EMTALA bulletin carries new risks for hospitals
Even a long wait in the emergency department can trigger violation
With the release of a final special advisory bulletin last week, the Health and Human Services (HHS) Office of Inspector General (OIG) has dramatically escalated its crackdown on violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), the federal law that prohibits patient dumping.
Mary Lou King, a partner with McDermott, Will & Emory in Washington, DC, says the bulletin released Nov. 9 includes several new components that could threaten hospitals. One particular trouble spot is the practice of dual-staffing, which refers to when a managed care plan places its own hospitalist in the emergency room to ensure that plan members who enter the emergency room are treated in accordance with the plan's utilization guidelines.
"The bulletin raises so many risks regarding those kinds of arrangements that it is difficult for me to see how many hospitals are going to be able to reconcile them," says King. She adds that it would be too difficult for hospitals to conduct two equal tracks in the same emergency room. "That is really what EMTALA has become," adds King. "It is really the Equality in Patient Treatment in the Emergency Room Act."
Additionally, another new component says hospitals could violate the patient anti-dumping statute if they routinely keep patients waiting so long that they leave the hospital without being seen. "It raises a very large question," King asserts, "for hospitals about the waiting time in their emergency rooms, but does not provide 'bright line guidance' about what is acceptable waiting time."
King says the inclusion of this item is "very ominous" for hospitals that are routinely overburdened in their emergency rooms. "These are the [situations] that EMTALA was enacted to prevent in 1986," she adds. "What they are saying now is we potentially will enforce EMTALA in hospital emergency rooms with long waiting times."
A third area of concern has to do with the collection of financial information from patients in the emergency room. "The bottom line is, they say don't collect financial information until after the medical screening examination," King says.
According to King, a patient's condition must be stabilized before financial information can be collected or authorization can be requested from the payer.
But she adds that the process can begin after stabilizing treatment has been commenced but not necessarily completed. "It is fairly explicit now that, once stabilizing treatment has commenced, financial information can be sought and prior approval can be sought."
The OIG's draft bulletin on EMTALA, issued last year, was supposed to clarify the obligation of hospitals to medically screen all patients seeking emergency services and provide stabilizing treatment as necessary. According to the OIG, the major issues raised in the 150 sets of comments it received in response to the draft concerned dual staffing, prior authorization, financial responsibility forms and advanced beneficiary notifications, and patient inquiries regarding the obligation to pay for emergency services.
EMTALA violations can result in termination from the Medicare program, as well as monetary penalties imposed by the OIG.
In recent years, the OIG has dramatically increased its anti-dumping enforcement activities — from a total of 66 settlements and judgements worth $1.45 million between 1986 and 1996 — to 67 settlements and judgements worth $2.31 million in 1997 and 1998 alone. Nine months into FY ’99, the OIG had already racked up 49 settlements worth a total of $1.42 million.
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