[Federal Register Volume 64, Number 217 (Wednesday, November 10, 1999)]
[Notices]
[Pages 61353-61359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29390]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Inspector General
Health Care Financing Administration


OIG/HCFA Special Advisory Bulletin on the Patient Anti-Dumping 
Statute

AGENCY: Office of Inspector General (OIG) and Health Care Financing 
Administration (HCFA), HHS.

ACTION: Notice.

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SUMMARY: This Federal Register notice, developed jointly by the OIG and 
HCFA, sets forth the Special Advisory Bulletin addressing requirements 
of the patient anti-dumping statute and the obligations of hospitals to 
medically screen all

[[Page 61354]]

patients seeking emergency services and provide stabilizing medical 
treatment as necessary to all patients, including enrollees of managed 
care plans, whose conditions warrant it. In developing this Special 
Advisory Bulletin, our goal is to provide clear and meaningful advice 
with regard to the application of the anti-dumping provisions, and to 
ensure greater public awareness of hospitals' obligations in providing 
emergency medical services to those individuals insured by managed care 
plans.

FOR FURTHER INFORMATION CONTACT: Robin Schneider, Office of Counsel to 
the Inspector General, (202) 619-1306.

SUPPLEMENTARY INFORMATION:

Background

    In an effort to identify and eliminate fraud, waste and abuse in 
the Department's health care programs, the OIG periodically develops 
and issues Special Fraud Alerts and, with the cooperation of HCFA, 
Advisory Bulletins to alert health care providers and program 
beneficiaries about potential problems. On December 7, 1998, the OIG 
and HCFA jointly published a Federal Register notice (63 FR 67486) 
seeking input and comments from interested parties on a proposed 
bulletin designed to address the principal requirements of the patient 
anti-dumping statute--known as the Emergency Medical Treatment and 
Labor Act (EMTALA)--(section 1867 of the Social Security Act (the Act)) 
and to discuss how the requirements of that statutory provision apply 
to individuals insured by managed care plans. Section 1867 of the Act 
imposes specific obligations on Medicare-participating hospitals that 
offer emergency services with respect to individuals coming to the 
hospital and seeking treatment of possible emergency medical 
conditions. Specifically, the draft Special Advisory Bulletin sought to 
address: (1) The obligations of hospitals to provide appropriate 
medical screening examinations to all patients seeking emergency 
services and stabilizing treatment when necessary; (2) Some of the 
special concerns in the provision of emergency services to enrollees of 
managed care plans; (3) The rules governing Medicare and Medicaid 
managed care plans with respect to prior authorization requirements and 
payment for emergency services; and (4) what types of practices would 
serve to promote hospital compliance with the patient anti-dumping 
statute when managed care enrollees seek emergency services.
    The proposed Special Advisory Bulletin attempted to be consistent 
with policies set forth in the HCFA State Operations Manual on Provider 
Certification (Transmittal No. 2, May 1998) which provides guidelines 
and investigative procedures for reviewing the responsibilities of 
Medicare participating hospitals. Hospitals should also be aware that 
regulations at 42 CFR part 422 implementing section 1852(d) of the Act 
govern Medicare+Choice organizations' obligations to pay for emergency 
services without regard to prior authorization or the treating 
hospital's relationship with the plan.

Summary of Major Issues Raised

    The major issues raised by the over 150 commenters concerned dual 
staffing, prior authorization, the use of financial responsibility 
forms and advanced beneficiary notifications, and the handling of 
patient inquiries regarding the obligation to pay for emergency 
services. Additional comments were also received concerning voluntary 
withdrawal and the reporting of alleged patient dumping violations.

