August 1998
Volume 62 |
Number 8
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PRACTICE MANAGEMENT
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| Free Care: What
Does the Law Require? |
Karin Bierstein,
Practice Management Coordinator
Recently reported events at a hospital outside Los Angeles have
given rise to a lively debate about the duty of anesthesiologists
to provide labor epidurals and other services without regard to
reimbursement. To a considerable extent, any such duty is governed
by hospital bylaws and/or contracts, which are enforceable through
state law. This column will review the basic principles of state
law and bylaws requirements and then summarize the Emergency Medical
Treatment and Active Labor Act (EMTALA), the major federal law
imposing responsibilities for uncompensated care on physicians.
The discussion below intends or implies no value judgments or
opinions on ethical issues.
State Law and Hospital Bylaws Requirements
State law and hospital bylaws policies or contracts are
the major sources of a physician's duty to provide care to particular
patients.
Statutory regulation centers on emergency care and especially
on hospitals' responsibilities for delivering appropriate emergency
services. At least 20 states have their own statutes limiting
the ability of hospitals to deny emergency care, which vary widely.
Some specify that emergency care cannot be denied based on a patient's
potential inability to pay, while others merely mandate that emergency
services be provided to all who require them. Several state emergency
care statutes impose criminal liability on hospitals or medical
personnel. Most do not provide for private lawsuits.
Beyond emergency care, are physicians ever required to
treat a particular patient without regard to that patient's ability
to pay? The traditional, common-law answer is no, unless the physician
has already begun to take care of the patient. In that instance,
the physician must give the patient the opportunity to find another
doctor before withdrawing from the case.
It is not absolutely necessary that the physician examine
or see the patient in order to establish a doctor-patient relationship
for purposes of the prohibition on "abandonment." Anesthesiologists
may be required to provide on-call services as a condition of
medical staff privileges or of an exclusive contract. The hospital,
in order to participate in Medicare, Medicaid and other reimbursement
programs, must ensure that the services that it purports to offer
will be available, which is typically done through call coverage
systems.
If the hospital bylaws or a contract require an on-call
physician to accept all patients referred to that physician, courts
may find that an implicit doctor-patient relationship exists.
Thus, an anesthesiology group with an exclusive contract or any
other commitment, including one spelled out in the bylaws or in
a medical staff policy, to provide call coverage may have an obligation
to treat any patient for whom anesthesia services are requested.
Since that obligation establishes a doctor-patient relationship,
the patient may be able to recover against the physician who doesn't
complete treatment or arrange for an appropriate transfer. The
hospital may have its own remedies against the physician, again
depending on the contract or bylaws.
The Right to Receive Emergency Treatment Under Federal Law (EMTALA)
The 1986 federal statute requires hospitals to ensure
that any person who presents at an emergency department receive
a medical screening examination to determine whether the person
has an emergency medical condition or is in labor.
An "emergency medical condition" is one that manifests
itself "by acute symptoms of sufficient severity (including severe
pain) such that the absence of immediate medical attention could
reasonably be expected to result in (i) placing the health of
the individual (or, with respect to a pregnant woman, the health
of the woman or her unborn child) in serious jeopardy, (ii) serious
impairment to bodily functions or (iii) serious dysfunction of
any bodily organ or part."
Having determined that the patient has an emergency medical
condition, the hospital must provide all treatment necessary,
and within the hospital's capability, to "stabilize" the patient's
medical condition. The patient is stabilized when "no material
deterioration of the condition is likely to result from or occur
during the transfer of the individual from the facility." (Unstabilized
patients may be transferred if they so request, or if the physician
certifies that the benefits outweigh the risks of the transfer.)
EMTALA specifically states that a pregnant woman who is
having contractions is in an emergency condition where there is
inadequate time to effect a transfer before delivery, or where
a transfer may endanger the health or safety of either the woman
or the fetus. "Stabilization" occurs upon delivery.
The screening and treatment provided must be of the same
nature and quality of the services that would routinely be offered
to other patients, including those with medical insurance. EMTALA
has come to be interpreted by many courts as an anti-discrimination
statute rather than a federal malpractice law. Misdiagnosis or
medical negligence alone will not trigger liability without a
showing of an improper motive (bias based on inability to pay,
race, age, sex, occupation, inebriation or simple personal dislike)
or disparate treatment of patients with the same condition on
the part of the hospital or its agents, the physicians.
The penalty for violations can be severe. Hospitals may
be fined up to $50,000 for each EMTALA violation and/or may lose
their Medicare certification. Their accreditation by the Joint
Commission on Accreditation of Healthcare Organizations and/or
their licensure by the state may be affected. They may also find
themselves defending civil personal injury lawsuits in federal
court.
EMTALA does not create liability for failure to treat
a patient post-stabilization. Any duty to continue to provide
services would be based on common law, i.e., judge-made law protecting
a reasonable expectation that there would be a continuing relationship
with either the hospital or the physician.
What, then, does EMTALA require of anesthesiologists?
If they are on call to provide services in the emergency
room and a patient comes to the emergency room with an emergency
medical condition or in labor, the anesthesiologists should respond
to the call and treat the patient as they would treat anyone else
with the same medical needs, without basing any actions on the
patient's insurance coverage or other nonclinical status. It is
not entirely clear whether EMTALA applies once the patient has
been admitted to the hospital or maternity unit from the emergency
room. Because of additional state law and hospital bylaws requirements,
however, the conservative strategy would be to continue services
until the patient is stabilized or has delivered.
