July 2006 Edition

In This Month's Issue:


CMS Issues Nationwide Memo on "Patient Parking" and EMTALA

Deadline for Comments on Proposed Rule Rapidly Approaching

Pennsylvania's State EMS Conference a Top Event

Special PWW Seminar in Sacramento on August 21st

Get Ready for the Medicare Payment Freeze

New HIPAA Enforcement Rule Released

Medicaid MCO Reimbursement Effort

PWW Obtains Favorable Medicare Decision

ABC3 and "Billing Boot Camp" Filling Up Fast

CMS Issues Nationwide Memo on "Patient Parking" and EMTALA


On July 13, 2006 CMS officials distributed a memo to all state agencies that enforce EMTALA informing them that the act of allowing EMS patients to be "parked" in a hospital hallway could be a violation of EMTALA. Patient parking occurs when ambulance services arrive with their patient, but the hospital staff does not immediately come to assess the patent to accept care. In these cases, ambulance services are often directed by ER staff, to "park over there along the hall until we can get to you." But according to CMS Director of Survey and Certification Group Robert Hamilton in this nationwide communication, "This practice may result in a violation of the Emergency Medical Treatment and Labor Act (EMTALA) and raises serious concerns for patient care and the provision of emergency services in a community."  To read the memo in its entirety, CLICK HERE.


Well, it’s about time! We have been advocating this point for several years in assisting ambulance services as they end up as the "pawns" in an overcrowded and understaffed emergency department. The CMS letter goes on to state that not only may patient parking be illegal under EMTALA, but hospitals may violate other laws by not promptly accepting ambulance patients, or not promptly conducting medical screenings and stabilization on emergent patients. "…this practice may also result in a violation of 42 CFR 482.55, the Conditions of Participation for Hospitals for Emergency Services, which requires that a hospital meet the emergency needs of patients in accordance with acceptable standards of practice," Hamilton stated.


Hamilton advised all state survey agency directors that a hospital has an EMTALA obligation as soon as a patient "presents" at a hospital's dedicated emergency department, or on hospital property other than the dedicated emergency department, and a request is made on the individual’s behalf for examination or treatment of an emergency medical condition. He points out that a patient who arrives via EMS meets this requirement when EMS personnel request treatment from hospital staff. Hospitals must provide a screening examination to determine if an emergency medical condition exists and, if so, provide stabilizing treatment to resolve the patient’s emergency medical condition. Once a patient presents to the dedicated emergency department of the hospital, whether by EMS or otherwise, the hospital has an obligation to see the patient, as determined by the hospital under the circumstances and in accordance with acceptable standards of care.


Finally, Hamilton notes that CMS recognizes the "enormous strain and crowding many hospital emergency departments face every day" but that "parking" patients is not the solution and that "refusing to release EMS equipment or personnel jeopardizes patient health and impacts the ability of the EMS personnel to provide emergency services to the rest of the community."


For questions on this memo, the memo suggests you contact Donna Smith at (410) 786-3255 or by email at Donna.Smith@cms.hhs.gov. The effective date of the memo is August 13, 2006. CMS states that the information contained in this announcement should be shared with all survey and certification staff, surveyors, their managers, and with managers who have responsibility for processing EMTALA complaints.


Steps to Take NOW:


  • Assess the Problem. Don’t always go by rumor and subjective comments. Monitor the time it takes for your EMS staff to transfer care of the patient to the ED staff. Make a list of specific problems with actual times and the impact the delay in the ED had on your operation. In other words, don’t scream to your hospital about a problem if you don’t have one. Some hospitals have made significant strides in reducing diversion and patient parking issues.

  • Talk With Your EMS Council or State EMS Agency. If you are experiencing the problems, others are too. A coordinated approach to resolution may be the key to fixing the problem---and it takes the heat off of individual ambulance services. Some regions have made great strides and have develop diversion protocols to address the overflow issue and the impact on EMS . These protocols may need to be modified to specifically address the patient parking issue.

  • Provide Information. Meet with your hospital about the patient parking problem (if it exists) and keep it professional. Maintaining a positive approach to the situation is more likely to help you resolve the problem. Provide the hospital with specific data (see step one) and a copy of the new CMS memo as part of your communication with them.

  • Report Specific Problems to the Hospital. If "preplanning" and the proactive approach does not work, begin to provide objective reports of patient parking incidents to the hospital. The best person to contact will likely be the hospital’s general compliance officer.

  • Report to the State Survey Agency or CMS. State agencies may investigate potential hospital violations. Most states have a group within the state health department that handles hospital inspections and surveys. These groups may also process EMTALA-related complaints. Complaints can also be filed with the Centers for Medicare and Medicaid Services (CMS) regional office for your area. CMS is the federal agency with EMTALA enforcement responsibilities.

Deadline for Comments on Proposed Rule Rapidly Approaching


The comment period for the proposed changes to the Medicare ambulance regulations is July 25, 2006. These proposed rules would tighten reimbursement rules for Specialty Care Transports (SCTs) and emergency responses, and would make changes to the way that rural areas are determined for reimbursement purposes. Public comments will be accepted through July 25, 2006 at 5:00 p.m. EST. This is not a mailing date as the comments must be received by the deadline


The proposed rule was published in the Federal Register on May 26, 2006. For a copy, CLICK HERE. The key areas addressed by the proposal include the adoption of revised designations for rural and urban reimbursement, revised definition of "emergency response," and a revised definition for "specialty care transport."


