EMTALA Update

CHANGE OF RECOMMENDATIONS ON REPORTING

by Stephen Frew, JD of medlaw.com

The following is a question and answer from the EMTALA Q&A forum which includes a change in my recommendations on reporting denials of transfer.

I am under the impression that it is hazardous for a recieving physician to question payment methods of a patient before accepting a transfer- but my recieving physician insists that he can ask any question he wants as long as he accepts the patient. My point is that if he asks about the financial status, and then denies transfer for another reason, doesn't that place him in jeopardy of a potential violation? Are there any precedents? If the financial status is not a contributing factor to acceptance or patient care, why complicate the issue by asking?

ANSWER: There have been any number of cases where the on-call has asked about money and then turned down the patient -- to my knowledge, every single one of them that CMS became aware of was cited.

The OIG position on duty to accept on transfers is that the receiving hospital cannot delay acceptance to obtain payment information. If it is a transfer situation, the on-call is "the hospital" for enforcement purposes.

What happens in reality, however, is if they begin asking about money, they are planning on that making a difference in their response. That is no different under the law than asking about the patient's race -- they have to come in/accept, and there is no purpose in asking unless they intend to illegally base their decision on that issue.

I would tell the physician that he can ask anything he wants, but you are not permitted to answer. If he/she insists or they will turn down the transfer, ask them:

"Now this is Dr. "x" correct? How do you spell that? Now let me make absolutely sure I understand what you are saying -- you are saying that if I don't give you financial information before you accept the patient, you will not accept the patient in violation of EMTALA-- am I hearing that correctly? I just want to be absolutely sure for my report to the government." And then report it to administration for turning in an EMTALA violation.

Since September 11th, this is a new world -- in this world, the public expects physicians and hospitals to respond with commitment and "heroism" as part of the nation's security system.

If you thought it was turning into a consumer's market before, today is a REALLY intense expectation level from the market place. Many people who do not have insurance now are actually terrorist victims in the public perspective.

You can bet your last penny that when they observe that not happening, they will not only be angry, but they will consider it unpatriotic and will report it in a heart-beat or sue in two heart-beats.

Even arguments about having to see people with simple flu or skin rashes have disappeared -- the MSE is now part of our national defense.

Asking about money was stupid 60 days ago, and it is more than stupid today -- it is tantamount to a professional death wish in which the physician hopes to take the hospital down with him or her.

Now, it is not always the physician -- especially if it is the ED physician who accepts transfers for the hospital. Often it is the hospital.

Recently, a major hospital issued a memo that stated that transferring facilities had to obtain advance approval and acceptance for transfer under EMTALA, and the staff was not to accept transfers of indigent patients from other hospitals unless they already had a physician on staff.

If anyone outside the hospital got a copy of that letter, I would expect it to be reported to CMS immediately, and the hospital to fall under immediate investigation by the feds for a blatant refusal to comply with EMTALA acceptance requirements.

I have long suggested that complaints of violation be sent through the chain of command in the hospital to avoid conflicts being touched off by irate physicians. I have also taken the position that refusals of transfer are not mandatory reporting events in a strict reading of the law -- some at CMS disagree and consider them required reporting.

As of today, I am officially changing my recommendations to the position that in the changed market environment and the absolute need for hospital transfer processes to address potential mass casualties and terrorist incidents, a new policy is needed to protect hospitals and assure open access to care required by EMTALA at hospitals capable of providing care.

My position now is:

1) Hospitals seeking to transfer patients to higher levels of care in appropriate circumstances as defined by EMTALA should not be asked about means or ability to pay or hospital guarantee of payment prior to the acceptance of transfer by the intended destination hospital or responsible physician accepting or denying acceptance on behalf of the intended destination hospital.

2) If asked, do not provide the information even if the patient is fully insured.

3) In any case where a transfer is turned down after the intended receiving facility has asked about finances of the patient or any guarantee of payment by the sending facility, it should be reported as a possible EMTALA violation within 72 hours of the event to the responsible office of the Centers for Medicare and Medicaid Services (CMS) to avoid possible EMTALA liability on the part of the sending hospital for failure to report.

4) The fact that the transfer was turned down after inquiry about means or ability to pay or demand that the sending hospital guarantee the bill should be described in detail in the medical record to adequately protect the sending hospital under EMTALA transfer rules and to assure that all legal defenses and remedies are preserved in the event the resulting delay and outcome causes patient litigation against health care providers.

Stephen A. Frew JD
Frew Consulting Group, Ltd.
6072 Brynwood Drive
Rockford, IL 61114
sfrew@medlaw.com