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

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