EMTALA

Summary of the Special Advisory Bulletin on EMTALA

by Ralph L. Glover II, JD LLM

On Wednesday, November 10, 1999, the Office of Inspector General (OIG) and the Health Care Financing Administration (HCFA), "the agencies," co-released the final revised Special Advisory Bulletin on the Patient Anti-Dumping Statute (EMTALA). The proposed Special Advisory Bulletin was published December 8, 1998. The agencies received over 150 comments on the proposed Special Advisory Bulletin and made a few modifications and clarifications in the final document.

The following is a summary of the best practices, recommended by the agencies, for hospitals to observe in an effort to avoid violating the patient anti-dumping statute (EMTALA).

1. No prior authorization before screening or stabilization. It is inappropriate for hospitals to request payor authorization prior to providing an individual with an appropriate medical screening and subsequent stabilizing treatment if the presence of an emergency medical condition is detected.

2. No financial responsibility or advanced beneficiary notification forms. The hospital should not request that a patient complete a financial responsibility form or an advanced beneficiary notification form prior to providing a screening examination. Reasonable registration may occur, however, the hospital may not condition the provision of screening and treatment on the patient's completion of registration and financial responsibility forms. Reasonable registration may include asking whether the patient is insured and the identity of the payor, as long as the inquiry does not delay the provision of screening or treatment.

3. Qualified medical personnel must perform medical screening examinations. The hospital should ensure that either a physician or other qualified medical personnel conduct the medical screening examination. The medical personnel should have been properly credentialed and have appropriate education and experience to perform the examinations. If the patient has an emergency medical condition and that patient requires a transfer to another hospital, only a physician, or if a physician is absent, a qualified medical practitioner in consultation with a physician, may authorize such a transfer.

4. What to do when a patient inquires about financial liability for emergency services. A hospital staff member 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 a patient's financial responsibility until after the medical screening has been performed. The staff member should be well trained to provide information regarding the patient's potential liability and should be knowledgeable about the anti-dumping statute obligations of the hospital.

5. Voluntary withdrawal. If the patient decides to forego a medical screening examination, the hospital must perform the following:
   1. Offer the individual a medical screening examination and treatment, within the purviews of the statute, to identify and stabilize an emergency medical condition if one exists;
   2. Inform the individual of potential risks and benefits of a screening examination and treatment, and the potential risks and benefits of withdrawal prior to receiving a screening examination and treatment;
   3. Take all reasonable steps to get the individual's informed consent to refuse a screening examination and treatment. The individual's withdrawal should be well documented.

Other Issues Addressed in the Special Advisory Bulletin

Patients Waiting in the ED

Other than the recommended best practices, there were a couple of other notable comments and clarifications made by the agencies in the final bulletin. The first comment involves making patients wait for emergency services. The agencies noted that because every individual that presents to a hospital's emergency department is entitled to a screening exam, a hospital could violate the statute if it routinely keeps patients waiting so long that they leave without being seen. This example is more likely to be considered patient dumping if the hospital does nothing to correct the problem and fails to explain its obligations under EMTALA to patients if they stay.

Dual Staffing

Another issue discussed by the agencies is dual staffing. Dual staffing is an arrangement whereby a hospital agrees to allow a managed care organization to staff its own emergency physicians in the hospital's emergency department separate from the hospital's own emergency physician staff. This arrangement creates two tracks of emergency care, whereby the MCO screens and treats its own enrollees.

The agencies agree that dual staffing does not create patient dumping issues based on the nature of the arrangement. They do stress that the hospital must create the two emergency service tracks so that they are adequately staffed, that they provide equal access to all of the hospital's ancillary services and that both MCO and non-MCO patients receive equal access to screening and treatment. Dual staffing can create raise serious EMTALA concerns, in addition to patient care issues, because the hospital must ensure that both MCO and non-MCO patients receive an equal level of care.

Advance Beneficiary Notices (ABNs)

The final significant issue discussed in the bulletin is the signing of Advance Beneficiary Notices (ABNs). While the agencies agree that it is still recommended that hospitals not request that a beneficiary sign an advance beneficiary notice prior to the provision of screening and treatment, it may be permissible in some cases. Twice within the bulletin, the agencies note that while the hospital may conduct reasonable registration prior to screening, it would be impermissible for a hospital to condition a screening examination or the commencement of necessary stabilizing treatment on the completion of an financial responsibility form (ABN). Situations where it may be appropriate for a patient to complete an ABN are for those patients that present to the emergency department with truly non-emergent conditions, as long as the provision of treatment is not conditioned on the completion of the ABN. For patients with acute emergency conditions, the situation usually would not warrant the completion of an ABN due to the patient's need for immediate attention or the patient's inability to understand or complete the form because of trauma, unconsciousness, etc.

Conclusion

We can look forward to several more changes to EMTALA over the next couple of years. Two key issues the agencies intend on addressing are the Lopez-Soto case and the application of EMTALA to outpatient hospital based facilities.

Ralph L. Glover II, JD LLM, is an attorney with Chuhak & Tecson, P.C. located in Chicago, IL. His practice focuses on provider regulation, reimbursement, licensure, and certification, as well as fraud, abuse, and Stark and EMTALA compliance. For further information, please contact him at (312) 855-4626 or rglover@chuhak.com