Managed care resurrects 'dumping' fears
Managed care resurrects dumping’ fears
Emergency care issues create dumping charges
By Patrice Spath, ART
Consultant in Health Care Quality and Resource Management
Forest Grove, OR
With managed care on the increase nationwide, hospitals face new financial risks of non-payment. Managed care organizations often refuse to pay for emergency department visits that do not represent a true emergent situation. It is not uncommon for managed care plans to put the pressure on hospitals and emergency departments to turn away non-emergent patients.
Even when the situation is deemed emergent, if the hospital is not a participating provider in the patient’s health plan, they may be coerced by another provider to transfer the patient before treatment is given. This places the transferring hospital in another type of financial jeopardy they risk civil fines and loss of Medicare, Medicaid, and other federal funds if they fail to comply with the federal Emergency Medical Treatment and Active Labor Act (EMTALA).
This Act was enacted in 1986 to address a practice typically known as "patient dumping." The Act was designed to address the public’s concern about reports that hospital emergency departments (EDs) were refusing to accept or treat patients who didn’t have medical insurance. To reinforce the provisions of the EMTALA, Congress at the same time amended the Social Security Act to require hospitals to comply with EMTALA as a condition of continued participation in the Medicare program.
Under EMTALA, a hospital must provide an appropriate medical screening to all people who come to its ED seeking medical attention. The purpose of the medical screening exam is to determine if the patient’s condition represents an "emergency medical condition." The Act defines a medical emergency as a medical condition that manifests itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to place the health of the individual in serious jeopardy. If a medical emergency exists, the hospital must provide the services necessary to stabilize the patient’s condition, unless transferring the patient to another facility is medically indicated and can be accomplished with relative safety.
Follow emergency care system
Under federal law, Medicare participating hospitals have several specific duties in regard to emergency care:
• Provide, for anyone who comes to the hospital ED, an appropriate medical screening examination by a qualified individual, to determine whether an emergency medical condition is present.
• If the hospital determines that an emergency medical condition is present, either treat that condition so the patient may be discharged without significant risk or safely and appropriately transfer the individual to another hospital.
• Examination, treatment, or transfer may not be delayed in order to make an inquiry about method of payment or to verify insurance coverage.
The patient anti-dumping law was enacted to give everybody equal access to emergency care in Medicare-participating hospitals. It follows that hospitals have the same responsibilities toward patients in managed care plans as any other patients and are obligated by regulation to provide these individuals with an appropriate medical screening examination.
A hospital that triages a patient, then calls the patient’s managed care plan for approval to further screen and treat, followed by discharge and referral to the managed care plan, risks a violation of the EMTALA regulations for failure to provide an appropriate medical screening examination and/or a delay in treatment.
The process of triaging emergency patients is not a screening examination. Triage is used by EDs to determine the order in which patients will be evaluated and treated. The provisions of EMTALA call for a screening examination to determine if the patient’s condition represents a medical emergency. This decision cannot be made without proper history, physical assessment, and, when indicated, diagnostic tests.
A recent study at University Hospital in Albuquerque, NM, raised questions about the reliability of ED triage by non-physicians. The researchers found there was significant disagreement between physicians and nurses with regard to triage categorization of emergency patients. About 5,000 patients were evaluated by a nurse, then a physician performed a separate assessment, with access to the initial assessment by the nurse.
While physicians and nurses agreed on a majority of cases, there was some disagreement. Overall agreement between physicians and nurses was 63%. When the study statistically corrected the sample for chance agreement, the rate of agreement went down to less than half.
Communication, cooperation are essential
Although the New Mexico experience is not universal, it points out the importance of communication and cooperation among all the professional caregivers in the ED. Many hospitals only allow senior staff nurses to evaluate emergency patients and encourage free flow of information between nurses and physicians. It is important that each hospital clearly define:
• the "qualified medical personnel" responsible for completing an emergency patient’s initial assessment;
• what constitutes an "appropriate medical screening" assessment;
• the role of physicians in overseeing the assessment results.
