Laws and Regulations – APRA

Did your doctor make a mistake? Suing medical providers in Florida is easy, winning isn’t

Peter Hunt — Fri, 25 Nov 2022 19:19:08 +0000

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Refusal of Emergency Care and Patient Dumping

Peter Hunt — Sun, 16 Jan 2022 18:26:42 +0000

By Jeffrey Kahntroff and Rochelle Watson, AMA Journal of Ethics, Jan. 2009.

Gabino Olvera is a 42-year-old man who is mentally ill, paraplegic, and homeless. He was dropped off by Hollywood Presbyterian Medical Center in a soiled hospital gown with a catheter bag and no wheelchair in a neighborhood populated by many other homeless people [1]. Carol Ann Reyes, an elderly woman suffering from dementia, was dropped off by Kaiser Permanente Bellflower Medical Center in front of Union Rescue Mission, an organization that serves the needy and homeless, wearing just a hospital gown [1]. This practice is known as “patient dumping.”

Patient dumping violates the federal Emergency Medical Treatment and Active Labor Act (EMTALA). Enacted in 1986, EMTALA seeks to prevent any refusal of care for patients who are unable to pay [2]. It imposes three requirements on any Medicare-participating hospital and enforces monetary sanctions against physicians or hospitals that do not comply [3]. Participating hospitals must: (1) conduct medical-screening examinations, (2) provide necessary stabilizing treatment to any patient seeking emergency medical care in an emergency department, and (3) hospitals that are unable to do (1) and (2) may transfer the patient to a facility that can provide those services in a manner that accords with EMTALA guidelines [4].

To establish a violation of EMTALA, “a plaintiff must demonstrate that (1) the hospital is a Medicare-participating hospital covered by EMTALA that operates an emergency department (or an equivalent treatment facility); (2) the patient arrived at the facility seeking treatment; and (3) the hospital either (a) did not afford the patient an appropriate screening to determine whether he or she had an emergency medical condition, or (b) bade farewell to the patient (whether by turning away, discharging, or improvidently transferring him or her) without first stabilizing the emergency medical condition” [5]. Forty-three of the 50 states have adopted statutes similar to the federal requirements [6-9].

Despite these statutes and penalties, hospitals have continued turning patients away. From 1996 to 2000, the watchdog organization Public Citizen confirmed violations from 527 hospitals in 46 states, as well as the District of Columbia and Puerto Rico [10]. Of the 527 hospitals, 117 had violated the act more than once, and for-profit hospitals were significantly more likely to do so [10].

EMTALA’s inability to curb denial of treatment has been attributed to the ambiguity of the statutory provisions, poor enforcement mechanisms, and divergent judicial interpretations of the statutory provisions. A 2001 Office of the Inspector General (OIG) study revealed that emergency-care personnel and hospital staff are often unaware of EMTALA provisions and policy changes, and, even when they are aware, there is uncertainty about the proper interpretation and application of the provisions [11]. Furthermore, most emergency personnel do not receive EMTALA guidelines [11].

Lack of uniformity in enforcing the provisions also contributes to their ineffectiveness. Some hospitals have a greater chance of being investigated than others, not because they are more prone to violate EMTALA terms, but because they are geographically closer to Centers for Medicare & Medicaid Services (CMS) regional offices [11]. The EMTALA enforcement process fails to notify hospitals that are at risk for violating the proper standard of care, and regional CMS offices often don’t inform state survey agencies, hospitals, and peer-review organizations about their decisions [11]. Thus, statistics on violations are often inconsistent and incomplete.

