CMS and Washington State Conspire to Take Emergency Physician Services Illegally
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EMTALA mandate

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.


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