Getting aggressive with collection of ED copays? Don’t violate EMTALA
Practices might receive more scrutiny
You might assume that registrars giving emergency department (ED) patients the impression that they are required to pay money to receive treatment is a thing of the distant past, as this situation is a likely violation of the Emergency Medical Treatment and Labor Act (EMTALA) which has been in place since 1986.
However, that’s situation is what is alleged to have occurred in several Minnesota hospitals, according to a lawsuit filed by the state attorney general’s office that included allegations of aggressive collection practices in EDs. The case was settled in July 2012.1,2
The widely publicized case could mean that ED point-of-service collections will be more closely scrutinized by patients and the Centers for Medicare & Medicaid Services [CMS], warns M. Sean Fosmire, JD, a healthcare attorney with Garan Lucow Miller in Marquette, MI.
“This type of report does tend to attract a lot of attention -- not only from the news media, but also the state survey agencies which do the investigations and report back to CMS,” says Fosmire, adding that patients might be more likely to complain about similar episodes after hearing about the case.
Most attorneys recommend that no one, including patient access staff, talk with patients about any payment issue at all until the patient has been seen, the required medical screening examination (MSE) has been done, and stabilizing medical treatment has been provided, says Fosmire. “That is not something that is required by the statute,” he acknowledges. “Nothing in the statute prohibits staff from discussing payment issues.” However, Fosmire says this approach provides the best protection against any possible future claim that treatment decisions, such as whether the patient should be admitted or seen by a specialist, were influenced by the patient’s ability to pay.
“After the MSE and stabilizing treatment, there is no problem talking with the patient about payment issues,” says Fosmire.
You can’t delay MSE
There is nothing in EMTALA that says registrars can’t ask for a copay or deposit while the patient is waiting for the MSE to occur, so long as it isn’t delayed, according to Mike Williams, MPA/HSA, president of the Abaris Group, a Martinez, CA-based consulting firm specializing in hospital and emergency department process improvement.
“But most hospitals want to be squarely on the compliance side, of waiting until the patient is initially screened by the physician provider,” he says. Once the MSE occurs, Williams says that registrars can ask for a deposit at any point, even if test results haven’t yet returned that could indicate the patient has an emergency medical condition as defined by EMTALA.
Any implication that you are delaying the MSE by taking the deposit, or any indication that you might withhold or delay services, is an EMTALA violation, acknowledges Williams. “If your ED sees 45,000 to 60,000 patients a year and you have 15 to 18 registrars, how do you keep them all in line? The best approach to keep out of trouble is to use scripting,” Williams says. Registrars can say, for example, “Now that you have seen the doctor, I can take your copay to speed things up and make your exit faster. Would you like to take care of that now?”
Todd B. Taylor, MD, FACEP, a Phoenix, AZ-based consultant specializing in EMTALA compliance, says, “Everybody knows that if patients are not critically ill, they are going to wait a period of time in the ED.” Therefore, there is no reason that registrars can’t go ahead with obtaining a full registration before discharge, as long as it doesn’t delay the patient’s treatment, Taylor says.
While this registration clearly is permissible according to CMS’ own directives, in the past, some CMS regions misinterpreted the law and cited hospitals for this practice, reports Taylor. “Some hospitals are very conservative for that reason,” he says. “But if you wait until the end to collect that information, very frequently you will not ever get the patient registered.”
Don’t mistime collections
You cannot dissuade patients from completing their treatment by demanding payment, and merely asking for payment can be construed as a “demand,” Taylor emphasizes.
“If a patient leaves after being asked for money prior to completing the MSE, with all tests completed and results available, you may run into an EMTALA issue,” he explains.
While it is fine to obtain demographic information, including insurance or lack thereof, as long as it does not delay the MSE, violations have occurred when registrars tried to collect copays before the patient was fully evaluated, says Taylor. One such case involved a Florida hospital that failed to medically screen a patient with new onset of diabetes mellitus after the patient indicated he could not make a requested deposit, and instead, referred him to follow up the next day at a clinic. Upon leaving, the patient immediately presented to another hospital where he was admitted.3
There is a difference between collecting demographic information and making a request for money, says Taylor. CMS’ guidance to surveyors indicate that it is permissible to collect demographic information as long as that does not delay the patient’s medical care and evaluation, he says. However, it also states that “reasonable registration processes may not unduly discourage individuals from remaining for further evaluation.”4,5
“It is possible a demand for payment or copay could do just that,” says Taylor. “There is nothing wrong or illegal about point-of-service collections in the ED, as long as it is done at the conclusion of the visit, after discharge.”
Patients might leave
While registrars are highly unlikely to tell a patient, “You won’t be treated until you pay your bill,” it’s the perception that is the issue, says Taylor. If an uninsured patient is asked for a $500 deposit while waiting to be seen and decides to leave and go to another hospital, this situation could be considered as “dumping” under EMTALA, he explains.
“It’s perfectly legal to ask somebody for a copay, and tell them, ‘If you can’t pay, we’re going to see you anyway.’ Some hospitals do that. But the problem is that eventually, somebody is going to leave,” says Taylor.
If a patient leaves after being asked for a copay and dies of a heart attack outside the ED, “the way the media is going to portray it is, ‘For $30, they let this patient die,’ says Taylor.
Anything you do that appears to be a barrier to care could result in being an EMTALA violation, Taylor emphasizes.
“You want everybody to be seen, welcomed and get through the system,” he says. “Then, apply the appropriate responsibility at the end of the service, just like a restaurant.”
References
1. State of Minnesota v. Accretive Health Inc. (AH), 12-cv-00145, U.S. District Court for Minnesota (St. Paul).
2. 45 CFR §160.404; State of Minnesota v. Accretive Health, Complaint, 3, 19-20 (U.S. District Court of MN (Jan. 19, 2012))
3. Department of Health and Human Services, Office of Inspector General. Semiannual Report October 1, 1999-March 31, 2000.
4. 42CFR489.24(d)(4)(iv).
5. Centers for Medicare & Medicaid Services State Operations Manual. Appendix V — Interpretive Guidelines — Responsibilities of Medicare Participating Hospitals in Emergency Cases. May 13, 2004.
Sources
For more information on emergency department point-of-service collections, contact:
• M. Sean Fosmire, JD, Garan Lucow Miller, Marquette, MI. Phone: (906) 226-2524. Email: [email protected].
• Todd B. Taylor, MD, FACEP, Phoenix, AZ. Phone: (480) 731-4665. Email: [email protected].
• Mike Williams, MPA/HSA, President The Abaris Group, Martinez, CA. Phone: (925) 933-0911. Fax: (925) 946-0911. Email: [email protected].
You might assume that registrars giving emergency department (ED) patients the impression that they are required to pay money to receive treatment is a thing of the distant past, as this situation is a likely violation of the Emergency Medical Treatment and Labor Act (EMTALA) which has been in place since 1986.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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