1. Dual Staffing

    The majority of comments expressed concern about the impact of dual 
staffing in hospital emergency departments (EDs), and many expressed 
the view that dual staffing would lead to disparate standards in the ED 
by fostering ``separate but unequal treatment.'' Possible disparate 
standards cited dealt with physician credentialing, drug formularies, 
equal access and use of ancillary services, consistency in specialty 
referrals, waiting times and quality assurance. A number of emergency 
physicians commenting on the proposed bulletin indicated that dual 
staffing would function to protect the financial interests of managed 
care organizations rather than provide the highest quality of care to 
individuals; many hospitals believed that dual staffing would add 
layers of bureaucracy to the system thereby disrupting and delaying 
patient care. Of course, there may be countervailing considerations 
relating to the benefits of flexibility and creativity in structuring 
health delivery systems, and there is a lack of data to support some 
assertions by those opposing dual staffing. For the Federal Government 
to prohibit in advance, on a national level, arrangements which might 
increase access to health care services would require some greater 
likelihood of risk or harm than we currently foresee. (In this context, 
we note that States are able to restrict or prohibit dual staffing 
arrangements within their borders.) It may or may not become evident 
that dual staffing impedes the goals of EMTALA, or that it advances 
publicly beneficial goals of managed care and other innovations in 
health care delivery, such as coordination of services and health 
promotion. If we were to declare that all dual staffing arrangements 
violate EMTALA, we might unnecessarily prevent the development of 
health care delivery practices which could improve access to health 
care.
    Thus, we have concluded that while dual staffing raises serious 
issues, it would not necessarily constitute a per se violation of the 
anti-dumping statute. However, certain practices or occurrences that 
could arise in a dually staffed emergency department or service could 
violate EMTALA. Examples of these potential violations are described 
below.

2. Prior Authorization

    While supportive of the ``no prior authorization'' best practice 
outlined in the proposed bulletin, many commenters argued for expanding 
the reach of this approach beyond the current authority of HCFA and the 
OIG as well as the patient anti-dumping statute, by making the policy 
applicable not only to hospitals but also to health plans. Several 
commenters expressed concern that hospitals are being forced to accept 
the contracts offered by managed care plans, although they realize that 
if they comply with the prior authorization requirements in the 
contract, the hospital could be in violation of the patient anti-
dumping statute. Commenters further indicated that unless prior 
authorization requirements are abandoned or prohibited altogether, huge 
bills could result for patients whose care had not been authorized in 
advance. Commenters also stated that the ``prudent layperson'' standard 
does not sufficiently protect a hospital's interest in receiving 
payment for the emergency services provided.
    We were unable to resolve many of the commenters' concerns because 
we do not have the authority under the patient anti-dumping statute to 
mandate reimbursement for emergency services or to regulate non-
Medicare and non-Medicaid managed care plans. However, we have amended 
the prior authorization section of the bulletin slightly to make it 
absolutely clear that an emergency physician is free to phone a 
physician in a managed care plan at any time for a medical consultation 
when it is in the best interest of the patient. Further, we have 
clarified that once stabilizing treatment is under way, a managed care 
plan may be contacted for payment authorization.

[[Page 61355]]

