Anti-dumping law flashes a yellow light on emergency cases - patient dumping

Healthcare Financial Management,  March, 1991  by Lawrence A. Laddaga,  Jeffrey A. Haynes

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Amendment uncertainty. The medical screening requirement also is plagued by vagueness in amendments to the anti-dumping law. In 1989, Congress amended the screening requirement to say that "the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists." (f)

Unfortunately, the phrase "ancillary services routinely available to the emergency department" is not defined within the amendment. Although this phrase probably would encompass basic laboratory work, X-rays, and other services, the statute does not indicate the extent of other necessary services meeting the requirement. Ancillary services available to hospital emergency departments also may vary, making it difficult to ascertain if the treating hospital is complying with the statute.

Using caution. given the potential for additional legal action over questions involved in the anti-dumping law,hospitals should begin to take necessary measures to ensure their compliance.

Hospitals should consider asking their attorneys to review transfer policies and procedures. An attorney should make certain that a facility is operating within the statute's guidelines, particularly in cases where it is questionable whether a patient's condition has been stabilized.

An attorney also should review a hospital's informed consent procedures in cases involving patient transfer, even when a transfer is requested by the patient instead of the physician. Attempts should be made to obtain a patient's written consent before arranging a transfer.

In addition, emergency room registration employees should be cautioned not to turn away patients without first performing some type of preliminary examination. Emergency rooms with registration policies that require first determining whether a patient has health insurance must not refuse or delay treatment because of a negative response to the question. Policies that require advance payment, refuse to accept Medicaid, refuse to accept patients who do not have personal physician on staff, or deny treatment to "undersirable" patients (such as intoxicated or homless persons) should be terminated because they are almost certain to violate anti-dumping provisions. (g)

Meetings should be arranged with emergency room staff physicians to clearly distinguish emergency cases from non-emergency cases. Emergency room staff physicians should establish the parameters for cases that may not necessarily present emergencies but that require some screening to eliminate the possibility of more serious illnesses.

(a.) In order of appearance: Thornton v. Southwest Detroit Hospital, 895 F. 2d 1131 (6th Cir. 1990) Bryant v. Riddle Memorial Hospital, 689 F. Supp. 490 (E.D. Pa. 1988) Evitt v. University Heights Hospital, 727 F. Supp. 495 (S.D. Ind. 1989) and Stewart v. Murick, 731 F. Supp. 433 (D. Kan. 1990).