Judicial decisions have also produced conflicting interpretations of what emergency personnel must do to comply with EMTALA. The EMTALA requirement that emergency personnel provide appropriate medical screening within the capability of the emergency department, for example, can be interpreted under an objectively reasonable standard, subjective standard, or burden-shifting standard [12-14]. There is discrepancy about whether physicians should be held to the negligence standard of care customary in the medical field, or whether EMTALA is governed by a strict liability standard [15]. Finally, disagreement persists over whether the three duties imposed on medical personnel—to provide an appropriate medical screening examination, to stabilize, and to appropriately transfer patients—are separate duties that should be considered individual causes of action under law or whether they should be viewed conjunctively [16, 17]. The divergent standards of judicial interpretation further hamper EMTALA’s effectiveness by creating inconsistent standards of compliance. Emergency personnel are not able to comply with EMTALA provisions because it is not clear what exactly is required of them, and case law has only exacerbated the problem.

Despite EMTALA’s shortcomings, the statute is not without bite. The OIG recorded eight violations of EMTALA in November 2008 [18]. Baptist Hospital, Inc., in Florida, agreed to pay $22,500 to settle allegations that it failed to perform a medical screening on a suicidal man. After informing the registrar that his suicidal thoughts were growing stronger, the patient was informed that he would have to continue to wait—he then proceeded outside and lacerated his right arm [18]. Cumberland County Hospital System, Inc., in North Carolina, agreed to pay $42,500 to settle claims that it unsuccessfully provided appropriate medical screening or stabilized a suicidal 13-year-old girl. The physician saw the patient for 5 minutes before releasing her. Fifty minutes later, the patient jumped out of a car traveling approximately 40 miles per hour and fractured her skull [18].

Recent cases in Los Angeles demonstrate that the threat of large fines might deter the practice of patient dumping under state law. The Los Angeles City attorney secured a settlement with Methodist Hospital amid allegations of patient dumping that required the hospital to implement detailed protocols for the discharge of homeless patients. The hospital will also contribute $215,000 to fund recuperative care beds for homeless individuals at the Salvation Army’s Bell Shelter and pay $5,000 in civil penalties and $20,000 in investigative costs [19]. Kaiser Hospital reached a similar agreement in May 2007, resulting in court-ordered protocols for the proper discharge of homeless patients, as well as $500,000 in donations to a charitable foundation that offers services to the homeless and $5,000 in civil penalties [19].

In response to recent incidents in California, Los Angeles passed a city ordinance that prohibits transporting or arranging for the transport of patients to somewhere other than their home without their written consent [20]. A violation of the ordinance warrants a $25,000 penalty for the misdemeanor and the suspension of the hospital’s Medicare finding for at least 5 years [20].

The underfunded health care system in the United States drives the practices of patient dumping and refusal of care. Caring for patients who do not have insurance is costly, and much of the treatment often goes without reimbursement. From 1994 to 2005, the number of emergency department visits increased 18 percent from 93.4 million to 110.2 million annually, a rate that coincided with the rising costs of care and lower reimbursement by managed-care organizations and other payers, including Medicare and Medicaid [21]. The trend disproportionately affects low-income patients, who generally do not have access to health care and often seek it in emergency rooms. In response to the rising costs of medical care, states have implemented a series of measures directed at lowering costs, including reductions in Medicaid eligibility, benefits, and provider payments [22]. As Clay Mickel, spokesman for the American Hospital Association, stated, “The real problem is that the government has not acknowledged that caring for the indigent is its responsibility” [23]. The solution to patient dumping may lie in addressing its root causes rather than strengthening the enforcement mechanisms in EMTALA and similar state statutes.

Nevada and New Mexico State Medical Debt Collections Laws to Take Effect July 1, 2021

Peter Hunt — Thu, 22 Jul 2021 17:56:13 +0000

By Christine Emello, Ballard Spahr, LLP, June 17, 2021.

State legislatures in New Mexico and Nevada enacted laws this session targeting medical debt collections. Both laws have been signed by the states’ Governors and take effect July 1, 2021.

New Mexico Patients Debt Collection Practices Act

The New Mexico Patients Debt Collection Practices Act places a number of requirements on health care facilities and debt collectors and buyers.