3. Use of Advance Beneficiary Notices (ABNs) or Other Financial 
Responsibility Forms

    With regard to the use of ABNs, commenters indicated that Medicare 
requires ABNs to be provided to beneficiaries if the hospital is to be 
permitted to bill the beneficiary later for a non-covered service, even 
for services provided in an emergency context. Thus, if a Medicare 
managed care patient arrived at the hospital and the ED physician was 
concerned that the plan may not cover the service, the physician must 
have the patient sign an ABN or else be precluded from billing the 
patient for the service if the plan does not pay. Several comments 
indicated that many hospitals are using ABNs for non-Medicare patients 
as well, even though these hospitals should be able to bill these 
patients for services in any case. A number of commenters opposed 
making it a ``best practice'' for hospitals not to ask patients to 
complete financial responsibility forms upon registration, indicating 
that it is common practice that standard consent forms are signed at 
the time of registration which include an agreement that the patient 
will pay for services not covered by insurance. Commenters expressed 
the view that as long as this practice does not cause delay in 
screening and stabilization, it would be very inefficient for a 
hospital to have to engage in ``split registration.''
    It continues to be our view that a hospital would violate the 
patient anti-dumping statute if it delayed a medical screening 
examination or necessary stabilizing treatment in order to prepare an 
ABN and obtain a beneficiary signature. The best practice would be for 
a hospital not to give financial responsibility forms or notices to an 
individual, or otherwise attempt to obtain the individual's agreement 
to pay for services before the individual's stabilizing treatment is 
under way. This is because the circumstances surrounding the need for 
such services, and the individual's limited information about his or 
her medical condition, may not permit an individual to make a rational, 
informed consumer decision.
    It normally is permissible to ask for general registration 
information prior to performing an appropriate medical screening 
examination. The hospital may not, however, condition such a screening 
and further treatment upon the individual's completion of a financial 
responsibility form or provision of a co-payment for any services. Such 
a practice could unduly deter the individual 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.
    With respect to the use of financial responsibility forms, we 
believe that many commenters mistakenly interpreted the proposed 
bulletin as an attempt to derail the use of reasonable hospital 
registration procedures that do not conflict with the goals of the 
Patient Anti-Dumping Statute. We did not mean to give that impression. 
We are therefore clarifying this portion of the Special Advisory 
Bulletin consistent with the specific language set forth in the HCFA 
State Operations Manual, Interpretive Guidelines of May 1998, regarding 
registration processes permitted in the ED, which typically include the 
collection of demographic information, insurance information, whom to 
contact in an emergency and other relevant information. Specifically, 
the Interpretive Guidelines indicate that a hospital ``may continue to 
follow reasonable registration processes for individuals presenting 
with an emergency medical condition.'' Reasonable registration 
processes should not unduly discourage individuals from remaining for 
further evaluation. Reasonable registration processes may include 
asking whether an individual is insured and, if so, what that insurance 
is, as long as this inquiry does not delay screening or treatment.
    We are also clarifying that, while a reasonable registration 
process may go forward prior to screening for an individual who is not 
in an acute emergency situation, it would be impermissible for a 
hospital to condition a screening examination or the commencement of 
necessary stabilizing treatment on completion of a financial 
responsibility form.

4. Inquiries Concerning Financial Liability for Emergency Services by 
the Individual

    With regard to a hospital's handling of patient inquiries regarding 
the patient's obligation to pay for emergency services, we recommended 
in the proposed bulletin that such questions be answered by qualified 
personnel. We also recommended that hospital staff encourage a patient 
who believes that he or she may have an emergency medical condition to 
defer any further discussions of financial responsibility until after 
the provision of an appropriate medical screening examination and the 
provision of stabilizing treatment if the patient's condition warrants 
it. Many commenters disagreed with this recommendation, indicating that 
such a deferral may have the opposite of the intended result, since 
patients who are unable to determine their potential financial 
liability may be discouraged from staying at the hospital to receive an 
examination or treatment. As an alternative, commenters recommended 
that hospital staff be permitted to respond to patient inquiries with 
specific financial information so long as the hospital continues to 
offer, and encourages the patient to stay for, a medical screening 
examination. In addition, commenters were concerned that the absence of 
full and frank disclosure between physicians and patients regarding 
treatment options, insurance coverage and follow-up treatment would 
inhibit the examination and treatment process. These commenters 
recommended allowing conversations about financial liability issues to 
take place between hospital staff and patients so long as such 
discussions do not delay screening and treatment.
    We have not substantially revised this section. We believe that it 
already makes clear that any inquiry about financial liability should 
be answered as fully as possible by a qualified individual. 
Alternatives suggested by the commenters would be acceptable if such 
alternatives did not conflict with a minimum effort to defer 
discussions about financial liability issues until after the provision 
of screening and the commencement of stabilizing treatment. This 
section does not suggest that a patient is not entitled to full 
disclosure, only that the hospital should always convey to the patient 
that screening and stabilization are its priorities regardless of the 
individual's insurance coverage or ability to pay and that the hospital 
should discuss, to the extent possible, the medical risks of leaving 
without a medical screening exam and/or stabilizing treatment.

5. Voluntary Withdrawal

    Commenters also raised concerns about the hospital's obligation in 
the event of voluntary withdrawal by an individual, and the proposed 
bulletin's suggestion that a number of procedures be followed and 
documented when a patient elects to withdraw his or her request for 
treatment. Commenters believed that the proposed procedures do not make 
allowance for those times when a hospital is not aware of the 
individual's departure until after he or she has left the hospital. 
Commenters recommended that the steps set forth in the draft bulletin 
should apply only when the hospital knows of the withdrawal, that is, 
when possible, and that when a person leaves without

