCFA published a "Special Advisory Bulletin" in the November 10 Federal Register addressing managed care patients' rights under the federal anti-dumping statute (The Emergency Medical Treatment and Labor Act, or "EMTALA"). EMTALA prohibits a hospital's inquiry about an emergency department patient's method of payment or insurance status, or the use of such information, from delaying the patient's medical screening examination or stabilizing treatment. The bulletin was published in proposed form last December. Since then, HCFA and the OIG have received reactions from over 150 commentors.
One of the most controversial aspects of the document is its position on managed care organizations' (MCOs') practices of "dual staffing" hospital emergency departments with their own physicians, in addition to hospital emergency medical staff. The bulletin acknowledges the concerns of health care providers that dual staffing may lead to "separate but unequal treatment" of managed care and non-managed care patients. HCFA and the OIG concluded that dual staffing raises "serious issues," and cited numerous examples where the existence of both managed care and non-managed care "tracks" in hospital emergency departments could constitute EMTALA violations. However, despite the many risks associated with dual staffing, the bulletin declined to declare dual staffing an automatic EMTALA violation. Instead, the government is taking a wait-and-see approach, expecting that "practical experience with dually staffed emergency departments will reveal whether or not they can be maintained without violating EMTALA." In the meantime, HCFA and the OIG made it clear that hospitals and their physicians will bear the risk of EMTALA liability if MCO-imposed dual staffing arrangements result in unequal emergency care based upon method of payment or insurance status.
Among other sources of concern for hospitals and emergency room physicians are several of the recommended "best practices." For instance, the bulletin emphasized that hospitals may follow "reasonable registration processes" before performing medical screenings for patients who are not in an acute emergency situation, and that a reasonable registration process may include asking about the patient's insurance information. However, because EMTALA prohibits such inquiries from delaying a medical screening examination and appropriate stabilizing care, HCFA and the OIG insist that the "best" practice is for hospitals not to give financial responsibility forms or notices to emergency department patients until after the medical screening examination has been completed and any necessary stabilizing care is underway. Health care providers have commented that federal law requires them to give Medicare beneficiaries advance notice of their financial responsibility for services not covered by Medicare, and that the bulletin's "best practice" guidance will result in an inefficient "split registration" process.
Even if a patient asks about financial responsibility for emergency department services, the "best practice" guidelines encourage providers to defer such discussions until after the medical screening has been performed and any necessary stabilizing care has been initiated. The bulletin justifies this recommendation by citing concerns that advance disclosure of a patient's financial responsibility may discourage the patient from remaining for emergency care. We are concerned about this "ostrich-like" approach of ignoring financial responsibility issues. Although the recommended "best practices" do not have the legal import of binding regulations, they tend to become the benchmarks for HCFA surveyors and OIG prosecutors. Hospital staff need to be able to discuss financial responsibility with patients without fear of violating EMTALA.
Please contact Connie Baker (410-244-7535, chbaker@venable.com) or Venable has offices in Maryland, Washington, D.C. and Virginia.
Please contact Connie Baker (410-244-7535, chbaker@venable.com) for further information, or to discuss an in-service presentation regarding EMTALA compliance.
One of the most controversial aspects of the document is its position on managed care organizations' (MCOs') practices of "dual staffing" hospital emergency departments with their own physicians, in addition to hospital emergency medical staff. The bulletin acknowledges the concerns of health care providers that dual staffing may lead to "separate but unequal treatment" of managed care and non-managed care patients. HCFA and the OIG concluded that dual staffing raises "serious issues," and cited numerous examples where the existence of both managed care and non-managed care "tracks" in hospital emergency departments could constitute EMTALA violations. However, despite the many risks associated with dual staffing, the bulletin declined to declare dual staffing an automatic EMTALA violation. Instead, the government is taking a wait-and-see approach, expecting that "practical experience with dually staffed emergency departments will reveal whether or not they can be maintained without violating EMTALA." In the meantime, HCFA and the OIG made it clear that hospitals and their physicians will bear the risk of EMTALA liability if MCO-imposed dual staffing arrangements result in unequal emergency care based upon method of payment or insurance status.
Among other sources of concern for hospitals and emergency room physicians are several of the recommended "best practices." For instance, the bulletin emphasized that hospitals may follow "reasonable registration processes" before performing medical screenings for patients who are not in an acute emergency situation, and that a reasonable registration process may include asking about the patient's insurance information. However, because EMTALA prohibits such inquiries from delaying a medical screening examination and appropriate stabilizing care, HCFA and the OIG insist that the "best" practice is for hospitals not to give financial responsibility forms or notices to emergency department patients until after the medical screening examination has been completed and any necessary stabilizing care is underway. Health care providers have commented that federal law requires them to give Medicare beneficiaries advance notice of their financial responsibility for services not covered by Medicare, and that the bulletin's "best practice" guidance will result in an inefficient "split registration" process.
Even if a patient asks about financial responsibility for emergency department services, the "best practice" guidelines encourage providers to defer such discussions until after the medical screening has been performed and any necessary stabilizing care has been initiated. The bulletin justifies this recommendation by citing concerns that advance disclosure of a patient's financial responsibility may discourage the patient from remaining for emergency care. We are concerned about this "ostrich-like" approach of ignoring financial responsibility issues. Although the recommended "best practices" do not have the legal import of binding regulations, they tend to become the benchmarks for HCFA surveyors and OIG prosecutors. Hospital staff need to be able to discuss financial responsibility with patients without fear of violating EMTALA.
Please contact Connie Baker (410-244-7535, chbaker@venable.com) or Venable has offices in Maryland, Washington, D.C. and Virginia.
Please contact Connie Baker (410-244-7535, chbaker@venable.com) for further information, or to discuss an in-service presentation regarding EMTALA compliance.