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ABNs and EMTALA

Compliance Monitor, June 10, 2005

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Q: My question and concern is that EMTALA strictly prohibits emergency departments (ED) from obtaining financial information prior to providing medical screening examinations. Part of that medical screening exam has been defined to include any diagnostic testing that may be required to rule out an emergent medical condition.

How does one go about getting an Advance Beneficiary Notice (ABN) in the ED prior to the diagnostic testing that is being done to rule out an emergent medical condition without running the risk of EMTALA violation?

A: The EMTALA rules as of September 9, 2003, state that a hospital "may not delay providing an appropriate medical screening examination . . . in order to inquire about an individual's method of payment or insurance status" (42 CFR 489.24(d)(4)(i)).

Further, a hospital may follow "reasonable registration processes for individuals for whom examination or treatment is required by this section, including asking whether an individual is insured and, if so, what that insurance is, as long as that inquiry does not delay screening or treatment. Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation" (42 CFR 489(d)(4)(iv)).

These provisions permit a hospital to obtain insurance information and follow "reasonable registration processes," such as obtaining an ABN, as long as screening-and, if necessary, treatment-is not delayed.

These provisions were added to clarify prior confusion about when a hospital could gather financial information. Hence, you can't stop screening, including diagnostic testing, to inquire about insurance or otherwise follow reasonable registration processes, but if there's an opportunity during screening (e.g., the patient is waiting for a diagnostic test), the hospital may-in general and depending also on the patient's condition-inquire about insurance, obtain payment documentation, etc.

The hospital should also have policies in place that set forth these parameters.

This question was answered by Lisa W. Clark, JD, a partner at Duane Morris, LLP, Philadelphia.

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