The statute allows for fines of up to $50,000 and for
exclusion from the Medicare and Medicaid programs. Unlike hospitals,
however, physicians are not subject to private malpractice lawsuits
based on EMTALA.
Putting all of the above principles together, in order
to ensure that they comply with legal requirements, anesthesiologists
should:
- provide the same quality of treatment (not necessarily the
same type of treatment) to all patients who have an "emergency
medical condition" or who are in labor without considering the
patients' financial situation or other characteristics unrelated
to their medical status;
- be familiar with provisions in their hospital's bylaws, policies
or contracts that require the anesthesiologists to provide services
to hospital patients; and
- check with their own or the hospitals' counsel, and/or with
the state medical society whether any state statutes create
a duty to treat and under what circumstances.
Department of Justice Issues Guidelines on Prosecuting Medicare
Fraud
A June 3, 1998, memorandum addressed to both criminal and civil
attorneys in the Department of Justice (DOJ) directs them to handle
False Claims Act cases against health care providers in a "responsible,"
"fair and even-handed manner." The DOJ now requires its attorneys,
before alleging any violation, to evaluate whether the provider
submitted false claims with knowledge of their falsity by following
these procedures:
- Examine the statutes, regulations and any "applicable guidance
from the program agency" (e.g., Medicare bulletins) and seek
clarification from "knowledgeable personnel within the program
agency;"
- Verify the accuracy of the data on which they are relying;
- Conduct the necessary investigative steps, which may include
subpoenaing documents and interviewing witnesses;
- Determine whether the provider or physician knew or should
have known of the rule or policy at issue;
- Evaluate whether "it is reasonable to conclude that the provider
understood the rule of policy";
- Decide if the false claims more likely result from honest
mistakes than from intentional or reckless conduct or deliberate
ignorance;
- Check whether the provider has adopted and is enforcing a
compliance plan, and consider any other steps taken to comply
with billing rules;
- Determine whether the provider previously, on its own, identified
and attempted to remedy the problem, e.g., by returning a Medicare
overpayment;
- Ask whether the provider/physician has contacted Medicare
regarding the billing rule at issue, and what kind of response
they received;
- Note whether there have been prior audits or other notice
to the provider of the same or similar billing problems; and
- Consider "any other information that bears on the provider's
state of mind in submitting the false claims."
By instructing its field prosecutors to make sure that
there is a reasonable basis to suspect fraud, the DOJ is echoing
a recent letter sent by Nancy-Ann Min DeParle, Administrator of
the Health Care Financing Administration (HCFA), to the American
Medical Association stating clearly that HCFA will not seek prosecution
of physicians who make nothing more than occasional coding or
documentation errors. It is apparent that fraudulent intent (or
recklessness) is necessary to commit a violation of the False
Claims Act. Assistant United States Attorneys and DOJ Civil Division
trial lawyers must now take into account all evidence of physicians'
attempting to bill Medicare correctly. One important way of demonstrating
the lack of fraudulent intent is to adopt and adhere to a formal
compliance program.
In September 1997, ASA prepared a manual titled "Compliance
With Medicare and Other Payor Billing Requirements." Single
copies are available to ASA members on request.
ASA Continues to Study Epidural Reimbursement by Medicaid
For more than a year, the Committee on Economics has been
working to identify what states are at the low end of Medicaid's
reimbursement scale for epidural analgesia/anesthesia and to assist
component societies in lobbying legislators for policy changes
that are appropriate and fair.
ASA has been advising state components on Medicaid reimbursement
issues regularly, but the recent incident in Los Angeles (see
President's Update, July 10, 1998) prompted ASA to step
up its efforts which will involve officers, district directors,
alternate directors, component society leaders and other ASA members
with input from staff and practice managers, according to ASA
President William D. Owens, M.D.
ASA is currently seeking data on prevailing reimbursement
rates and practices, including: 1) what Medicaid is currently
reimbursing for epidurals for vaginal and unplanned cesarean deliveries;
2) what indemnity (i.e., private) insurance and managed care organizations
are reimbursing for the same procedures; and 3) what the average
duration is for a labor epidural from the time of insertion until
anesthesia services are completed.
The principal purpose of the survey is to collect and
analyze data that will be useful when seeking regulatory and/or
legislative changes in Medicaid payment policies.
In addition, ASA will work with its state component societies
to address these concerns where significant disparities in Medicaid
reimbursement rates are affecting the availability of other medical
procedures, including but not limited to obstetrical analgesia/anesthesia.
ASA also is continuing to work with media representatives
to emphasize reimbursement inequities. We will continue to clearly
state ASA's position on ethical patient care and to provide relevant
reimbursement information and published studies on epidural anesthesia.
ASA has been very effective in persuading the media not
to place blame on physicians or hospitals, but to focus on the
inequities of the Medicaid rates as the underlying cause of the
problem.
Some states are already working for legislative changes
in their Medicaid rates. ASA members are urged to become knowledgeable
and involved in this issue as it relates to their state's Medicaid
program and to network with medical colleagues in other specialties
who have successfully made inroads with Medicaid carriers and
other third-party payers to gain more equitable and appropriate
reimbursement. Member involvement in the state component is crucial
for this concerted effort to be effective.
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