[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