Warning: COBRA contract conflicts can leave you some litigious decisions
April 1, 1997 5 minutes read
Warning: COBRA contract conflicts can leave you some litigious decisions
Some common language can conflict with federal laws
Do your managed care contracts run contrary to federal law? They do if they don’t allow capitated out-of-plan patients to get proper screening and treatment in your emergency department.
This is a problem that is becoming increasingly common and coming under closer scrutiny by federal prosecutors responsible for enforcing the Consolidated Omnibus Budget Reconciliation Act (COBRA), says Stephen Frew, JD, president of the Frew Consulting Group in Rockford, IL.
"People have to understand that COBRA and managed care are completely irreconcilable," Frew says. "Many people feel that they are just missing something, that there must be some common ground between the two. But there isn’t. Either you choose to comply with the managed care procedures, or you choose to comply with the law. There is very little shared ground."
What’s more, many people erroneously think of the law as an anti-dumping statute. "People say, We don’t dump,’ and thereby assume that the law does not apply to them," Frew adds. "But the law has very little to do with dumping. It’s more about getting access to emergency health care."
There are, however, ways to avoid a meeting with federal prosecutors. These include recognizing potential problem areas, writing contract clauses that address COBRA, putting the proper policies in place to deal with these situations in-house, and then making sure the policies are followed.
One of the most common violations centers on prior authorization contract language that says caregivers must get approval from presenting patients’ "home" plan or providers before screening the patient or starting treatment. This type of language is written into a lot of contracts now, Frew says. Such wording, if followed, could lead to disastrous financial consequences that could include five- to seven-figure fines and expulsions from Medicare a financial lifeline for many health systems. (For more information, see story on p. 39.)
"What we see most commonly," Frew says, "is that someone [from the emergency department where the patient presented] will call the patient’s primary care physician or plan gatekeeper who says We are not authorizing payment’ or Send them to our clinic.’ If they comply with that, they have just violated federal law."
In short, the relevant portion of the federal COBRA law says that every patient that presents to the emergency department must receive a medical screening exam. If the exam indicates that a medical emergency exists which is defined by legal, not medical terms then the patient must be treated at the clinic or hospital where the patient first sought care.
Another problem area that has led to citations is transferring patients before they are stable, which again is defined in legal, not medical terms. "It’s a judgment call," Frew adds. "But traditional physicians tend to mark patients as stable that don’t qualify under the law as stable. The legal definition says that there can’t be any reasonable possibility that the patient will deteriorate from or during movement."
Frew gives the example of a patient who presents at the emergency department with abdominal pain. It’s discovered that the patient has an aortic aneurysm. The patient has been properly screened, is given medications and the proper IVs, and is ready to travel by ambulance to his or her "home" health system.
In a caregiver’s eyes, this patient may be deemed stable. Legally, however, it’s another matter since there is the possibility of that aneurysm rupturing, Frew says. "That patient is at risk of deteriorating and can only be moved because of medical necessity, that is, if the health system where the patient presented cannot provide the needed medical services."
In another example, a patient comes in with a broken arm. Is it legal to simply splint the arm and then send the patient off to a "home" facility for casting? "There have been instances where that has been ruled inappropriate," Frew says. "The casting must be done in the hospital where the patient presented." The reasoning behind such stringent requirements is that if the patient leaves without getting proper treatment, the patient could, in effect, be cast out into what Frew calls the "medical lottery." [The patient] could very well end up not being seen at all," Frew says.
With pregnancies, a woman presenting to the emergency department is considered unstable from the time she begins having contractions to the point where the baby and placenta are delivered, he adds.
Policies that protect
When a violation is suspected and investigators come knocking, one of the first things they will probably want to review is the health system’s policy statements that cover screenings and transfers, says Claudia Hinrichsen, JD, an attorney with Nixon, Hargrave, Devans & Doyle in Garden City, NY. The key to surviving the review is to have clear, well-defined policies. "They are going to want to see your policies, showing that you provide appropriate screening exams and patient transfers," she says.
Besides having those policies approved and handy, it’s also wise to conduct documented inservice training programs that educate medical staff about them, Hinrichsen adds.
All hospitals are required by law to have these policies. But Frew says that many health systems haven’t developed these guiding statements, or if they have, they are minimal in nature. Some do have solid policies but don’t follow them. "That’s fatal," he says. "If you have a choice, it’s better to have skeletal policies that are followed rather than real solid policies that aren’t followed."
He says that policy statements should include:
• legal definitions of patient stability;
• transfer guidelines;
• triage procedures;
• guidelines for the medical screening exam;
• names of medical staff authorized to conduct the exam.
Confusion is common over who must conduct the screening exam, says Jack Duffy, corporate director of patient financial services for ScrippsHealth in San Diego. In fact, hospitals tend to underutilize the concept of triage, he says.
"Staffs have tended to define triage as being seen by a doctor," Duffy says. "By then, most of the expenses associated with the care have been ordered." A perfectly legal alternative in many instances is to have a nurse or some other health care professional trained in triage determine if a medical emergency exists, Duffy says.
According to guidelines issued by the Health Care Financing Administration, the screening must be the same as that given to every other person presenting to the emergency department with the same signs and symptoms, regardless of ability to pay. The screening can be performed by "non-physicians according to protocol established by the medical staff and with physicians available when needed," the guidelines state. "Many emergency departments have not developed a well-understood policy of triage and release," Duffy says. "You are not without options in terms of how you manage these cases."
Stephen Frew, President, Frew Consulting Group, 6072 Brynwood Dr., Suite 203, Rockford, IL 61114. Telephone: (815) 654-2123.
Claudia Hinrichsen, Attorney, Nixon, Hargrave, Devans & Doyle, 990 Stewart Ave., Garden City, NY 11530-4348. Telephone: (516) 832-7626.
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