Practical EMTALA solutions to 2 tricky urgent care scenarios.

Your facility makes the decision to set up an urgent care clinic to take some pressure off the ER and provide a place where patients can go for non-emergency care. But did you know EMTALA, which regulates emergency departments, is still an issue?

Using two different real-life scenarios in a recent presentation titled “Facing Non-Emergent Care in the Emergency Department,” Duane Abbey, president of Abbey & Abbey Consultants, Inc., explained how a hospital or medical center can structure its policies and procedures to effectively establish an EMTALA-compliant urgent care center.

Scenario #1: Urgent Care Center Across Town

In this situation, a hospital establishes a provider-based clinic 10 miles across town from the main campus. Designed to take walk-ins and allow some scheduled patients, this center anticipates receiving mainly urgent care cases, but also some emergencies. The hospital staffs the new center with two ER physicians who are from the contracted ER physician group at the hospital as well as with some non-physician practitioners. The clinic is open from 6:00 a.m. to 11:00 p.m., seven days a week.

The first thing to consider, said Abbey, is that CMS could start thinking this is more than an urgent care center. “When you set these up, and they take walk-ins, be very careful about whether this becomes a dedicated emergency department” under EMTALA, he said. “It’s not an easy question to answer.”

Under EMTALA, “urgent care services” are defined as “services furnished to an individual who requires services to be furnished within 12 hours in order to avoid the likely onset of an emergency medical condition.” Set the function of the clinic up in your policies and procedures to address non-emergent care, he said.

And can get the clinic qualified so it’s not construed as a dedicated emergency department. Be sure to check the Organizational Structuring and Provider-Based Rule (PBR –42 CFR§413.65) concerning Urgent Care Clinics, he suggested. That should help you to avoid EMTALA’s ER-specific requirements that we discussed in a former post.

Scenario #2: Clinic Across the Hall from Hospital’s ED

In this real-life situation, a hospital determines that the majority of its emergency department encounters are not in fact emergencies and is having trouble recruiting ER physicians. Its answer is to ask the multi-specialty clinic in town to establish a clinic inside the hospital right across the hall from the ED. The physicians rent the space, use their own staff, and the clinic is open from 8:00 a.m. to 10:00 p.m. Monday through Friday, and then also on Saturday from 8:00 a.m. to 1:00 p.m. If a patient comes to the main hospital’s ED and it is not an emergency, he or she is sent across the hall where services can be provided at a much lower cost to the patient. This new arrangement will also allow the hospital to gear back the ED services.

There is nothing questionable about this arrangement under EMTALA, Abbey said, if you do it correctly. In the real-life example, a receptionist was sending patients to the clinic across the hall. “This is not appropriate under EMTALA,” said Abbey, because a “qualified medical person” must perform a medical screening exam. You can designate who that qualified medical person is, but some kind of exam must take place.

AUDIO TRAINING EVENT: 2010 ED Coding & Compliance Update. With Caral Edelberg, CPC, CCS-P, CHC.

How does your hospital handle non-emergencies in the emergency room? EMTALA sets some neat little traps for unwary hospitals in this area. But with proper planning, you can be prepared for a range of situations in the ER that could get you in hot water with regulators.

In a recent webinar, “Facing Non-Emergent Care in the Emergency Department,” Dr. Duane Abbey, president of Abbey & Abbey Consultants, Inc., laid out some ways to handle common compliance issues raised by EMTALA in hospital ERs.

The problem is that individuals come to the ER who don’t have emergencies, but do have clinical level or even urgent needs. “But under EMTALA,” said Abbey, “you have to jump through hoops to make sure you’re not violating it.” Fines under the statute run upwards of $25,000 per incident, he noted.

“The biggest compliance thing we have to worry about is EMTALA,” he said. “When a patient comes to the emergency department, what are our obligations?” The main issue here is how far does EMTALA’s requirement that you perform a medical screening examination go?

The most common situations that implicate EMTALA are:

• Individual presents, medical screening exam (MSE) performed, but no emergency medical conditions. Services are provided.
• Individual presents on a scheduled (semi-scheduled) basis for a non-emergency medical condition.
• Individual presents on a post-operative basis for non-emergency services.
• Individual presents to ER in order to meet physician for services to be provided in the ER.

A typical situation involves an elderly Medicare patient who shows up in the ER because she can’t see her physician for some reason — the office is closed, usually — with a medical condition like a stuffy nose or a headache. The first issue, said Abbey, is who makes the determination that her condition is not an emergency?

Under EMTALA, a “qualified medical person” must perform an MSE in the ER. The good news is that hospitals can craft their own policies and procedures to define who a qualified medical person is. Nurses can easily be designated.

Next, make sure you log all visits to your ER. Use an EMTALA log to keep track of who comes, what do you do, the disposition of the case, whether the patient leaves against medical advice, etc. “Regardless of whatever policies and procedures you use,” said Abbey, “please document everything.”

The next issue becomes how to code and bill in the ER for procedures that are not emergencies. There are three levels of care under EMTALA that correspond to medical conditions, Abbey explained: Emergency, urgent, and clinical. The question is how to code and bill for treating urgent or clinical-level conditions in an emergency setting.

Take a routine suture removal that the patient has been directed to return to the ER for. This is a typical “clinical level” encounter, Abbey said, but because it occurs in the ER, it can be very expensive. However, in your policies and procedures, you can set it up to be billed out at a lower, clinical level.

