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01/07/2004 |
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Steven R. Smith Appeared in BNA's Health Plan & Provider Report Hospitals are places where people receive care for serious ailments. Most hospitals in this country have emergency rooms or departments. The purpose of the ED is to determine, as rapidly as possible, whether a person has a condition that requires emergent treatment and to then provide that treatment. Hospitals are also businesses, which means that they must ultimately recover, through reimbursement for the care they provide, the cost of their operating expenses (and additional amounts to provide for capital expenses) if they are to remain in business and thus continue to provide the needed care to the populations they serve. Therefore, hospitals have a legitimate concern with the details of financial arrangements for payment for the care they provide to patients. The Emergency Medical Treatment and Labor Act ("EMTALA" or the "Act") was passed by Congress in 1986. The Act requires, in broad terms, that for hospitals with emergency departments, if an individual comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide an appropriate medical screening examination and, if an emergency medical condition is found to be present, must also provide necessary stabilizing treatment or for transfer of the individual as permitted by the statute.1 The Act further specifically provides that: A participating hospital may not delay provision of an appropriate medical screening examination required under subsection (a) of this section or further medical examination and treatment required under subsection (b) of this section in order to inquire about the individual's method of payment or insurance status. 2 The purpose for passage of the Act was stated by the Department of Health and Human Services in the preamble to the Final Rule on the Responsibilities of Medicare Participating Hospitals in Treating Individuals with Emergency Medical Conditions (the "Final Rule") published Sept. 9, 2003: Congress enacted these antidumping provisions in the Social Security Act because of its concern with an "increasing number of reports" that hospital emergency rooms were refusing to accept or treat individuals with emergency conditions if the individuals did not have insurance: "Managed care" is generally known as a system of care sponsored by an insurance company, state Medicaid organization or hybrid organization, that seeks to control the cost of the care provided to its members by, among other ways, controlling the utilization of that care. A prevalent feature of managed care plans is the necessity for authorization by the plan for services before those services are rendered. 4 The rationale behind this concept is that it allows the managed care plan to control which providers provide care to their members by selectively contracting with those providers based on price, quality, and other issues. It also allows the plan to determine that the services are medically necessary for the condition being treated. If authorization is not given but the care is provided anyway, then the provider will likely not be paid and the member may be responsible to the provider for the bill. 5 The tension here is obvious. EMTALA was enacted to stop the practice of patient "dumping" that occurred as a result of a patient being uninsured or otherwise unable to pay for health care services. Part of that solution was to require hospitals essentially to treat first and ask financial questions later, as demonstrated by the admonition in the Act not to delay screening or treatment to ask financial or insurance questions. 6 However, in 1986 when EMTALA was passed, managed care was in its infancy and was not a widespread practice. As managed care plans became more prevalent and gained more market share with the insured population, hospitals were subjected to increased pressure to verify eligibility and authorization to treat patients before commencing that treatment. 7 This practice also occurs in the emergency department of hospitals, with the result that hospitals call managed care plans for approval before performing medical screening examinations, before providing necessary stabilizing treatment, or otherwise deciding to transfer the patient without any treatment. 8 In part as a result of these issues, on November 10, 1999, the Health Care Financing Administration (now the Centers for Medicare & Medicaid Services, or "CMS") and the Department of Health and Human Services' Office of the Inspector General issued a joint Special Advisory Bulletin addressing EMTALA obligations (the "Bulletin"), including the impact on enrollees of managed care plans. 9 This demonstrated the increasing magnitude of the issue of how hospitals were to incorporate the provisions of the Act into actual practice while being told by managed care plans they had to call before providing any services to plan members. Indeed, the Bulletin specifically acknowledged that the "prior authorization" requirement may be placing managed care patients "at risk of being discharged or transferred without receiving a medical screening examination." 