October 2008 12 <strong>Health</strong> <strong>Care</strong> Compliance Association • 888-580-8373 • www.hcca-info.org
Court analyzes first case under Stark’s academic medical center exception ...continued from page 11 where a hospital diverts a nonhospital ambulance because of the individual is uninsured. A dissenting opinion was filed in the case. The dissenting judge found that the statute and regulations were clear and that “comes to an emergency department” unambiguously means “arrives” at the ED, such that an individual in an ambulance who has not yet arrived at the hospital is not <strong>with</strong>in the scope of the statute. The dissenting judge also found CMS regulations to reflect the agency’s interpretation that “the patient must, at the least, be physically on hospital property” and CMS’ interpretation is “eminently plausible” and should have been deferred to by the Court of Appeals. The First Circuit’s decision is consistent <strong>with</strong> the only other Court of Appeals decision on this issue, a 2001 decision from the US Court of Appeals for the Ninth Circuit. 8 In a case <strong>with</strong> similar facts, the Ninth Circuit also concluded that an individual in a non-hospital ambulance that was diverted specifically because of the individual’s insurance coverage was a violation of EMTALA. Interestingly, the 2001 decision from the Ninth Circuit was also a 2-1 decision, and the dissenting judge in the Ninth Circuit case shared the same view as the dissenting judge in the First Circuit case. Hospital compliance strategies In light of the tension between the regulations and court decisions, hospitals should structure their existing EMTALA policies and procedures to account for both the bright–line rules set by CMS and the courts’ intent-based interpretation. Hospitals should have a comprehensive EMTALA policy specifically addressing ambulance issues, including the following: n If the hospital owns an ambulance service, the hospital should have a process to ensure that all patients placed into a hospitalowned ambulance receive a screening examination and stabilizing treatment; n The hospital should identify a process for ensuring that a screening examination and stabilizing treatment is provided to all patients in a non-hospital ambulance that comes onto hospital property; n When communicating <strong>with</strong> a nonhospital ambulance, the hospital should not inquire about the patient’s insurance coverage or the patient’s ability to pay; and n Hospitals should not divert an ambulance to another hospital based upon the patient’s (real or perceived) insurance coverage or financial status. Following these suggestions will allow a hospital to ensure that it meets its EMTALA obligations, as interpreted by CMS and the courts. Hospital policies that focus on whether the individual is on hospital property and prohibit consideration of ability to pay are consistent <strong>with</strong> the intent behind EMTALA, as they ensure that individuals seeking emergency care are treated regardless of their financial status. Conclusion In the regulations implementing EMTALA, CMS states that an individual in a nonhospital ambulance has not “come to the ED” for purposes of triggering the hospital’s duties of providing a medical exam and stabilizing treatment. Out of an apparent fear that hospitals would divert ambulances <strong>with</strong> uninsured individuals to other hospitals, some courts have added an additional requirement, namely, that a hospital may not divert an ambulance purely because of the individual financial status. This additional requirement blurs the clear “on hospital property” standard set by CMS, but prudent hospitals should structure their EMTALA compliance activities to ensure that both standards are met. n 1 42 U.S.C. § 1395dd. 2 42 C.F.R. 489.24. 3 42 C.F.R. 489.24(b). 4 42 U.S.C. § 1395dd(h). 5 42 C.F.R. 489.24(b). 6 CMS, State Operations Manual, App. V, at 32. 7 524 F.3d at 59. 8 Arrington v. Wong, 237 F.3d 1066 (9th Cir. 2001). <strong>Health</strong> <strong>Care</strong> Compliance Association • 888-580-8373 • www.hcca-info.org Be Sure to Get Your CHC <strong>CEU</strong>s Inserted in this issue of Compliance Today is a quiz related to the articles: n The 1-2-3s of claims sampling to resolve overpayment errors — By B. Bo Martin, page 32 n Quality of care and compliance: Existing challenges and first steps for hospitals — By Cheryl L. Wagonhurst and Nathaniel M. Lacktman, page 46 n Complying <strong>with</strong> the HIPAA Privacy Rule: What you need to know — By Rebecca C. Fayed, page 59 To obtain <strong>your</strong> <strong>CEU</strong>s, take the quiz and print <strong>your</strong> name at the top of the form. Fax it to Liz Hergert at 952/988-0146, or mail it to Liz’s attention at HCCA, 6500 Barrie Road, Suite 250, Minneapolis, MN 55435. Questions Please call Liz Hergert at 888/580-8373. Compliance Today readers taking the <strong>CEU</strong> quiz have one year from the published date of the <strong>CEU</strong> article to submit their completed quiz. 13 October 2008
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