With pro-patient legislative climate, regulations likely to get tougher
HCFA inspectors can be subjective, experts warn
[Editor’s note: This is the second article in a two-part series on recent revisions to the Health Care Financing Administration’s (HCFA) interpretive guidelines for the Emergency Medical Treatment and Active Labor Act (EMTALA). Last month’s article looked at the tightened definition of "medical screening exam" and why triage doesn’t qualify. The EMTALA statute, regulations, and site review guidelines can be accessed at the following Web site: http://www.medlaw.com.]
One thing seems clear: The law protecting patients’ rights to emergency treatment is here to stay. Even if EMTALA were to be revised, chances are it would be made even more stringent, says Stephen Frew, JD, a Rockford, IL-based health care attorney and consultant. "In this climate of concern about patient protection, it would be almost impossible to get EMTALA amended, except to make it even tougher," he predicts. "No legislator would loosen patient protections that already exist."
HCFA’s EMTALA task force, which has contributed input on a regular basis during the two-year process of revising the guidelines, is not scheduled to meet again. "It’s not clear if they will reconstitute the task force; however, it’s anticipated that there will be some mechanisms to continue the dialogue," says Charlotte Yeh, MD, FACEP, chief of emergency medicine at New England Medical Center in Boston and a task force member. "We hope that the discussion will continue on an ongoing informal basis."
Still, the new guidelines won’t be the last chapter in the book on EMTALA. "This isn’t the end of the issue," says Frew. "My understanding is that HCFA will be sending out clarification letters defining issues such as the difference between a patient being stable, as opposed to stable for transport."
The more clarifications that are added to the site review guidelines, the more likely EMTALA will be applied uniformly, he says. "But the fact remains that just like traffic cops, HCFA inspectors can be subjective. They all have prosecutorial discretion. They may choose to nail one [institution] for an offense and let another by because they have a higher level of confidence in that institution."
Emergency department (ED) access managers need to be familiar with the actual EMTALA regulations in addition to the new guidelines, urges Yeh. "The guidelines do not change the law. They are just how HCFA will choose to interpret the statute," she says. "Ultimately, the key to compliance is really to assure that patients, whether in the ED or elsewhere, are treated in a nondiscriminatory fashion."
Experts suggest examining the following areas where the new guidelines might require a revision in policy or procedure:
1. Transfer from a hospital after admission. "The guidelines do not address the scenario of a patient being admitted to a hospital and transferred to another facility days or weeks later," notes Larry Bedard, MD, FACEP, director of emergency services at Doctor’s Medical Center’s San Pablo and Pinole (CA) campuses and immediate past president of the American College of Emergency Physicians (ACEP).
One patient who was transferred after being admitted has pressed an EMTALA investigation that will be the first to go to the Supreme Court, Bedard says. "This is an important issue," he explains. "The day the patient was transferred to a rehab hospital, she required admission to another acute care hospital. She went from acute care to extended care, [then back] to acute care, claiming the first hospital should have kept her there."
The particular case, Roberts v. Galen of Virginia, Inc., hinges on whether the violation occurred because of monetary gain, Frew says. "If they confine it to the issues of the case, it won’t affect the general climate of EMTALA. But it will be the court’s first chance to comment on the law at all, which will be interesting."
2. No discussion of finances. "To be completely safe, you can’t have any financial discussion whatsoever with a patient," says Bedard. "If an HMO patient came in and said, My HMO won’t do a back X-ray but I want one, how much will it cost me?’ you can’t tell them. The attitude that you can’t tell the patient what the cost will be or imply that they won’t have any responsibility for payment is absurd."
The policy of never discussing finances violates consumer rights, he says. "I don’t think there is any service in this society where you don’t have a right to ask for the cost," he argues. "I call this the HCFA gag rule."
3. Signage issues. The guidelines do not address what sign, if any, is permissible to post in the ED regarding patient responsibility for payment. "They can charge you with coercion if the patient leaves because you told them the bill would be expensive," Bedard says. "That could include posting a sign that says if insurance doesn’t pay, we’ll send you the bill."
More than half of the hospitals in the country have similar signs posted, he notes. "They could be interpreted as a form of coercion. If that’s the case, HCFA has an obligation to notify two-thirds of the hospitals in the country that they are in violation of the law."
4. Dual staffing. There is a trend toward MCOs placing their own physicians in a hospital’s ED but only to provide treatment for patients who are plan members.
In Denver, Cleveland, and the state of North Carolina, Kaiser Permanente has closed its own facilities and signed a contract with a non-Kaiser facility for ED physicians to selectively see the HMO’s patients, Bedard reports. "Kaiser is aggressively moving forward with this option in California," he says. "This raises a tremendous number of issues with EMTALA."
The California chapter of ACEP has requested a ruling from HCFA on the legality of this arrangement, Bedard reports. "We will be seeing this situation more and more in this managed care environment," he says. "HMOs want to put their own physicians in the ED to see their own patients. But if you try and segregate them out, we think that violates EMTALA."
5. Psychiatric patients.
"There needs to be a lot more education about psychiatric patients, because there continues to be a lot of confusion and variation in standards of practice," Yeh says. "People tend to think that a psychiatric screening exam is not required. But it’s very clear that these patients must have a full screening exam, both medical and psychiatric."
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