Or take a patient who comes to the ER for his second rabies shot; he can’t come to the outpatient department because he works during business hours when it’s open. You can set up your policies & procedures to not consider this as an emergency room encounter, even though you’re using the ER, Abbey said.

This way, everyone is happier, he noted. Patients can’t complain or balk at having to pay higher emergency rates, and the pay matches the appropriate level of service. “It becomes a patient relations issue” at some point, he said, to charge emergency rates simply because they come to the ER, which is what many hospitals do, rather than try to untangle the EMTALA statute.

Finally, he noted, despite any confusion surrounding coding and billing in the ER, never forget that the hospital’s primary goal is to take care of patients. Then worry about coding, billing, reimbursement, and, of course, compliance, he said. “If you make decisions relative to patient care, you can go a long way to defend yourself if it was clinically what you should have done.”

Available on CD: Success Strategies to Overcome EMTALA-Related Payer Struggles. Presented by Caral Edelberg, CPC, CCS-P, CHC.

The OIG’s 2010 Work Plan is full of clear enforcement and compliance goals that will affect physicians. And then there are other issues the OIG will investigate that at first may not seem to have much to do with doctors — but reading between the lines could help physician practices prepare for some unexpected compliance issues next year.

Two such issues in this year’s work plan involve independent diagnostic testing facilities (IDTFs) and EMTALA oversight.

Fly-by-Night IDTFs Attract Feds’ Attention

The Work Plan indicates that the OIG is interested in two areas concerning IDTFs: services and billing patterns in areas with high concentrations of IDTFs; and compliance with the facilities’ Medicare enrollment standards.

“A 2006 OIG review found numerous problems with IDTFs, including noncompliance with Medicare standards and potential improper payments of $71.5 million,” says the OIG. “In areas with a high density of IDTFs, we will examine service profiles, provider profiles, beneficiary profiles, and billing patterns.”

And in a separate category, the OIG says it will examine, in particular, whether IDTFs are “in compliance with all applicable Federal and State licensure and regulatory requirements for the health and safety of patients, provide complete and accurate information on their enrollment applications, and have technical staff on duty with the appropriate credentials to perform tests.”

“This stems from the government’s concern that because you don’t have to be a doctor, anyone can set up one of these IDTFs and bill Medicare,” says Todd Rodriguez, a health care lawyer with Fox Rothschild in Exton, PA who’s been helping HC Compliance News parse the 2010 Work Plan. “In last year’s Work Plan, they had similar proposals to review IDTFs.”

Rodriguez points to recent OIG investigations of DME fraud in Florida that also uncovered IDTFs set up to fraudulently bill Medicare. “Investigators would show up, and these companies would have disappeared. There was no office, nothing,” he says. “So the government is trying to make sure they are legitimate.”

This only becomes a problem for doctors because increased scrutiny of IDTFs means that legitimate facilities need to have all their ducks in a row. “Doctors own or invest in IDTFs, so even though they bill mainly through their medical practices, these things can be separately credentialed,” Rodriguez says. “If you’re an investor-owner, make sure you are in compliance with each and every one of the conditions of coverage and enrollment requirements.”

EMTALA Review Could Open Hospital Contract Issues

The OIG also says it plans to review CMS’s oversight of hospitals’ compliance with the Emergency Medical Treatment and Labor Act — a goal that may not catch the attention of physicians. But it should, according to Rodriguez.

“A previous OIG review raised concerns about … long delays to investigate complaints and inadequate feedback provided to hospitals on alleged violations,” according to the Work Plan. “We will identify variations, if any, among regions in the number of EMTALA complaints and cases referred to States, examine CMS’s methods for tracking complaints and cases, and determine whether required peer reviews have been conducted prior to CMS’s making a determination about whether to terminate noncompliant providers from the Medicare program.”

While EMTALA is really a hospital issue, the OIG’s interest in this area could affect physicians as well, says Rodriguez, because increased pressure on hospitals to comply means increased pressure on physicians to meet on-call coverage requirements.

EMTALA requires doctors in appropriate specialties have to be prepared to treat patients in the ER, he explains, and there is usually tension between hospitals and doctors about their obligations as staff to take ER calls. “This becomes a question of coverage in their contracts,” Rodriguez says. “This review by the OIG will put pressure on hospitals to spruce up their EMTALA compliance, and as a result, we’ll likely see hospitals push harder on staff physicians to take emergency calls.”

AUDIO: 2010 Work Plan for Physicians. With health care attorney Todd Rodriguez.

Question:

Answer: If a patient cannot pay, a physician practice doesn’t have to render services. Since it’s not an emergent situation you describe here, your best bet may be to suggest the patient reschedule for another time when he can bring his copayment with him.

Private physician practices do not fall under the Emergency Medical Treatment and Active Labor Act (EMTALA) regulations that affect emergency rooms. EMTALA dictates that participating hospitals — in other words, hospitals which have entered into provider agreements under which they will accept Medicare payment for services provided to beneficiaries of that program — must provide “an appropriate medical screening examination” to a patient who “comes to the emergency department” seeking “examination or treatment for a medical condition” to determine if he patient is suffering from an “emergency medical condition.” If he is, then the hospital must either provide him with treatment until he is stable or to transfer him to another hospital in conformance with the statute’s directives.

Bottom line: Inner ear pain and dizziness are not likely indicative of an emergency situation, which means EMTALA would not apply. Plus, as a private practice you are not held to the EMTALA rules like an emergency room would be. Therefore, you can choose what is the best way for your practice to handle this situation.

To learn more about EMTALA, visit this EMTALA information page at the American College of Emergency Physicians.

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