The Office of the Inspector General of the Department of Health and Human Services and the Health Care Financing Administration are seeking public comments (until January 6, 1999) on an interpretation of the Emergency Medical Treatment and Active Labor Act which will prevent HMO’s from requiring prior approval for emergency services. FEDERAL REGISTER, December 7, 1998 Pages 67486 - 67489.

   A Special Advisory Bulletin is being developed by the U.S. Department of Health and Human Services Office of the Inspector General (OIG) and the Health Care Financing Administration (HCFA) to define the requirements of the Emergency Medical Treatment and Active Labor Act (EMTALA), the so-called "patient anti-dumping statute."

   Court decisions we have covered in this newsletter have interpreted the EMTALA to apply to nursing assessment and nurses’ triage decisions in the emergency room.

   The Special Advisory Bulletin will define how the EMTALA applies to individuals insured by managed care plans that ostensibly require prior authorization for emergency services.

   HCFA says its policy is that the EMTALA obligates hospitals to screen all patients seeking emergency services and provide stabilizing medical treatment to enrollees of managed care plans if their condition warrants it, without any further qualification.

   The OIG and HCFA will accept public comments on the draft of the proposed advisory bulletin until January 6, 1999 before issuing an advisory bulletin in final form.

   HCFA included in its recent announcement a basic background review of the EMTALA:

   The EMTALA imposes specific obligations on Medicare-participating hospitals that offer emergency services.

   A hospital must provide any person who comes in seeking emergency services an appropriate medical screening examination sufficient to determine whether the person has an emergency medical condition. The EMTALA also says that, when appropriate, ancillary services routinely available at the hospital must be provided as part of the medical screening examination.

  If the person is determined to have an emergency medical condition, the hospital is required to stabilize the person’s medical condition, within the capability of the staff and treatment resources available at the hospital, prior to discharge or transfer.

   If the patient’s medical condition cannot be stabilized before a transfer requested by the patient (or determined to be in the patient’s best interests by the responsible medical personnel), the hospital’s medical staff must follow very specific statutory requirements designed to facilitate a safe transfer to another facility.

   A hospital may not delay the provision of an appropriate medical screening examination or further medical examination and stabilizing medical treatment in order to inquire about the individual’s method of payment or insurance status.

   Sanctions that may be imposed by HCFA for violations of the EMTALA include the termination of the hospital’s Medicare and Medicaid provider agreements, and civil money penalties against both the hospital and the physician responsible for examination, treatment, or transfer of an individual.

   HCFA Has Special Concerns About the Provision of Emergency Services to Enrollees of Managed Care Plans.

   According to HCFA, many managed care plans require their members to seek prior authorization for some medical services, including emergency services.

   However, the EMTALA prohibits a hospital’s inquiry about a patient’s method of payment or insurance status, or use of such information, from delaying a screening examination or stabilizing medical treatment.

   It has come to HCFA’s attention that some hospitals routinely seek prior authorization from a patient’s primary care physician or from the plan when a managed care patient requests emergency services, since the failure to obtain authorization may result in the plan refusing to pay for the emergency services. In such circumstances, the patient may be personally liable for the costs.

   HCFA’s concern is that such an inquiry may improperly or unduly influence patients to leave the hospital without receiving an appropriate medical screening examination.

   HCFA believes that managed care patients may be at risk of being discharged or transferred without receiving a medical screening examination, largely because of the problems inherent in seeking prior authorization.

   HCFA’s view of the legal requirements of the EMTALA is as follows:

   Notwithstanding the terms of any managed care agreement between a plan and a hospital, the EMTALA continues to govern the obligation of the hospital to screen and provide stabilizing medical treatment to individuals who come to the hospital seeking emergency services, regardless of the individual’s ability to pay.

   While managed care plans have a financial interest in controlling the kinds of services for which they will pay, and while they may have a legitimate interest in deterring their enrollees from over-utilizing emergency services, no contract between a hospital and a managed care plan can excuse the hospital from its EMTALA obligations.

   Once a managed care enrollee comes to a hospital that offers emergency services, the hospital must provide the services required under the EMTALA without regard for the patient’s insurance status or any prior authorization requirement of such insurance.

