Enforcement of "antidumping" laws is on the increase - hospital emergency service - column

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State and federal laws and regulations are placing an increased emphasis on the provision of emergency health services. This article discusses "antidumping" provisions of these laws. "Health Law" is a regular feature of Physician Executive contributed by the law firm of Epstein Becker and Green, P.C. Douglas A. Hastings, Esq., a partner in the firm's Washington, D.C., offices, serves as column editor.

Hospitals with emergency departments, as wen as physicians and other personnel who service emergency departments, should pay close attention to federal and state laws governing the provision of emergency services. Both federal and many state laws have been amended in recent years to set forth affirmative obligations of hospitals that offer emergency services to treat (or at least screen) individuals who request treatment.

These so-called "antidumping" laws have been a continuous source of both congressional and media attention. The Department of Health and Human Services (DHHS) has been criticized for failure to enforce federal law aggressively. While no final regulations have been published implementing the federal antidumping statute,1 congressional hearings and two reports from the Office of Inspector General (OIG) of DHHS in 1988 focused on the need for stricter enforcement. In particular, the lack of implementation of actual sanctions was stressed in these hearings and reports. Recent public statements from the Health Care Financing Administration (HCFA) and OIG make it clear that, as a result of such criticism, the federal government intends to increase the volume and intensity of its enforcement actions in this area.

Serious problems can result quickly from alleged "dumping" incidents, with little or no notice to the hospital involved. Indeed, if a hospital does not act quickly to respond to an investigation, it may receive notice of termination from the Medicare program at the same time such notice is received and publicized by the media. Hospitals around the country have reported that the publishing of such notices, even where termination did not result, has been very disruptive to the hospitals involved and their communities. Moreover, penalties under federal and state law for even an isolated violation of the emergency services laws can be severe. Thus, it is extremely important for hospitals to have a complete understanding of these legal requirements, to establish the necessary procedures in order to ensure compliance, and to be prepared in the event compliance is ever questioned to react as effectively as possible to the enforcement process.

The applicable federal statute, Section 1867 of the Social Security act, was added to the law by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), adopted by Congress in April 1986.2 The basic requirements of Section 1867 are:

* Medical screening. Any individual who comes to a Medicare-participating hospital that has an emergency department must be given an appropriate examination to determine if an emergency medical condition exists or if the patient is in active labor.

* Necessary stabilization. When a patient is found to have an emergency condition or to be in active labor, the hospital must either provide further examination and treatment, within its capabilities, to stabilize the medical condition or to treat the labor, unless such treatment is refused, or provide an appropriate transfer to another health facility.

* Restrictions on transfer. A hospital may not transfer a patient who has not been stabilized or is in active labor unless the patient requests the transfer or a physician or other qualified medical personnel (if a physician is not readily available) has certified that the benefits of a transfer outweigh the risks and the transfer is an "appropriate transfer."

* Appropriate transfer. In order for there to be an "appropriate transfer," the receiving facility must have space and qualified personnel and have agreed to accept the transfer, the transferring hospital must provide the receiving facility with appropriate medical records, and the transfer must be effected through qualified personnel and transportation equipment.3

Section 1867 also provides that violation of these "antidumping" provisions will subject a Medicare-participating hospital to possible implementation of the following sanctions:

* Termination or suspension of the hospital's Medicare provider agreement.

* Civil monetary penalties not to exceed $50,000 for each violation.

* Civil actions by individuals and/or receiving hospitals to obtain damages or other appropriate relief for personal harm or financial loss.

In addition, a physician who participates in an inappropriate transfer decision can be subject to a civil monetary penalty of up to $50,000.

Provisions have also been added to many state laws in the past several years to guarantee access to emergency services and care and to prohibit denial of emergency care.4 Florida, for example, has begun an aggressive enforcement program in the past year. The state's new "antidumping" law was passed in 1988.5

The basic obligations of hospitals under the Florida law are similar to those in Section 1867 with regard to the provision of emergency care to aH individuals regardless of ability to pay and the necessity of stabilizing patients prior to transfer. However, Florida law is more specific than the federal statute in the following important respects:

* Emergency services and care must be rendered without first questioning the patient or any other person as to ability to pay.

* Hospitals must treat patients when their emergency services are requested by another hospital in an appropriate transfer.

* Hospitals must maintain records of each transfer made or received for three years.

* Hospital employees, physicians, and other licensed emergency department personel must report a suspect violation within one week of its occurrence.

The enforcement provisions under Florida law allow for the following sanctions to be imposed on hospitals found to violate the emergency services provisions:

* Denial, revocation, or suspension of the hospital's license.

* A fine not to exceed $10,000 per violation.

* Civil actions for damages, attorneys' fees, and other appropriate relief by persons suffering harm due to the violation.

* Misdemeanor charges against administrative or medical personnel who knowingly or intentionally violate the law.

The Florida law requires the state's Department of Health and Rehabilitative Services to "vigorously enforce" the statutory requirements. Hence, a "dumping" incident in Florida could threaten a hospital's state license as wen as its Medicare provider agreement.