[[Page 61356]]

telling hospital staff, a hospital be required to document the fact 
that a patient simply left without notice and retain the log that shows 
that the person had been there and what time the hospital discovered 
that the patient had left. We have revised this section to some extent. 
However, it is our view that hospitals should be very concerned about 
patients leaving without being screened. Since every patient who 
presents seeking emergency services is entitled to a screening 
examination, a hospital could violate the patient anti-dumping statute 
if it routinely keeps patients waiting so long that they leave without 
being seen, particularly if the hospital does not attempt to determine 
and document why individual patients are leaving, and reiterate to them 
that the hospital is prepared to provide a medical screening if they 
stay.
    In accordance with our assessment of the comments and issues 
raised, set forth below is the revised OIG/HCFA Special Advisory 
Bulletin addressing the patient dumping statute.

Obligations of Hospitals To Render Emergency Care to Enrollees of 
Managed Care Plans

What are the Obligations of Medicare-Participating Hospitals That 
Offer Emergency Services to Individuals Seeking Such Services?

     The anti-dumping statute (section 1867 of the Social 
Security Act; 42 U.S.C. 1395dd) sets forth the federally-mandated 
responsibilities of Medicare-participating hospitals to individuals 
with potential emergency medical conditions.
     Under the anti-dumping statute, a hospital must provide to 
any person who comes seeking emergency services an appropriate medical 
screening examination sufficient to determine whether he or she has an 
emergency medical condition, as defined by statute. When medically 
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 medical condition of the 
individual, within the capabilities of the staff and facilities 
available at the hospital, prior to discharge or transfer; or
--If the patient's medical condition cannot be stabilized before a 
transfer requested by the patient (or responsible medical personnel 
determine that the medical benefits of a transfer outweigh the 
risks), the hospital is required to 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.
     Regulations implementing these statutory obligations are 
found at 42 CFR part 489. The anti-dumping statute is enforced jointly 
by the Health Care Financing Administration (HCFA) and the Office of 
Inspector General (OIG) of the U.S. Department of Health and Human 
Services (HHS).
     Sanctions that may be imposed by HHS for violations of the 
anti-dumping statute include the termination of the hospital's provider 
agreement, and the imposition of civil money penalties against both the 
hospital and the physician (including on-call physicians) responsible 
for examination, treatment, or transfer of an individual. In addition, 
the anti-dumping statute provides for the exclusion of such physician 
if the violation is gross and flagrant or repeated.

Why is there a Special Concern About the Provision of Emergency 
Services to Enrollees of Managed Care Plans?

    Many managed care plans require their members to seek prior 
authorization for some medical services, including emergency services. 
(As explained below, a Medicare or Medicaid contracting Managed Care 
Organization is prohibited from requiring its members to seek prior 
authorization for emergency medical services.) However, as noted above, 
the anti-dumping statute 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 our 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.
    A reasonable argument can be made that patients (other than those 
arriving in dire condition) should be informed when they request 
emergency services of their potential financial liability for services. 
Some would go further and argue that the hospital itself should seek 
prior approval from the patient's health plan for emergency services to 
preserve the patient's right to seek coverage for such services. 
However, our concern is that such an inquiry may improperly or unduly 
influence patients to leave the hospital without receiving an 
appropriate medical screening examination. This result would be 
inconsistent with the goals of the anti-dumping statute and could leave 
the hospital exposed to liability under the statute.
    Investigations of allegations of the anti-dumping statute 
violations across the country have persuaded the OIG and HCFA 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.'' Hospitals 
sometimes are caught between the legal obligations imposed under the 
anti-dumping statute and the terms of agreements which they have with 
managed care plans. For example, some managed care organizations, as a 
condition of contracting with hospitals to provide services to their 
enrollees, have attempted to require such hospitals to obtain prior 
authorization from the plan before screening or treating an enrollee in 
order to be eligible for reimbursement for services provided.
    The OIG's and HCFA's view of the legal requirements of the anti-
dumping statute in this situation is as follows. Notwithstanding the 
terms of any managed care agreements between plans and hospitals, the 
anti-dumping statute continues to govern the obligations of hospitals 
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 anti-
dumping statute obligations. Once a managed care enrollee comes to a 
hospital that offers emergency services, the hospital must provide the 
services required under the anti-dumping statute without regard for the 
patient's insurance status or any prior authorization requirement of 
such insurance.1
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    \1\ Separate and apart from the anti-dumping statute, in 
accordance with sections 1857(g), 1876(i)(6), 1903(m)(5) and 1932(e) 
of the Social Security Act, the OIG (acting on behalf of the 
Secretary) has the authority to impose intermediate sanctions 
against Medicare and Medicaid contracting managed care plans that 
fail to provide medically necessary services, including emergency 
services, to enrollees where the failure adversely affects (or has a 
substantial likelihood of adversely affecting) the enrollee. 
Medicare and Medicaid managed care plans that fail to comply with 
the above provision are subject to civil money penalties of up to 
$25,000 for each denial of medically necessary services.