  Medicare and Medicaid managed care plans are prohibited from requiring prior authorization for emergency services, including those that are needed to evaluate or stabilize an emergency medical condition. Moreover, Medicare and Medicaid managed care plans are required to pay for emergency services provided to their enrollees.

   The OIG and HCFA are also concerned that discussion by hospital personnel with a patient regarding the possible need for prior authorization, or his or her potential financial liability for medical services provided by a hospital that offers emergency services, could influence patients to leave the emergency department without receiving an appropriate medical screening examination. Without also informing the patient of his or her rights to a medical screening examination and to stabilizing medical treatment if the patient’s condition warrants it, a discussion about insurance, ability to pay and seeking prior authorization may impede a hospital’s compliance with the EMTALA.

   Discussions between a hospital staff member and a patient regarding potential prior authorization requirements and their financial consequences that have the effect of delaying a medical screening are violations of the EMTALA, HCFA says.

   Moreover, the OIG and HCFA believe that in the absence of an initial screening, the decision of a managed care plan regarding the need for treatment is likely to be ill-informed.

   Patients are entitled to a medical screening examination and stabilizing medical treatment under the EMTALA regardless of a hospital’s contract with a health plan that requires prior authorization.

   HCFA Says The Following Practices Will Promote Compliance With The EMTALA When Managed Care Enrollees Seek Emergency Services:

   No Prior Authorization Before Screening or Stabilization.

   It is not appropriate for a hospital to request or a health plan to require prior authorization before the patient has received a medical screening examination to determine the presence or absence of an emergency medical condition or before the patient’s emergency medical condition is stabilized.

   No Financial Responsibility or Advanced Beneficiary Notification Forms. Prior to performing an appropriate medical screening examination, the hospital should not ask a patient to complete a financial responsibility form or an advanced beneficiary notification form, and should not ask the patient to provide a co-payment for any services rendered.

   Such a practice could deter the patient from remaining at the hospital to receive care to which he or she is entitled and which the hospital is obligated to provide regardless of ability to pay, and could cause unnecessary delay.

   Qualified Medical Personnel Must Perform Medical Screening Examination.

   A hospital should ensure that either a physician or other qualified medical personnel (i.e., hospital staff approved by the hospital’s governing body to perform certain medical functions) provides an appropriate medical screening examination to all individuals seeking emergency services.

   Depending upon the individual’s presenting symptoms, this screening examination may range from a relatively simple examination to a complex one which requires substantial use of ancillary services available at the hospital and on-call physicians.

   When a Patient Inquires About Financial Liability for Emergency Services.

   If a patient inquires about his or her obligation to pay for emergency services, such an inquiry should be answered by a staff member who has been well trained to provide information regarding potential financial liability.

   This staff member also should be knowledgeable about the hospital’s EMTALA obligations and must clearly inform the patient that, notwithstanding the patient’s ability to pay, the hospital stands ready and willing to provide a medical screening examination and stabilizing treatment, if necessary.

   Hospital staff should encourage any patient who believes that he or she may have an emergency medical condition to remain for the medical screening examination and to defer further discussion of financial responsibility issues until after the medical screening has been performed.

   If the patient chooses to withdraw his or her request for examination or treatment, a staff member with appropriate medical training must discuss the medical issues related to a "voluntary withdrawal."

   Voluntary Withdrawal.

   If an individual chooses to withdraw his or her request for examination or treatment at the presenting hospital, a hospital must perform the following:

   (1) Offer the individual further medical examination and treatment within the staff and facilities available at the hospital as may be required to identify and stabilize an emergency medical condition; and

   (2) Inform the individual of the risks and benefits of such examination and treatment, and of the risks and benefits of withdrawal prior to receiving such examination and treatment; and

   (3) Take all reasonable steps to secure the individual’s written informed consent to refuse such examination and treatment.

   The medical record should contain a description of the examination, treatment, or both, if applicable, that was refused.

   According to HCFA, in the event that an individual, e.g., nurse, doctor, other emergency room staff member or patient,  believes that a hospital may have violated the EMTALA, that individual should report the alleged violation to the HCFA office in the region in which the hospital is located.

Pages 67486 - 67489.