Notice: load_plugin_textdomain was called with an argument that is deprecated since version 2.7 with no alternative available. in /var/www/html/wp-includes/functions.php on line 3320
CMS and Washington State Conspire to Take Emergency Physician Services Illegally « The Central Line

CMS and Washington State Conspire to Take Emergency Physician Services Illegally


In response to a suit by emergency physicians and hospitals in Washington State that led to a judicial injunction against the State’s plan to restrict Medicaid payment for ED visits, the State of Washington’s Health Care Authority has conspired with CMS to require emergency physicians to provide services to Medicaid enrollees for free. Emergency physicians are required by law (EMTALA) to provide medical screening services (and stabilizing care) to anyone who presents to an emergency department, and these physicians are subject to severe fines and penalties if they fail to provide these services.

CMS is well aware of this obligation, yet this agency has notified the State of Washington that the Medicaid program may ‘proceed under its existing authority to pay for only medically necessary Emergency Room visits’ based on a list of so-called ‘non-emergency diagnoses’ submitted on claims to the Medicaid program in that State (and presumably, other states that want to use the same process). Thus, the federal government is requiring emergency physicians to perform a medical screening evaluation (which can be as simple as a brief history and exam, or as complicated as a full and thorough evaluation to rule out subtle but potentially life threatening medical conditions), but is telling federally-funded state Medicaid programs that they need not pay the emergency physician for this service if it turns out the patient does not have a medical emergency, based on this list of final diagnoses. When a government mandates a service from private individuals, and refuses to pay for that service, this is tantamount an unconstitutional and illegal taking of services, and is surely a violation of the physician’s rights.

Curiously, CMS does not allow Medicaid Managed Care Plans in any state to use a list of final diagnoses to preclude payment to emergency physicians or hospitals for these screening and stabilization services. Many states explicitly require payment for medical screening services even when no medical emergency is detected. It is pretty clear that Washington State’s HCA is pushing back hard on emergency care providers for having the gall to use the courts to defy their authority. Resorting to this kind of abusive policy, knowing that it is likely to undermine the financial viability of the safety net and the ability of emergency care providers to meet the needs of all of Washington’s citizens, goes beyond the pale.

The list of so-called non-emergency diagnoses that WA HCA has come up with provides a clear indication of the extent to which this agency will go. This list includes such diagnoses as: hyposmolality (which can cause coma), hemopthalmos (hemorrhage in the eye), foreign body in the hand (often causes infection), multiple contusions (as in getting a beating), pregnancy, etc. Even if every single one of these diagnoses can be managed in a physician’s office, it is important to understand that to get to these diagnoses, it is often necessary to rule out other conditions that may look very similar, but are far more serious, even life-threatening. Performing a cursory medical screening exam in an ED is a prescription for a very expensive EMTALA violation, a hospital’s loss of the right to treat Medicare patients, and a malpractice suit that can end a career. Requiring emergency care providers to perform these evaluations on Medicaid enrollees, and then refusing to compensate them for the effort (and the risk), is just reprehensible.

This post was also published in The Fickle Finger (www.ficklefinger.net/blog/)

, , ,

  1. #1 by Jim Blakeman - January 27th, 2012 at 17:09

    Your quotation of CMS policy allowing nonpayment of medically necessary visits ends where you add that the CMS cap proves denials by “a list of so-called non-emergency diagnoses”. Can you cite your reference for CMS’ change in policy. The Nancy Ann Mindeparl letter from the early 2000s says the opposite. WA State’s policy is abhorrent public policy. If your argument is that CMS should intervene and clarify, that’s different than your assertion that thy have already intervened and approved this policy. Please clairfy with a cite

  2. #2 by Myles Riner, MD - January 27th, 2012 at 19:14

    According to Washington State’s HCA, in a 2011 Fact Sheet entitled ‘Non-emergency care in the ER’, “In December, the Centers for Medicare and Medicaid Services informed HCA that a different approach would not require a State Plan Amendment and that the Medicaid program could proceed under its existing authority to pay for only medically necessary Emergency Room visits. This means the Emergency Room must be the medically necessary setting for the delivery of care.” I do not know if CMS informed WA HCA verbally or by letter, or if CMS actually stated that WA Medicaid Fee for Service could make the determination of medical necessity based on the diagnosis on the claim and a list of ‘non-emergency diagnoses’ rather than by reviewing the medical record, but this is how Washington HCA is interpreting the CMS notification, and how they plan to exercise their ‘existing authority’ to run the Medicaid FFS program.