Notably, the Act prohibits collection actions against indigent patients, who are defined as those making less than 200% above the poverty limit. “Collection actions” are defined to include selling debts, and filing lawsuits, lien, or garnishments. Health care facilities and third-party health care providers are also required to send annual reports to the human services department related to indigent care funds and safety net care funds under the Indigent Hospital and County Health Care Act and funds raised to cover the cost of operating and maintain certain hospitals pursuant to the Hospital Funding Act.

Health care facilities are also required to offer to provide certain health insurance verification services to patients before seeking payment for medical care. The facility must offer to verify that a patient has health insurance, and, if the patient is uninsured, provide information about public insurance, public programs, and any financial assistance offered by the facility. The facility must also offer to assist with applying to any applicable programs. If a third-party health care provider will bill the patient, the facility must send the information gathered during the insurance verification process to the third-party provider. The health care facility may not seek payment for the medical care until the third-party health care provider has received that information.

The Act also includes new requirements for billing statements. Billing statements sent to the patients must include: (1) a description of the date, amount and nature of all charges: (2) whether the patient’s insurance has been verified; (3) if the patient was screened for programs that assist with health care costs; and (4) if the health care facility or third-party health care provider has or will bill insurance or public programs to assist with the health care costs. This billing statement must also be provided to debt collectors and debt buyers before they can communicate with the consumer or take any collection action.

In communications with the debtor, health care facilities, third-party health care providers, creditors, debt collectors, and debt buyers must offer to provide the debtor with the information listed in the billing statement. However, this information must only be provided to the requesting debtor once every thirty days.

Additionally, within 30 days of receipt of payment on a medical debt, health care facilities, third-party health care providers, creditors, debt collectors, and debt buyers must send a receipt to the person who made the payment that shows: (1) the amount paid; (2) the date of the payment; (3) the new balance; (4) the interest rate and interest accrued since the last payment; (5) the account number; (6) the current owner of the debt, and the name of the creditor; and (7) if the payment was accepted as a payment in full of the debt. Payments must be applied on the date they were received, or if it was received after business hours, the next business day.

Finally, the Act prohibits agreements between a patient and a health care facility, provider, creditor, debt collector, or debt buyer that result in a patient waiving his or her right to resolve a dispute.

The Act gives the New Mexico Attorney General enforcement authority, and authorizes the Attorney General to adopt rules. The Act also tasks the Attorney General with establishing a complaint process for aggrieved patients or members of the public to file their complaints against a health care facility, third-party health care provider, creditor, debt collector, or debt buyers who violates a provision of the Act.

Nevada Medical Debt Collection Law

Nevada’s new medical debt collection law applies to all debts for goods and services provided by medical facilities. “Medical debt” is defined broadly, and includes the financing or extension of credit for a third party if the sole purpose of the extension of credit is for the purchasing or goods or services from a health care facility or provider. The only express exemption from the definition of “medical debt” is open-end or closed-end extensions of credit made by a financial institution to a borrower, which the borrower can use for purposes other than the purchase of goods or services from a medical facility or provider, at the borrower’s discretion. “Medical facilities” has the same definition as provided under Nev. Rev. Stat. Ann. § 449.0151.

The law also provides for a 60-day notification period. During this period, collection agencies are prohibited from taking any action to collect a medical debt and are required to send the debtor a written notification, by registered or certified mail, that includes: (1) the name of the facility; (2) the date the goods and/or services were provided; (3) the principal amount of the debt; (4) the name of the collection agency; and (5) information regarding whether the debt has been assigned to a collection agency, or whether the collection agency has otherwise obtained the debt for collection. Debtors may opt to initiate contact with the collection agency during this 60-day period, but this does not allow the collection agency to take action before the expiration of the 60-day period.

