Update on EMTALA and managed care: HCFA issues special advisory bulletin
Update on EMTALA and managed care: HCFA issues special advisory bulletin
The Office of Inspector General (OIG) and Health Care Financing Administration (HCFA) published a proposed Special Advisory Bulletin designed to address requirements of EMTALA and managed care, focusing on the obligations of hospitals to screen all patients seeking emergency services and provide stabilizing medical treatment to enrollees of managed care plans if their condition warrants it.
"This appears to be the initiative that the OIG was talking about, which they said was forthcoming," says Steven Frew, JD, a Rockford, IL-based health care consultant and attorney. "By asking for comments, the clear intention is to gather data and support for that position. If the data supports their general direction, we can expect significant changes."
However, the bottom line for compliance with EMTALA still falls squarely on the hospital’s shoulders, notes Stephen Dresnick, MD, FACEP, president and CEO of Sterling Health Care Group in Coral Gables, FL. "Clearly, EMTALA was directed at hospitals and not at managed care plans, and this bulletin doesn’t change that," he says. "Unfortunately, there will still be issues with managed care plans and willingness to pay EDs for services rendered."
Here are key issues raised in the bulletin and how they could affect your ED:
Possibility of revised regulations. The next step will probably be supplemental regulations to the 1994 federal regulations, which would have the effect of holding managed care plans accountable, says Frew. "One major change would be raising the ban on preauthorization from a guideline to a regulatory level," he says. "This would raise it to higher level of enforceability."
Ban on preauthorization. "I expect we are headed for a flat out ban on preauthorization, which would put all retrospective pay denials under a lot of scrutiny," says Frew. "Currently, some states ban preauthorization and ban retrospective denials of prudent layperson visits. But most of those states are having problems with managed care plans and payers still trying to duck those rules."
For instance, the Balanced Budget Act, which passed more than a year ago, banned prior authorization and retrospective denials for Medicare and Medicaid patients, notes Frew. "But it was phased in when new contracts are written, so a lot of organizations just did not write new contracts," he says. "Others flat out ignored the change in the law. Some payers simply will attempt to get away with as much as possible."
"We will begin to see state initiatives to mandate that managed care plans pay for ED visits," predicts Dresnick. "What seems like a simple issue is in fact complex and needs to be attacked at both the state and federal levels," he explains.
MCOs are under the gun for fraud and abuse. Right now, hospitals are the only ones at risk for following managed care requirements, Frew notes. "But this would shift the burden more equally to MCOs," he predicts. "The bulletin is, in effect, saying you can’t ask hospitals to violate EMTALA, or we’ll get you for fraud or abuse."
MCOs could be held accountable through fraud and abuse regulations, Frew explains. "To issue a fraud alert in that way, the OIG would not have to go through the same procedures as pursuing it through the regulations," he says. "The OIG is reputed not to be happy with the failure of The Patient Rights Act in Congress. They are looking to make regulatory changes with managed care, but they may start out by pursuing fraud alerts."
The fraud and abuse regulations are another route to hold MCOs accountable. "The preauthorization requirements of managed care have the effect of putting financial pressure on hospitals to violate EMTALA. Offering either a positive or negative inducement for the hospital to violate the federal regulations is one of the definitions for fraud and abuse," says Frew.
In effect, MCOs are offering hospitals a negative incentive to violate the law, says Frew. "Saying to a hospital, you do this and violate EMTALA or you don’t get paid’ would fall within the scope of the general definition of Medicaid fraud and abuse," he says. "Even if the individual patient is not a Medicaid participant, it adversely affects the entire delivery of care."
Increase in litigation. "Civil actions based on EMTALA violations appear to be increasing slightly, although not nearly as fast as administrative activity," says Frew. "A recent Supreme Court decision will have the effect of generating more litigation from discharges of hospitals. The solicitor general in the arguments in that case told the Supreme Court that HCFA was going to look at regulatory applications now that would deal with the inpatient setting under EMTALA."
Using EMTALA as the basis of malpractice lawsuits is not appropriate, says Dresnick. "The original intent was to prevent patient dumping onto county hospitals," he notes. "The bulletin will help ensure this won’t be misinterpreted or misused in the future. It’s gotten out of hand when a patient files an EMTALA violation after being hospitalized for three months."
New bargaining power. The HCFA bulletin can help you negotiate contracts, Dresnick says. "Our group has, for some time, insisted that clauses be included which state that preauthorization for payment or treatment is not indicated when patients are seen pursuant to federal or state law," he explains. "So we have not had this problem to any great extent, because we have not allowed MCOs to put us in that position. But problems do exist, and this bulletin is helpful for anybody to understand as they judicate claims or negotiate their contracts."
"The clarification will not be in the areas of what hospitals should be doing now, because that is already in place. They simply cannot make preauthorization calls, end of discussion," Frew explains. "But it would give hospitals new bargaining power in the event they ban preauthorization across the board or ban dual staffing."
Dual staffing controversy addressed. The advisory bulletin raises concerns about the dual staffing arrangement in which the hospital permits the MCO to station its own physicians in the hospital’s emergency department, separate from the hospital’s own emergency physician staff, for the purpose of screening and treating MCO patients who request emergency services.
In a dual staffing setting, two separate physician groups provide care, possibly using different policies and protocols, performing different procedures, using different referral practices and drug formularies, relying on different on-call physicians, and having different credentials.
"Historically, HCFA has have hinted that they consider this an inherently unequal treatment, which only exists for the purpose of skimming managed care patients out of the ED and putting them back into the managed care system," Frew notes. "So I would expect that they are going to say that this practice inheritely prejudices the system against EMTALA compliance."
Managed care plans are cutting costs by paying doctors to duplicate ED coverage solely for their participants. "Dual staffing is a new concept that hasn’t penetrated the market extensively yet. However, there is obviously a lot of money involved here and it will probably expand,"says Frew.
Dual staffing segregates out patients in managed care plans, says Larry Bedard, MD, FACEP, director of emergency services at Doctor’s Medical Center in San Pablo, CA. "I believe it is a clear violation of EMTALA to segregate patients out based on their financial status," he says. "This sets up two systems of care, and in essence discriminates against people based on their financial status."
Medicare and Medicaid patients and prior authorization. The bulletin addresses rules governing Medicare and Medicaid managed care plans with respect to prior authorization requirements and payment for emergency services.
Best practices. The bulletin addresses "best practices" that will promote compliance with EMTALA by hospitals when managed care enrollees seek emergency services. These best practices include:
• No prior authorization before screening or stabilization;
• No financial responsibility or advanced beneficiary notification forms prior to performing an appropriate medical screening examination; and
• Qualified medical personnel must perform medical screening examination.
Medical malpractice cases. "Many plaintiff lawyers are using EMTALA as a basis for medical malpractice cases, which is not what it was intended to do," says Dresnick. "Because of some lack of clarity in some areas, they have shifted the onus from plaintiffs to defendants to prove they hadn’t violated EMTALA. There was recently a case of an alleged EMTALA violation after the patient had been hospitalized for three months. The issues EMTALA was originally designed to address somehow became less clear."
Closing loopholes. "Many managed care plans have tried to contract their way to success and reduce use by throwing up roadblocks to care," says Dresnick. "The events of this past year demonstrate vividly why that is not a strategy for long term success."
"We are beginning to see plans focusing what they should focus on, which is better patient care," Dresnick notes. "By clarifying regulations, the bulletin will close loopholes and force managed care plans to devote time to things they should have been doing all along."
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