Consumer groups and some lawmakers fear that two new government reports that largely exonerate healthcare providers for violating Medicare and Medicaid regulations will dampen ongoing efforts by the feds to fight fraud against patients and the government health insurance programs.
The reports, both prepared by the General Accounting Office and released last week, said most hospitals and physicians don't intend to break the law but some instead are led astray by confusing regulations and unscrupulous consultants.
The first GAO report found that the "overarching concern" about the patient-dumping law among physicians and hospital administrators is uncertainty about the extent of their responsibility. More than 40% of emergency-room physicians and more than 60% of ER department directors said parts of the 15-year-old Emergency Medical Transfer and Active Labor Act, or EMTALA, are unclear.
ER doctors say the law and the way it is enforced take a noble idea and turn it into a regulatory minefield. Hospitals risk getting kicked out of Medicare if they violate the statute, which requires them to screen, stabilize and, if necessary, transfer any patient that comes to them.
More relevant for many hospitals, administrators and their physicians may find themselves being investigated for suspected offenses, despite their best efforts to abide by the law. In fiscal 1999, HCFA (now the Centers for Medicare and Medicaid Services) conducted 431 investigations and found 215 violations.
Working under EMTALA has complicated what was once routine, providers say.
"The overall concept is not confusing, but when you have unusual occurrences, it gets confusing," said Evelyn Manetta, M.D., medical director for emergency services at Carilion Medical Center in Roanoke, Va.
What triggers an investigation is often difficult for providers to predict and may vary from region to region. Carilion was investigated after an ER clerk mistakenly directed a man to the system's occupational health service a mile from the hospital. Carilion was found not to be in violation but was investigated by the state health department.
"There are so many situations where there really was no violation, where you are defending an action that was relatively innocent," Manetta said.
Some say physicians and hospitals are out of line with their complaints about the law's complexity.
"In the early days that might have made sense, but (EMTALA) has been on the books for 15 years," said Sidney Wolfe, M.D., director of Public Citizen's Health Research Group, a consumer advocacy organization based in Washington.
Manetta said that although interpretive guidelines issued by the CMS in 1998 answered some questions, they raised new ones.
In addition to confusing rules, differing standards of enforcement also cloud hospitals' approach to EMTALA. The American Hospital Association said it has urged the CMS to assemble an advisory group to standardize interpretation and enforcement.
The CMS said it plans to provide more guidance and re-establish an advisory group. In a letter to congressional leaders last month, CMS Administrator Thomas Scully said his agency intends to revise EMTALA regulations to ease the burden on hospitals, but the CMS declined to elaborate on those revisions for this story.
"There are problems with enforcement; it is getting better, but we still have a long way to go," Wolfe said.
Consulting or crafting?
In the second GAO report, the cottage industry of "revenue recovery" got a wake-up call at a Senate Finance Committee meeting last week at which the GAO revealed the results of an undercover probe. The investigation found that some reimbursement consultants are advising providers to upcode claims, keep overpayments that have been discovered through compliance programs and limit services to Medicaid beneficiaries.
The AHA said its compliance program should steer hospitals away from advice on how to "game" Medicare for higher payment.
"The AHA compliance program specifically makes it clear that this type of conduct by consultants is absolutely unacceptable," said Joseph DiGenova, a lawyer who represents the AHA on fraud matters. "The compliance program says that this type of advice should not be followed," and added such advice is "highly unusual."
The head of the national organization representing healthcare consultants also defended his industry, saying its credentialing procedure guards against fraudulent behavior.
"We have a code of ethics . . . to live up to," said David Stumph, executive director of the American Association of Healthcare Consultants in Glenview, Ill.
Charles Grassley of Iowa, the Senate Finance Committee's senior Republican, requested the undercover probe last year when he was chairman of the Senate Special Committee on Aging. The GAO investigators taped portions of meetings with consultants.
"The advice (given by consultants) raises concerns that some payments previously classified by (HHS) as improperly paid healthcare insurance claims may actually stem from conscious decisions to inflate claims," said Robert Hast, managing director of the GAO's office of special investigations. The GAO has recommended possible monitoring of consultant seminars and has warned providers to use "good business sense" when dealing with consultants.
And consultants might not be the only ones who get caught. Numerous hospitals have settled allegations of false Medicare claims after following the advice of billing consultants. One such consulting firm was the now-defunct Metzinger and Associates of Voorhees, N.J., which advised hospitals on how to maximize reimbursement and received a cut of the added revenue. At least 23 hospitals were caught in that dragnet.
The GAO's reports could blunt congressional efforts to roll back some antifraud programs at HHS and the U.S. Justice Department. For example, legislation introduced in March by Sen. Frank Murkowski (R-Alaska) would bar HHS from imposing penalties of demanding the return of an overpayment while the provider's appeal is under way. Parts of the legislation, supported by the American Medical Association, could be incorporated into a Medicare reform bill expected to be introduced in the Senate Finance Committee in July.
On a similar track, the House Ways and Means Committee is preparing regulatory reform legislation that would limit the federal government from demanding repayment from providers based on the overpayments identified in a small sample of claims (June 25, p. 4).
The AHA, which supports only the parts of that legislation that improve providers' ability to challenge regulations, said that regardless of whether the measures pass, its compliance program is designed to steer hospitals away from advice on how to game Medicare for higher payment.
But others, pointing to the new government reports, say such efforts to leash government fraud-fighters would be misguided.
"I am concerned about pending legislation that might inadvertently make it more difficult for the federal government to maintain the integrity of the Medicare trust funds," said Senate Finance Committee Chairman Max Baucus (D-Mont.).