10 This is the backdrop for the Final Rule as it applies to the issue of delay in providing services and prior authorizations. The Final Rule incorporates several points from the Bulletin. Adoption of these provisions in a regulation, as opposed to a policy statement, is significant. The regulation has the force of law and is now a fact of compliance for hospitals. However strong the policy or guidance issued by an agency of government may be, it is still open to challenge. The language of the Final Rule on these issues is as follows: (i) A participating hospital may not delay providing an appropriate medical screening examination required under paragraph (a) of this section or further medical examination and treatment required under paragraph (d)(1) of this section in order to inquire about the individual's method of payment or insurance status. Observations. Several observations can be made about these provisions. First, they clearly settle the question about hospitals seeking prior authorization from an insurer for screening or stabilization services to be provided to an individual when the Act applies. Before any authorization can be sought, the hospital must have provided the screening examination and initiated appropriate stabilizing treatment. Second, physicians and other practitioners may contact a patient's personal physician for information on the patient's medical history and needs that is relevant to the screening and treatment of the patient. However, even this clinical information sharing is subject to the admonition that it may not inappropriately delay the screening and stabilization services to be provided to the patient. Third, CMS recognizes the need for hospitals to construct reasonable registration processes for individuals impacted by the Act. This may include asking whether the individual has insurance and, if so, what that insurance is, so long as doing so does not delay screening or treatment. CMS also included the requirement here that reasonable registration processes adopted by hospitals may not unduly discourage individuals from remaining for further evaluation. Fourth, it should be clear to hospitals that the screening and treatment of individuals who are subject to the Act is the dominant concern of CMS and that hospitals should not do anything that would inappropriately delay the provision of screening or treatment services. The provision of a medical screening examination or stabilizing treatment may not be delayed to inquire about insurance or method of payment. 12 Clinical discussions with the individual's personal physician regarding medical history may not inappropriately delay screening and treatment. 13 Registration processes may not delay such services. 14 Therefore, policies being crafted by hospitals on these issues need to be designed with the understanding that screening and treatment of the individual must be the preeminent concern. As noted above, hospitals are prohibited from seeking authorization for screening examinations or stabilizing treatment until the screening examination has been provided and stabilizing treatment has been initiated. Registration processes may be put in place to determine the existence of insurance, and even what that insurance is (so long as it does not delay the screening and stabilizing treatment), but it is clear that no calls can be made regarding authorization for the provision of those services until after the screening has been done and stabilizing treatment has been initiated. Requesting authorization at this point has been referred to by CMS as "concurrent authorization." 15 On the subject of concurrent authorization, the preamble to the Final Rule clearly sets forth CMS's position that, regardless of the outcome of the call for authorization of stabilizing treatment services, the hospital must continue to provide them. 16 In light of this, there would appear to be few valid reasons for a hospital to make such a call. It may be a good practice, however, to place such a call after the initiation of stabilizing treatment in order to obtain authorization for the subsequent admission of the individual after the individual has been stabilized. This would eliminate the delay in the admission process post-stabilization of the individual or, if admission is denied by the insurer, it would speed up the transfer of the stabilized individual. Either result is in the best interests of both the individual and the hospital. The tension remains between the interests of hospitals being paid for services they are required by the Act to provide to individuals and the interests of managed care plans to control the utilization and costs of such services. However, the provisions of the Final Rule provide an added measure of certainty for hospitals as they review their obligations under the Act. Regardless of whether one agrees with the position taken by CMS in the Final Rule, the result should be an increased level of understanding and compliance by hospitals. If that occurs, progress will have been made. 1 42 USC § 1395dd (a) and (b). 2 42 USC § 1395dd (h). 3 68 Fed. Reg. 53222, 53223 (quoting H.R Rept. No. 99-241, Part I, 99th Cong., 1st Sess. (1985), p. 27). 4 OIG/HCFA Special Advisory Bulletin on the Patient Dumping Statute, 64 Fed. Reg. 61353, 61356 (Nov. 10, 1999) ("Many managed care plans require their members to seek prior authorization for some medical services, including emergency services."). 5 Id. (concluding that the result of failing to obtain authorization may result in the refusal of a plan to pay and a patient being responsible for the bill). 6 42 USC § 1395dd(h). 7 Blalock, K. (R.N. and J.D.) and Wolfe, S.M. (M.D.), Questionable Hospitals, 527 Hospitals that Violated the Emergency Medical Treatment and Labor Act: A detailed Look at Patient Dumping, PUBLIC CITIZEN, July 2001 (p. 2). 8 Id. 9 64 Fed. Reg. 61353. 10 64 Fed. Reg. 61356. 11 42 CFR § 489.24 (d)(4)(i)-(iv). 12 42 CFR § 489.24 (d)(4)(i). 13 42 CFR § 489.24 (d)(4)(iii). 14 42 CFR § 489.24 (d)(4)(iv). 15 68 Fed. Reg. 53226. 16 Id. |
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Ober, Kaler, Grimes & Shriver
Maryland
Washington, D.C. Virginia |
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