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[[Page 61357]]

What About Arrangements Between Hospitals and Managed Care Plans 
for ``Dual Staffing'' of Emergency Departments?

    Some managed care organizations (MCOs) and hospitals have entered 
into, or are considering entering into, arrangements whereby the 
hospital permits the 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. This kind of arrangement 
is known as ``dual staffing.''
    Such arrangements can exist only where they do not violate current 
law. Regardless of any contractual arrangement a hospital enters into 
to staff its emergency department, the hospital remains responsible 
under EMTALA to provide an appropriate medical screening examination to 
determine whether or not an emergency medical condition (EMC) exists. 
If an EMC exists, EMTALA further provides that the hospital must treat 
and stabilize the medical condition, unless the patient is transferred 
in accordance with the specific requirements of the statute.
    Also, section 1867(h) of the Act provides that a participating 
hospital, in providing emergency medical care, ``may not delay 
provision of an appropriate medical screening examination * * * or 
further medical examination and treatment * * * in order to inquire 
about the individual's method of payment or insurance status.'' A dual 
staffing system, based on method of payment or insurance status, which 
creates delays in screening or stabilization violates this prohibition. 
Also, the hospital remains responsible under the Medicare Conditions of 
Participation as well as any other relevant patient protections and 
quality safeguards. Further, the hospital is bound by provisions that 
protect whistle blowers who report violations of EMTALA in dual 
staffing situations.
    Different points of view on dual staffing exist in the health care 
community. It is believed by some that dual staffing in emergency 
departments can facilitate the expeditious provision of services to MCO 
patients by physicians and other practitioners in their own health 
plans. MCO ability to care for their patients after stabilization, or 
after the absence of an EMC is determined, might be enhanced by dual 
staffing. However, some hospitals and emergency physicians have asked 
us to disallow dual staffing out of concern for logistical difficulties 
and the perception that separate cannot be equal in a bifurcated 
emergency department.
    If a hospital constructs two equally good emergency service 
``tracks,'' each adequately staffed and each with equally good access 
to all of the medical capabilities of the hospital, such that both MCO 
and non-MCO patients receive equal access to screening and stabilizing 
medical treatment, then such an arrangement would seem to not violate 
the requirements of the anti-dumping statute.
    Absent such equivalency, implementation of dual staffing raises 
concerns under EMTALA. The following are potential violations:
     Where the emergency department directs a hospital-owned 
and operated ambulance differently in field care or facility 
destination depending on which members of a dual staff (that is, either 
MCO or non-MCO physicians or practitioners) are either on the radio to 
emergency medical services (EMS) or are expected to see the patient.
     If the emergency department alert status affecting 
acceptance of EMS cases differs depending on which ``side'' (MCO or 
non-MCO) is expected to see the patient.
     If either the MCO or non-MCO track is understaffed or 
simply overcrowded, and a patient in a particular track is subjected to 
a delay in screening and stabilizing treatment, even though a physician 
in the alternative track was available to see the individual. Where 
there is no emergency department policy or procedure, or custom or 
practice, which requires cross-over coverage between the dual staffs as 
required for patient care. (Delays in screening or stabilization of 
patients on one track but not the other are delays in screening or 
stabilization based on the insurance status of the individual and thus 
represent potential violations of EMTALA.)
     If the hospital's emergency department quality oversight 
plan differs between the two ``sides'' (MCO and non-MCO) of the dually 
staffed ED.
     Where the protocols for transfer of unstable patients 
differ other than administratively, for example, (1) if the substance 
of stability determination criteria between the two staffs are 
different, or (2) when patients are unstable and are transferred 
routinely to different facilities that are not equivalent to each other 
in level of care or distance, and their destinations depend on their 
insurance status.
    While we recognize that dual staffing will add to a hospital's 
burden to assure that it is not violating EMTALA, we do not believe the 
EMTALA statute makes dual staffing illegal per se. We expect that 
practical experience with dually staffed emergency departments will 
reveal whether or not they can be maintained without violating EMTALA.

