Managed care in conflict with EMTALA
Managed care organizations (MCOs) often make it difficult to comply with EMTALA regulations, says Robert Bitterman, MD, JD, director of risk management and managed care in the department of emergency medicine at Carolinas Medical Center in Charlotte, NC. "If a patient has no insurance, and it's something you can take care of at your hospital, there is not going to be a transfer issue," he explains. "It's the managed care patients that create the conflict."
Managed care and EMTALA don't mix, says Bitterman. "That's why it's so hard to convince hospitals to do what is right under the law, because they've got this managed care company telling them what to do," That's also why the fastest growing complaint under EMTALA is against hospitals who are listening to managed care companies, in violation of federal law."
MCOs bear no risk of being held accountable for EMTALA violations, says Bitterman. "If their physician came in and told the patient they should leave and go to their facility, then they'd have responsibility," he notes. "But in general, they have zero liability because they are only making decisions about payment, not treatment."
The trend of MCOs using hospitalists to provide all inpatient care for their members presents additional conflicts, says Wesley Fields, MD, FACEP, medical director of emergency services at Saddleback Memorial Medical Center in Laguna Hills, CA. "The issue is whether or not hospitalists allow emergency physicians to comply with EMTALA and rapidly evaluate and stabilize the patients in the ED," he explains.
Most ED physicians are comfortable with calling hospitalists after the patient is stabilized, but some MCOs are going further, Fields reports. "Aggressive MCOs with new hospitalist programs are refusing to authorize emergency services provided by the ED doctors, saying only the hospitalist can see the patient in the ED," he says.
These managed care policies present a significant liability risk, says Fields. "If a hospitalist doesn't come as quickly or provide as much special treatment as the ED group would have, the hospital has liability under EMTALA," he adds.
The hospital must provide a medical screening exam uniformly, but can use hospitalists instead of ED physicians to do that, as long as all patients are treated the same, says Bitterman. "But if you set up two systems, one in which hospitalists provide the screening exam, and one in which ED physicians provide the exam, and you divide patients based on their insurance, HCFA will say you are violating EMTALA," he notes.
ED physicians are also at risk if they agree to wait for a hospitalist after determining a patient has a medical emergency, says Bitterman. "If I decide a patient has an emergency condition and make them wait on the basis of their insurance, I am liable," he explains.
It's usually better to avoid specifying the time of response required for on-call consultants, says Fields. "EMTALA left the time for providers to determine, and you want to avoid heavy mandates on the backup panel, because you don't want to push them any harder than you have to," he explains. "How hard you push specialists to respond is determined case-by-case, except when the medical condition mandates a particular level of response, such as with thrombolytics in acute MI."
Although it's usually safer to avoid specifics about consultant response times in written hospital policies, managed care affects that practice. "In general, the more detail you have in writing, the easier it is for investigators to find that chart reviews reveal you're not complying with your own written regulations," says Fields. "But because managed care presents the threat of not being able to provide timely care, that forces us to be more explicit."
When MCOs insist on providing their own stabilization in the ED, you may need to have very explicit criteria about the timeliness of medical evaluations, says Fields. "Basically, what you wind up with is rules and regulations for medical staff that mandates the sicker the patient is the more rapid the response has to be," he explains.
Hospitalists should go through a separate credentialing process for ED privileges in the ED, urges Fields. "You need to assure you won't have someone coming and doing something they aren't really trained to do," he says.
Inadequately trained hospitalists can create medical liability, Fields stresses relating an incident at his facility. When a managed care patient was brought to the ED on a backboard after an auto accident, the MCO insisted no x-rays be taken until their hospitalist arrived. "When the hospitalist showed up, he didn't know how to do a trauma evaluation, and had the gall to ask me how to interpret the lateral c-spine x-ray," he says. "You can't let something like that happen more than once before you make rules for privileges of hospitalists."
Delaying the medical screening examination because of a patient's insurance status is a clear EMTALA violation, say Bitterman. "Hospitals must provide the screening exam uniformly for all patients, regardless of their insurance," he stresses. "If you delay their evaluation status on the basis on their insurance, that is a violation of the "no delay" provision of the law."
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