Collection agencies are permitted to accept voluntary payments from the debtor during the 60-day notification period if the following conditions are met: (1) the debtor initiates the contact; and (2) the collection agency discloses to the debtor that a payment is not demanded or due during the 60-day period; and (3) the medical debt will not be reported to any credit reporting agency during the 60-day period. The law does not specify how this disclosure must be given to the borrower. Voluntary payments do not extend the applicable statute of limitations, admit liability, or waive any defense the borrower may have to the collection of the medical debt.

Additionally, the law prohibits collection agencies from taking confessions of judgment, commencing a civil action for debts less than $10,000, and charging or collecting fees of more than 5% of the debt. It also provides that the law’s requirements and prohibitions cannot be waived.

Federal Patient Safety Act Protects Hospital’s Infection Data From Patient Lawsuit

APRA — Sat, 28 Sep 2019 17:16:13 +0000

by Mary Anne Pazanowski, Bloomberg Law. Sept. 27, 2019.

A patient who contracted an infection following an elective hospital procedure may not access information related to the hospital’s infection prevention guidelines, a federal court in Pennsylvania said.

Documents produced by Robert Packer Hospital’s patient safety organization for the purpose of improving patient safety fell within the federal Patient Safety and Quality Improvement Act’s privilege for patient safety information, the U.S. District Court for the Middle District of Pennsylvania said Sept. 26.

Copies of the hospital’s agenda, notes, and written records of quality control meeting at which infection prevention procedures were discussed also were privileged, although the hospital’s correspondence with federal, state, and local agencies was not, it said.

Richard Rumsey sued the hospital and Guthrie Medical Group PC for medical malpractice. He alleged they negligently failed to test and treat him for methicillin-resistant staphylococcus aureus. Rumsey sought discovery of information related to the hospital’s infection-prevention procedures.

The PSQIA creates a process for hospitals that engage in peer review to collect, manage, and analyze patient safety data and deposit it in a patient safety evaluation system. The data is intended to be disclosed to a patient safety organization, which collects information from multiple providers, aggregates it, and recommends fixes for common patient safety issues.

The act provides a privilege for the underlying patient safety work product so that “medical professionals may provide the brutally honest feedback hospitals need to keep their patients safe without fear of its use in litigation,” the court said. Pennsylvania’s Medical Care Availability and Reduction of Error Act provides similar protections.

Judge Matthew W. Brann wrote the opinion.

Cozen O’Connor represents Rumsey. Kane, Pugh, Knoell, Troy & Kramer LLP represents the hospital.

The case is Rumsey v. Guthrie Med. Grp., P.C., 2019 BL 362705, M.D. Pa., No. 4:18-cv-1605, 9/26/19.

Maternal deaths rising in the U.S. – New Legislation to Find the Answer.

APRA — Fri, 15 Feb 2019 18:45:48 +0000

“Landmark” Maternal Health Legislation Clears Major Hurdle.

In the wake of the ProPublica and NPR series “Lost Mothers,” the U.S. House of Representatives unanimously approved a bill to fund state committees to review and investigate deaths of expectant and new mothers.

By Nina Martin, ProPublica.

On Thursday evening, the Senate unanimously passed its version of the Preventing Maternal Deaths Act, sending it to the president to sign.

Congress moved a big step closer on Tuesday toward addressing one of the most fundamental problems underlying the maternal mortality crisis in the United States: the shortage of reliable data about what kills American mothers.

The House of Representatives unanimously approved H.R. 1318, the Preventing Maternal Deaths Act, to help states improve how they track and investigate deaths of expectant and new mothers.

The bipartisan bill authorizes $12 million a year in new funds for five years — an unprecedented level of federal support — for states to create review committees tasked with identifying maternal deaths, analyzing the factors that contributed to those deaths and translating the lessons into policy changes. Roughly two-thirds of states have such panels, but the legislation specifically allocates federal funds for the first time and sets out guidelines they must meet to receive those grants.