Be sure to include documentation requirements in this procedure. What should be recorded by the triage nurse in the patient’s record? How are changes in the patient’s condition during the emergency room visit documented? What must be recorded by the physician?
Protocols cause problems
Some emergency departments use algor-ithm-driven protocols to determine whether a patient’s condition is non-emergent. This may be a dangerous practice. Without a clini- cal assessment, seemingly mild conditions (i.e., heart burn, earache, etc.) may meet the definition of a medical emergency upon closer scrutiny by a physician. Another potential problem with protocols is when they aren’t used for all patients. If the protocols are only applied to Medicare patients and those enrolled in managed care health plans, your hospital may risk being out of compliance with EMTALA regulations.
The Act requires that all patients presenting to the ED be given a proper and customary evaluation to rule out an emergency condition. Unless emergency caregivers use the same "triage protocol" for all patients, they may be violating federal laws. For example, if you evaluate and treat a "private pay" patient with an earache, but you send a Medicare, Medicaid, or HMO patient with an earache to their doctor’s office without having first evaluated them, you could be liable for turning away a patient without a proper and customary evaluation. Unlike malpractice situations, there does not have to be a bad outcome for the hospital to be found guilty of "patient dumping."
Cross the t’s and dot the i’s’
If an emergency medical condition is discovered, the hospital must either provide treatment sufficient to stabilize the patient’s condition or transfer the patient to another medical facility. The EMTALA regulations are very prescriptive with regard to patient transfers you need to make sure you cross every t and dot every i. If your chart documentation is inadequate, you don’t have much of a case if a patient or their family claims violation of the EMTALA regulations.
A patient with an emergency medical condition who has not been stabilized may not be transferred unless a physician certifies, in writing, that the specific benefits of the transfer outweigh the risks or the patient requests the transfer in writing. Such a transfer must meet the following definition of "appropriate":
• Treatment is given to minimize the risks of transfers.
• The receiving hospital has agreed to accept the transfer.
• All appropriate records are sent with the patient.
• Transportation equipment and personnel are qualified and appropriate.
A patient may refuse transfer; however, the circumstances surrounding this refusal must be meticulously documented in the chart.
Use the audit checklist (see p. 104) to evaluate whether the records of patients who are transferred to another facility from your ED contain adequate documentation of compliance with federal requirements.
EMTALA regulations include many other requirements. For example, hospitals must maintain a central log of emergency patients, keep records of all transfers for 5 years, post signs to inform the public of these requirements, keep lists of on-call physicians, report any suspected improper transfer, and have policies and procedures to ensure compliance.
Resource on EMTALA regulations available
The American College of Emergency Physicians (ACEP) publishes a good resource on EMTALA regulations: Patient Transfers: How to Comply With the Law (Second Edition) 1995. Author: Stephen A. Frew, JD. Price: $54 (non-member); $45 (member) plus $2 shipping/handling. For ordering information call the ACEP in Dallas, TX, at (214) 550-0911.
EMTALA provides federal monetary penalties of up to $50,000 per violation and allows private lawsuits against those facilities who violate its provisions. EMTALA does not create a cause of action for medical malpractice as such but rather for damages resulting from the failure to screen and/or stabilize the patient appropriately.
Plaintiffs may seek damage claims under the federal act because they are cheaper to bring and easier to win than negligence lawsuits in state courts for medical practice. That’s because expensive expert witnesses aren’t required under the federal act, patients have more time to bring their claims, and federal courts frequently don’t enforce state provisions limiting hospital liability. Don’t wait until your facility is named in a lawsuit to ensure that you are meeting EMTALA regulations!
Suggested readings
• Brillman JC, Doezema D, Tandberg D, et al. Does a physician visual assessment change triage? Am J Emerg Med, 1997; 15: 29-33.
• Brillman JC, Doezema D, Tandberg D, et al. Triage: Limitations in predicting need for emergent care and hospital admission. Ann Emerg Med, 1996; 27:493-500.
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