What Are the Rules Governing Medicare and Medicaid Managed Care 
Plans With Respect to Prior Authorization Requirements and Payment 
for Emergency Services?

    There are special requirements for managed care plans that contract 
with Medicare and Medicaid to provide services to beneficiaries of 
those programs. Congress has specified that Medicare and Medicaid 
managed care plans may not require prior authorization for emergency 
services, and must pay for such services, without regard to whether the 
hospital providing such services has a contractual relationship with 
the plan. Under statutory amendments recently enacted in the Balanced 
Budget Act (BBA) of 1997 (Public Law 105-33) 2, 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 obligation to pay 
for emergency services under Medicare managed care contracts is based 
on a ``prudent layperson'' standard, which means that the need for 
emergency services should be determined from a reasonable patient's 
perspective at the time of presentation of the symptoms.3
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    \2\ See section 4001 of the BBA, which created section 1852(d) 
of the Act. Section 1852(d) covers emergency services and prior 
authorization for Medicare enrollees. Also, section 4704(a) of the 
BBA created section 1932(b) of the Act, which contains Medicaid 
provisions covering emergency services and prior authorization.
    \3\ With respect to Medicare, prior authorization requirements 
for Medicare MCO plans were already explicitly prohibited by 
regulations before the passage of the BBA for emergency services 
provided outside an HMO or competitive medical plan (42 CFR 
417.414(c)(1)), and by implication for services provided within such 
a plan. Similarly, while the BBA clarified and codified the 
``prudent layperson'' standard, a variation of this standard has 
always been part of the Medicare policy for managed care plans. Even 
prior to the BBA, Medicare and Medicaid managed care plans were 
required to reimburse for emergency services provided other than 
through the organization. See section 1876(c)(4)(B), 42 CFR 
417.414(c)(1) for Medicare and section 1903(m)(2)(A)(vii), 42 CFR 
434.30(b)(2) for Medicaid.

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[[Page 61358]]

What Practices Will Promote Compliance With the Anti-Dumping 
Statute by Hospitals When Managed Care Enrollees Seek Emergency 
Services?

