EMTALA vs. managed care: The battle continues
There has always been a conflict between the requirements of EMTALA and managed care. "EMTALA is a law of process that ensures nondiscriminatory access to emergency services," says Charlotte Yeh, MD, FACEP, chief of emergency medicine at New England Medical Center in Boston and a member of HCFA's task force on EMTALA. "It is totally divorced from payment and coverage issues. That is why there has been such conflict surrounding EMTALA, because it does not mesh with financial realities."
The new EMTALA guidelines will have an effect on MCOs because the clarified requirements are tougher to challenge. "Managed care firms will be forced to look closely at their current practices," says Yeh. "As the facts of the law become more widespread, the managed care industry will have to work with EDs to determine the best ways to meet the requirements."
Here are some tips when negotiating with managed care:
Point out that prior authorization is not allowed under EMTALA. The new guidelines will make it harder for MCOs to insist on this practice, says Yeh. "This will be a big help for EDs when they explain why they cannot do prior authorization," she explains. "One of the biggest challenges for the managed care industry is how they will educate all the primary care physicians, who, over the years, have come to expect prior authorization as a norm."
Prior authorization requirements of MCOs have resulted in multiple EMTALA citations for many EDs, says Steven Frew, JD, a Rockford, IL-based health care attorney and consultant. "There are plenty of citations for this, but they are generally not circulated and available," he explains.
Still, there is obviously going to be a great deal of pressure from MCOs to do prior authorization, says Frew. "But hospitals can now show in black and white that it's not allowed," he notes. "For plans the least bit concerned about compliance, that's going to be an important tool."
Make sure that managed care contracts are not putting the hospital out of compliance with EMTALA. "You want to be sure that any managed care contract is operating within the confines of the law," Yeh emphasizes. "Until recently, because of lack of awareness about the EMTALA provision, hospitals were entering into contracts that violated federal law."
Last year in Maryland, six hospitals signed managed care contracts agreeing to call for prior authorization, which was a violation of the law, reports Larry Bedard, MD, FACEP, director of emergency services at Doctor's Medical Center, San Pablo and Pinole campuses and immediate past president of ACEP. "Maryland ACEP protested, and HCFA said they couldn't sign the contract because it was illegal," he says.
This practice is still going on, says Frew. "Even though it's absolutely improper, Maine has people sign a form before the patient is screened, after triage, saying that they understand that if it's not an emergency, his or her bill isn't going to get paid," he notes. "That violates the Balanced Budget Act of 1997, and it's going to get people in trouble."
Spell out EMTALA requirements for HMO gatekeeper physicians. When there is disagreement about whether a patient should be transferred, it's important to be direct in explaining the requirements of the law. This tactic may cause the gatekeeper to allow the patient to stay, says Bedard.
"If he or she say, 'Unless you transfer this patient we won't reimburse you,' I tell him or her, 'You are in violation of the law because you want me to transfer an inappropriate patient. I need your name and address because the law is very clear on this'," Bedard says. "I've had that conversation many times, and every time the doctor agrees to allow the patient to stay."
The new guidelines should reduce those confrontations, says Yeh. "A lot of education has come out of this, for ED physicians, hospitals, and the managed care industry," she says. "By making it more clear as to what is permissible and what isn't, it should make things more straightforward."
Add provision to contracts specifying payment for services required under EMTALA. "The most important thing is to put a provision at the end of the contract that says, 'Not withstanding anything else in this contract, you will pay us for services we were required to render under federal law,'" says Frew. "So far, most managed care have agreed to this provision when hospital administrators insisted on it," he reports.
The clarified definition of a MSE will provide much-needed leverage with MCOs. "It strengthens any discussions anyone might have with a payor or managed care, to assure that appropriate coverage is obtained," says Yeh.
Change definitions in the contract to match statutory definitions in federal law. Usually, contract definitions have their own made-up definitions for emergency and screening, so you need to get those changed, Frew recommends. "At the negotiating stage, it's hard for companies to say we will ignore the law and apply our own definitions, since there is always the risk that courts will later say their definitions aren't valid."
Managed care should be legally responsible for EMTALA violations, says Bedard. "If they lean on you and pressure you, they ought to be held responsible for retaliation under the law," he says.
Be aware of efforts to investigate managed care. The Office of Inspector General (OIG) is beginning to look at the practices of MCOs, says Frew. "They recognize that most of the pressure to violate EMTALA comes from managed care," he reports. "If compensation is conditional on violating EMTALA, that's Medicare fraud. It looks like OIG will step up to the plate and use its considerable fraud and abuse power to knock managed care into line."
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