“We’re going to investigate every single [death] because these moms are worth it,” Rep. Jaime Herrera Beutler, R-Wash., the lead sponsor, testified at a hearing in September. Lisa Hollier, president of the American College of Obstetricians and Gynecologists, called the legislation a “landmark.”

The full Senate still needs to give its approval, with only a few days to act before the end of the current session. Senators have already authorized the necessary funding, in budget legislation that passed this year.

As ProPublica and NPR have documented in the “Lost Mothers” series, maternal deaths have been rising in the U.S. in recent years even as they declined in other wealthy countries. More than 700 women die each year in America from causes related to pregnancy or childbirth, while at least 50,000 suffer life-threatening complications. Nationally, black women have a maternal mortality rate three to four times higher than that of white women. At least 60 percent of maternal deaths are preventable.

Among the reasons the U.S. has fallen behind other countries, one stands out: government failures to collect accurate data and to study maternal deaths and near-deaths to understand how they might be prevented.

State maternal mortality review committees can play a key role in this process, public health experts say. They are particularly critical to understanding and narrowing racial disparities in outcomes. They have uncovered the surprising fact that cardiac-related issues are the leading cause of death for mothers and that the majority of deaths don’t occur during childbirth but in the days and weeks after birth.

But many committees have little or no funding and rely on volunteers to do their work. They publish reports irregularly and, in some cases, do not address the issue of preventability at all. As a result, many maternal deaths have gone miscategorized or uncounted, and many researchers and clinicians have formed a distorted picture of why mothers die, often putting the blame unfairly on women themselves instead of medical providers, hospital systems and other factors.

The House bill says that reviews are “essential” for “developing prevention efforts and quality improvement and quality control programs.” It adds, “The United States must identify at-risk populations and understand how to support them to make pregnancy and the postpartum period safer.” The guidelines for receiving federal funding dictate how committees should be made up and how evaluators should find and count deaths.

Members of Congress have introduced other bills in recent years to try to prod states to establish review committees or strengthen existing ones. But maternal mortality wasn’t seen as a serious problem, and the legislation was usually associated with one political party, Democrats. The bills did not gain traction.

The “Lost Mothers” series and a deluge of other media reports changed that, helping to create an unprecedented sense of urgency, maternal health advocates say. “I don’t think we would be as far as we are without that,” said Kathryn Schubert, chief advocacy officer for the Society for Maternal-Fetal Medicine, whose members are doctors specializing in high-risk pregnancies. “Every day, I get a call from somebody saying: ‘Oh my God, this is a real problem. We have to do something,’ because they’ve read it in the news.”

The news stories have also inspired mothers who have survived life-threatening complications and relatives of women who died. “It became the call to arms,” said Eleni Tsigas, head of the Preeclampsia Foundation and a co-founder of a new coalition of maternal health organizations, MoMMA’s Voice.

The nonstop advocacy by patients and doctors — and even groups like March of Dimes, which has traditionally been more focused on infant health — has been effective. “Twelve million dollars [per year] was more than we originally had in the legislation,” Schubert said. “That never happens. … They put in money that we didn’t even dream of asking for at this point.”

The other important factor in the legislation’s success has been bipartisanship: The House bill and its Senate companion, S-1112, were introduced by Republicans as well as Democrats, and both have acquired many supporters along the way. Even so, despite having some 190 co-sponsors, the House bill remained stalled in committee for most of the past two years, coming unstuck in recent weeks after a lobbying blitz by medical groups and patient advocates.

Several more-sweeping maternal-related bills are pending on Capitol Hill, and just last week, the Senate approved a bill aimed at reducing chronic shortages of maternity care providers in some parts of the country, sending it to the president to sign. Meanwhile, lawmakers outside Washington have also been active — at least six states have passed bills in the past year establishing or strengthening their maternal mortality review panels.

Dec. 12, 2018. Updated Dec. 13, 2018.

Editor: This bill was enacted after being signed by the President on December 21, 2018.