    The OIG and HCFA are 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 
unduly influence patients to leave the emergency department without 
receiving an appropriate medical screening examination or any necessary 
stabilizing treatment. 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 and the medical risks 
of leaving, a discussion about insurance, ability to pay and seeking 
prior authorization may impede a hospital's compliance with its 
obligations under the anti-dumping statute. Discussions initiated by a 
hospital staff member with a patient regarding potential prior 
authorization requirements and their financial consequences that have 
the effect of delaying a medical screening are per se violations of the 
anti-dumping statute. 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 receive a medical screening examination and stabilizing 
medical treatment under the anti-dumping statute regardless of a 
hospital's contract with a health plan that requires prior 
authorization. Accordingly, the OIG and HCFA suggest the following 
practices to minimize the likelihood that a hospital will violate the 
statute:
     No Prior Authorization Before Screening or Commencing 
Stabilizing Treatment
    It is not appropriate for a hospital to seek, or direct a patient 
to seek, authorization to provide screening or stabilizing services to 
an individual from the individual's health plan or insurance company 
until after the hospital has provided (1) an appropriate medical 
screening examination to determine the presence or absence of an 
emergency medical condition, and (2) any further medical examination 
and treatment necessary to commence stabilization of an emergency 
medical condition. The hospital may seek authorization for payment for 
all services after providing a medical screening examination and once 
necessary stabilizing treatment is underway. (We recognize that this 
guidance differs in part from that provided in the HCFA State 
Operations Manual on Provider Certification (Transmittal No. 2, May 
1988, Interpretive Guidelines--Responsibilities of Medicare 
Participating Hospitals in Emergency Cases, Data Tag No. A406, p. V-
20), which states that ``it is not appropriate for a hospital to 
request or a health plan to require prior authorization before a 
patient has received a medical screening exam to determine the presence 
or absence of an emergency medical condition or until an emergency 
medical condition has been stabilized.'' We will revise the State 
Operations Manual to ensure that it conforms to the guidance provided 
in this bulletin) We wish to emphasize that an emergency physician is 
not precluded from contacting the patient's personal physician at any 
time to seek advice regarding the patient's medical history and needs 
that may be relevant to the medical screening and treatment of the 
patient, as long as this consultation does not inappropriately delay 
such screening and stabilization.\4\
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    \4\ If, when contacted, a managed care physician requests that 
the patient be transferred, the hospital must still conclude the 
medical screening examination and provide any treatment necessary to 
stabilize the patient prior to transfer, or in the case of an 
unstable patient, provide an appropriate transfer. A hospital may 
only transfer an unstable patient at the request of the managed care 
physician when either a physician at the hospital certifies that the 
medical benefits of transfer outweigh the increased risk, or when 
the patient requests the transfer in writing after being informed of 
the hospital's obligations and the risks of transfer.
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     Use of Advance Beneficiary Notices and other Financial 
Responsibility Forms
    A hospital would violate the patient anti-dumping statute if it 
delayed a medical screening examination or necessary stabilizing 
treatment in order to prepare an ABN and obtain a beneficiary 
signature. The best practice would be for a hospital not to give 
financial responsibility forms or notices to an individual, or 
otherwise attempt to obtain the individual's agreement to pay for 
services before the individual is stabilized. This is because the 
circumstances surrounding the need for such services, and the 
individual's limited information about his or her medical condition, 
may not permit an individual to make a rational, informed consumer 
decision. It normally is permissible to ask for general registration 
information prior to performing an appropriate medical screening 
examination. The hospital may not, however, condition such a screening 
and further treatment upon the individual's completion of a financial 
responsibility form or provision of a co-payment for any services. Such 
a practice could unduly deter the individual 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. In accordance with the HCFA State 
Operations Manual, Interpretative Guidelines, V-27 (May 1998), a 
hospital may continue to follow reasonable registration processes for 
individuals presenting for evaluation and treatment of a medical 
condition. Reasonable registration processes may include asking whether 
an individual is insured and, if so, what that insurance is, as long as 
this inquiry does not delay screening or treatment. However, reasonable 
registration processes should not unduly discourage patients from 
remaining for further evaluation.
     Qualified Medical Personnel Must Perform Medical Screening 
Examinations and Physicians Must Authorize Transfers
    A hospital should ensure that either a physician or other qualified 
medical personnel (that is, 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. If 
it is determined that the individual has an emergency medical condition 
and that the individual requires a transfer, only a physician (or, if a 
physician is not physically present in the emergency department at the 
time, a qualified medical person in consultation with a physician in 
accordance with regulations at 42 CFR 489.24(d)(1)(ii)(C)) may 
authorize such a transfer.
     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

[[Page 61359]]

hospital's anti-dumping statute obligations and should 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 any necessary stabilizing treatment. Staff should also 
encourage the patient to defer further discussion of financial 
responsibility issues, if possible, 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 should 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, and if the 
hospital is aware that the individual intends to leave prior to the 
screening examination, a hospital should take the following steps: (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; (2) Inform 
the individual of the benefits of such examination and treatment, and 
of the risks 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 risks discussed and of 
the examination, treatment, or both, if applicable, that was refused. 
If an individual leaves without notifying hospital personnel, the 
hospital should, at a minimum, document the fact that the person had 
been there, what time the hospital discovered that the patient had 
left, and should retain all triage notes and additional records, if 
any. However, the burden rests with the hospital to show that it has 
taken appropriate steps to discourage an individual from leaving the 
hospital without evaluation.

    Dated: November 4, 1999.
June Gibbs Brown,
Inspector General, Office of Inspector General.

    Dated: November 3, 1999.
Michael M. Hash,
Deputy Administrator, Health Care Financing Administration.
[FR Doc. 99-29390 Filed 11-9-99; 8:45 am]
BILLING CODE 4150-04-P