    I am not sure which of the many letters you are referring to that Nancy Min DeParle wrote, in her many roles at HCFA and CMS, but generally these restrictions on how our claims are addressed (like prudent layperson) mainly dealt with Medicaid Managed Care plans, not state Medicaid Fee for Service programs (which are free of prudent layperson requirements).

    Unless WA State HCS is misquoting or misinterpreting what CMS told them (intentionally or otherwise), I suspect they are reflecting a new relaxing of prior regulatory restrictions on how States interpret the approach to covering emergency care under their fee-for-service programs. Hopefully, the application of the prudent layperson standard, which implies reliance on review of the medical record to determine coverage, and the transition of so many States from FFS Medicaid to Managed Care Medicaid, will temper the use of ‘non-emergency diagnoses lists’ to deny coverage and payment of ER physician claims.

    However, I just received a new Q&A from WA HCA entitled ‘Emergency Rooms and Medical Necessity’ in which they say “HCA fee-for-service AND MANAGED CARE will only purchase care that is medically necessary, and in this case, medically necessary care includes care provided in the appropriate setting.” HCA also says that emergency physicians will not be able to bill Medicaid patients when HCA denies payment for this non-emergency care because the care is a covered service (in an office setting), and you can not bill a Medicaid patient for a covered service. Finally, “The EMTALA screening payment will only be made by managed care plans for managed care clients. There will be no EMTALA screening payment for clients covered by the fee-for-service program.” So it seems that payment for an EMTALA required medical screening exam only applies when the prudent layperson applies (under managed care), but it is still not clear whether HCA proposes to allow Medicaid Managed Care plans to do an end-run around the prudent layperson standard by allowing them to determine payment of the claim based on the final diagnosis rather than a review of the medical record.

    I stand by my conspiracy theory regarding CMS and WA State Medicaid and the illegal taking of emergency physician services. A partial solution to this abuse would be federal legislation to apply prudent layperson and mandatory payment for medical screening and stabilization services to ALL insured patients.

  3. #3 by Daniel - February 18th, 2012 at 12:17

    Your quotation of CMS policy allowing nonpayment of medically necessary visits ends where you add that the CMS cap proves denials by “a list of so-called non-emergency diagnoses”. Can you cite your reference for CMS’ change in policy. The Nancy Ann Mindeparl letter from the early 2000s says the opposite. WA State’s policy is abhorrent public policy. If your argument is that CMS should intervene and clarify, that’s different than your assertion that thy have already intervened and approved this policy. Please clairfy with a cite

  4. #4 by Myles Riner - February 18th, 2012 at 15:52

    Thanks for your comment. Again, I am relying on the documents from WA State that say they got approval from CMS to rely on their existing authority for operation of the state’s Medicaid FEE-FOR-SERVICE program to deny payment for services that do not need to be provided in an ED setting. Perhaps the confusion comes from my use of the term ‘medically necessary’, which WA is defining as ‘is it medically necessary to provide the service IN THE ED’, rather than using this term in the usual ‘is it medically indicated’ way that we typically think of it.

    The CMS requirement that Medicaid MANAGED CARE PLANS adhere to the prudent layperson definition of a medical emergency does not apply to Medicaid Fee-for-Service programs, which goes to the issue of the determination of payment based on the patient’s symptoms, etc, in the medical record rather than on the final diagnosis.

    Presumably, when the suit against WA by WA ACEP gets to the discovery phase, we will be able to learn exactly what it was that CMS said to WA State health care agency. Can you tell me which Mindeparl letter (she drafted many in the early 2000s) you think prohibits state Medicaid fee-for-service programs from using list of diagnoses to determine which claims the program need not reimburse.

(will not be published)
*

  1. No trackbacks yet.