Given the severe nature of the penalties, it is incumbent on hospitals to be extremely careful to avoid any possible exposure to allegations of dumping. A complaint to the federal government or to a state government could trigger sanctions at both levels.6 This interaction of state and federal agencies involved in an investigation may be confusing and somewhat haphazard. It may be difficult to determine the status of two simultaneous enforcement proceedings. Both the hospital's involvement in the process and the amount of information it receives prior to sanction maybe minimal. Learning about investigations or sanctions in the press when it may be too late to react effectively can create serious difficulties for hospitals. Unfortunately, in the current legal environment, such outcomes are possible.

Ensuring Compliance

One of the reasons HCFA has given for not promulgating regulations to implement Section 1867 is that compliance and enforcement shold be self-evident' from the statute itself Senior HCFA officials have indicated that, simply put, compliance requires that every presenting individual be screened and that no transfer take place except in strict compliance with the provisions of Section 1876. HCFA emphasizes that it is the hospital's responsibility to make certain that the emergency department is adequately staffed and that staff members are carefully trained to guarantee compliance in every instance.

Training

Given the thrust of both federal and some state laws, such that even one isolated violation may trigger serious penalties, careful training of staff as to the legal requirements under the antidumping laws appears to be the most important element in compliance.

Written Procedures and Posted Information Sheets

Another important component of compliance is having written procedures and information sheets to inform and instruct emergency department staff and the public of the obligations imposed by federal and state emergency services laws. Such written materials may include:

* An emergency department patient's rights statement. Such a statement, which should include specific references to the fact that every patient will be screened and treated, if necessary, regardless of ability to pay, should be posted and made available in handout form to every individual presenting to the emergency department.

* An emergency department summary protocol for screening and transfer of patients. This protocol is a brief but direct statement of the hospital's responsibilities under the emergency services laws, covering both screening and transfer procedures, and should be posted in the emergency department for the benefit of both patients and staff.

* Specific additions and revisions to the hospital's procedures manual. Hospitals should carefully review their procedures and revise them to include appropriate references to the emergency services laws and definitions and procedures consistent with such laws. In particular, the sections on transfer should be carefully reviewed to ensure compliance.

Medical Staff

In addition to careful and proper training of a hospital's nursing, clerical, and other nonphysician support staff in procedures for complying with emergency services laws, it is essential that aH employed and contracting physicians working in the emergency department be well versed in such laws and in the hospital's compliance policies. Indeed, careful and appropriate physician decisions regarding transfers in difficult cases, as well as in making decisions as to stabilization," are essential to compliance.

Tracking Regulations

Any future regulations, rules, or gaidelines issued by HCFA to implement the emergency care laws must be carefully reviewed and incorporated into hospital policy.

Responding to investigations or Alleged Violations

Despite the current aggressive regulatory posture of the federal government and some state agencies on the "patient dumping" issue, the level of difficulty a hospital experiences as a result of an investigation or alleged violation may be significantly reduced by a quick and effective response. This includes appropriate and discreet inquiries, and possibly meetings, with the investigating agencies. In light of the dual nature of enforcement under federal and state laws, some negative consequences may result merely from lack of coordination or communication between federal and state enforcement efforts. However, investigative agencies appear to be, for the most part, open to discussions with hospitals during the investigative process. Certainly, a hospital under investigation should try to ensure that correct information is being obtained by all of the enforcement agencies. Additionally, at appropriate points, a certain amount of advocacy may also be possible.

While the specific due process rights of hospitals prior to the imposition of a final sanction at both the federal and the state levels are limited, there can be a significant benefit in many cases to working openly with the agencies during the investigative process. Of course, there are more clear-cut postsanction rights, such as agency appeals and judicial review. However, intervention at an earlier point, if possible, is usually a more desirable and effective approach.

Footnotes

1. Draft regulations were published on June 16, 1988, but, according to federal officials, they are currently undergoing significant revision.

2. Federal regulations promulgated pursuant to the Hill-Burton Act of 1946 also require the furnishing of emergency services regardless of ability to pay. See 42. C.F.R. [section] 124.603. These provisions are enforced by the Off ice of Civil Rights of the Department of Health and Human Services. A Hill-Burton hospital found to have denied emergency care to an individual could be subject to sanctions under the Hill-Burton Act as well as under COBRA and state law.

3. Note that current federal law does not require hospitals to report suspected cases of dumping. This requirement was included in the draft federal regulations and has been recommended by the OIG. Florida law does require such reporting.

4. According to an OIG report published in 1988, 23 states have passed laws aimed at eliminating dumping or inappropriate transfer of patients. Among the stricter of these laws, according to OIG, are those in California, New York, and Texas.

5. Fla. Stat. [sections] 395.0142-0144.

6. The federal law specifically does not preempt state law, and therefore enforcement proceedings under federal law and state law can proceed simultaneously.

T H E A U T H O R

Douglas A. Hastings, Esq., is a partner in the Washington, D.C., offices of Epstein Becker and Green, P.C.

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