Special Advisory Bulletin on Federal Anti-Dumping Law

Overview of the EMTALA

On December 7, 1998, the Office of Inspector General ("OIG") and the Health Care Financing Administration ("HCFA") of the Department of Health and Human Services issued a proposed Special Bulletin to address compliance with the Emergency Medical Treatment and Act of Labor Act ("EMTALA") for managed care enrollees. Under the EMTALA, a Medicare participating hospital must provide a medical screening examination and stabilizing medical treatment or an appropriate transfer to any person who comes seeking emergency services. A hospital may not delay the provision of an appropriate medical screening examination and stabilizing medical treatment in order to inquire about an individual's method of payment or insurance status. The EMTALA is enforced jointly by HCFA and the OIG. Sanctions that may be imposed by HCFA for violations include termination of a hospital's provider agreement and the imposition of civil money penalties against both the hospital and the physician responsible for examination, treatment, or transfer of an individual. In addition, the EMTALA provides for the exclusion of such physician if the violation is gross and flagrant or repeated.

Purpose of the Special Bulletin

The proposed Special Bulletin addresses a hospital's obligation under the EMTALA to provide emergency medical treatment to managed care enrollees. HCFA and the OIG developed the proposed Special Bulletin due to concerns that managed care enrollees may not be receiving emergency medical treatment consistent with the EMTALA because of managed care prior authorization requirements. The proposed Special Bulletin notes that some hospitals routinely seek prior authorization for emergency services from a patient's primary care physician or from the managed care plan because failure to do so may result in personal financial liability for such services by the patient. Inquiries regarding a patient's potential financial liability for emergency services may improperly or unduly influence patients to leave a hospital without receiving appropriate emergency medical treatment. The proposed Special Bulletin plainly states that such a result would be inconsistent with the goals of the EMTALA and could leave the hospital exposed to liability under the Act. The proposed Special Bulletin also makes it clear that a hospital must comply with the EMTALA anti-dumping requirements notwithstanding the terms of any managed care agreements, including prior authorization requirements.

Particular Issues Addressed by the Special Bulletin

The proposed Special Bulletin notes that some hospitals have implemented "dual staffing" arrangements which permit a managed care organization ("MCO") to station its own physicians in the hospital's emergency department, separate from the hospital's own emergency physician staff, for the purpose of screening and treating MCO patients who request emergency services. Although some dual staffing arrangements may result in completely equivalent emergency room care for managed care and non-managed care patients, it is clear that, absent such complete equivalency, HCFA and the OIG have concerns about these types of arrangements. The proposed Special Bulletin specifically solicits comments regarding the appropriateness of dual staffing arrangements and presumably, this issue will be addressed in greater detail in the final version of the Special Bulletin.

Additionally, pursuant to the Balanced Budget Act of 1997, Medicare and Medicaid managed care plans are prohibited from requiring prior authorization for emergency services, including those services needed to evaluate or stabilize an emergency medical condition. For these plans, the obligation to pay for emergency services is based on a "prudent lay person" standard, i.e., the need for emergency services should be determined from a reasonable patient's perspective at the time of the presentation of the symptoms. Consistent with the foregoing, the proposed Special Bulletin suggests that it would not be appropriate for a hospital to request, or health plan to require, prior authorization before the patient has received a medical screening examination and stabilizing medical treatment or an appropriate transfer.

Proposed "Model Practices" To Promote Compliance With EMTALA For Managed Care Enrollees.

The Special Bulletin recommends certain "model practices" for hospitals to minimize the likelihood of an EMTALA violation. It seems likely that compliance with the Model Practices may reduce the risk that a hospital would be found in violation of the Act. The Model Practices include:

• No Prior Authorization Before Screening Or Stabilization. Under the Model Practices, a hospital would be restricted from seeking prior authorization from a patient's managed care plan prior to providing a medical screening examination and stabilizing medical treatment. The Model Practices would not restrict a patient from contacting his or her health plan prior to receiving emergency medical services.
• Completion of "Financial Responsibility" or Advanced Beneficiary Notification Forms. Under the Model Practices, a hospital would be restricted from asking a patient to complete a financial responsibility form or advanced beneficiary notification form before an emergency medical screening is performed. The hospital also should not ask the patient to provide a co-payment for any services rendered.
• Qualified Medical Personnel Must Perform Medical Screening Examination. The hospital must ensure that either a physician or other qualified medical personnel are available to provide an appropriate medical screening examination to all individuals seeking emergency services. Given comments in the proposed Special Bulletin on "dual staffing" arrangements, this particular Model Practice may be expanded in the final version to address particular requirements for dual staffing arrangements.
• Dealing With Patient Inquiries About Financial Liability. Under the proposed Model Practices, patient inquiries about the obligation to pay for emergency services should be addressed by a staff member who (1) has been well trained to provide information regarding potential financial liability; and (2) is knowledgeable about the hospital's EMTALA obligations. The hospital must clearly inform the patient that it stands ready and willing to provide a medical screening examination and necessary stabilizing treatment notwithstanding the patient's ability to pay and "encourage" the patient to remain for a screening examination. Further discussion as to financial liability should be deferred until after a medical screening has been performed. A staff member with appropriate medical training also must discuss medical issues related to a "voluntary withdrawal" of any request for emergency medical screening and treatment.
• Voluntary Withdrawal. If an individual voluntarily withdraws his/her request for examination or treatment, a hospital must:

Recommended Action for Hospitals at this Time

Although in proposed form, the Special Bulletin clearly outlines the enforcement posture of both HCFA and the OIG with respect to the EMTALA for managed care enrollees. Thus, even before the final Special Bulletin is released, hospitals may wish to take one or more of the following steps to reduce the risk of a potential EMTALA violation:

Review Managed Care Agreements.

• Identify and review all managed care agreements which require prior authorization of emergency medical services.
• Consult legal counsel and managed care companies, as appropriate, regarding proper interpretation of any prior authorization requirements for emergency room services.
• Determine whether managed care companies have issued any new information regarding EMTALA compliance for managed care enrollees, and obtain copies of such information, if appropriate.
  Review Emergency Department Patient Registration Policies And Practices.
• Review policies for completion of financial responsibility forms and advanced beneficiary notices.
• Conduct an internal audit of emergency room cases to determine whether managed care enrollees are receiving emergency medical services consistent with the EMTALA and the proposed Special Bulletin.
  Review Emergency Department Staffing Arrangements.
• Review emergency department staffing policies and practices for quality and equivalency of emergency medical care to managed care enrollees. If emergency medical screening practices for managed care enrollees deviate from those practices which apply to managed care enrollees, are the practices applicable to managed care enrollees consistent with the EMTALA?
• Rigorously scrutinize any "dual staffing" arrangements at the hospital. Any dual staffing arrangements should result in emergency medical care which is equivalent for both managed care enrollees and other patients in terms of access, resources, availability, timeliness, and quality.

Additional Training

• Evaluate the need for additional training of emergency department personnel, particularly personnel responsible for answering financial liability questions, and, if appropriate, implement "in-service" training for personnel as to EMTALA requirements.
• Medical staff, nursing and other EMT personnel may require additional training as to the appropriate way to counsel patients who wish to voluntarily withdraw their request for emergency medical services.
• Policies and procedures for completion of medical records may need to be reviewed to ensure that appropriate notations are made in the medical records regarding voluntary withdrawal.