You can submit your comments as follows:


  • Electronically, go to: http://www.cms.hhs.gov/eRulemaking. Then scroll to the ink that says "submit electronic comments on CMS regulations with an open comment period". Then select "CMS-1317-P." Attachments preferred in Microsoft Word.

  • By mail, write to: Centers for Medicare and Medicaid Services, Department of Health and Human Services, Attention CMS 1317-P, P.O. Box 8017 , Baltimore , MD 21244-8017 . You should submit the original plus two copies of your comments.

  • By express or overnight mail, send to: Centers for Medicare and Medicaid Services, Department of Health and Human Services, Attention CMS 1317-P, Mail Stop C4-26-05, 7500 Security Boulevard , Baltimore , MD 21244-1850 . You should submit the original plus two copies.

  • By hand delivery or courier, deliver your comments to: 7500 Security Boulevard , Baltimore – call (410) 786–7197 in advance and then comments may be delivered to Room 445-G, Hubert Humphrey Building , 200 Independence Avenue SW , Washington , DC . You should submit the original plus two copies of your comments.

 The American Ambulance Association is providing a formal written response on behalf of its members. PWW agrees with the points raised by the AAA in their response. The AAA has also developed a model response letter that the ambulance and EMS industry may use to craft your own response. For information, go to www.the-aaa.org or contact Tristan North at tnorth@the-aaa.org.


Pennsylvania’s State EMS Conference A Top Event


There is still time to register for Pennsylvania ’s 29th EMS Conference to be held August 8-12, 2006 at The Penn Stater Conference Center in State College , PA. PWW Attorneys Steve Wirth and Doug Wolfberg are among the featured national speakers presenting at this conference which is jam packed with dynamic and timely seminars for everyone.


Registration is available online by visiting www.pehsc.org. A discount is available for anyone who registers online with a credit card. For a hard copy brochure, contact the Pennsylvania Emergency Health Services Council at 717-795-0740. Continuing education credits will be available.


Special PWW Seminar in Sacramento, California on August 21st


Register now for a special, full-day EMS law seminar in Sacramento, California featuring Doug Wolfberg. The seminar is sponsored by the Sacramento Fire Department and will be held on August 21, 2006 at Shriner's Hospital. This seminar will feature information on documentation, recruitment and retention, advanced HIPAA, case studies and more. For more information, contact Margaret Ong at the Sacramento Fire Department, (916) 264-8101 or Mong@sfd.cityofsacramento.org.


Get Ready for the Medicare "Payment Freeze"


A brief "hold" will be placed on Medicare payments for all claims during the last 9 days of the Federal fiscal year (September 22 through September 30, 2006). These payment delays are mandated by section 5203 of the Deficit Reduction Act of 2005. Unfortunately, no interest will be accrued and no late penalties will be paid to any ambulance service due to the hold. All claims held during this time will be paid on October 2, 2006.


The hold will only apply to claims that are actually subject to payment during the hold period. CMS indicates that the payments will not be staggered and no advance payments will be allowed during this 9-day hold. For more information, please view the MLN Matters Article at: www.cms.hhs.gov/MLNMattersArticles/downloads/MM5047.pdf


Our suggestion: Get your claims submitted early in September and keep your processing up to date! Remember the 14 day payment floor for electronic claim submission. If the "14th Day" falls in the hold period, you won’t get paid until after the hold is over! ALL claims will be held, as long as they are in the system for payment. Plan for your cash flow accordingly.


New HIPAA Enforcement Rule Released


On February 16, Health & Human Services (HHS) released the Final "Enforcement Rule" which is the follow-up to the Transactions & Code Sets, Privacy, and Security Rules of HIPAA. This Enforcement Rule outlines the complaint reporting and investigation process, responsibilities of covered entities, civil money penalties, and hearings related to imposition of civil money penalties. It became effective on March 16, 2006, and some speculate that actual civil money penalties ("CMPs") will follow, now that a formalized enforcement plan is in place.


In order to avoid CMPs, covered entities are reminded to perform and keep records of internal audits and conduct internal complaint investigations. But, direct government complaints and investigations are permitted, and likely. In cases where the government determines that a covered entity has violated an administrative simplification provision, the Enforcement Rule states that CMPs are warranted. However, the rule also outlines factors to consider in determining CMPs and presents some "affirmative defenses." These provisions allow mitigating circumstances, such as examination of whether there was intent and whether the violation was "beyond the control of the covered entity," to be factors when determining the amount of the CMP. In cases where a covered entity did not know there was a violation, or took adequate steps to correct the violation after it was discovered can also reduce or eliminate a CMP.


Because of these safeguards, and the extensive hearings and appeals process that is outlined, adequate auditing, monitoring, and self – investigating of complaints of possible violations are steps for covered entities to take to avoid CMPs. This final rule is a reminder that HIPAA compliance is more than having the Compliance Plan in place – it must be actually applied. Routine audits and efforts to test implemented safeguards, prevent improper releases of PHI, and comply with the requirements of the Privacy and Security Rules (including conducting risk assessments) can help prevent CMPs.


Medicaid MCO Reimbursement Effort


Through an interesting state law, a recent State Supreme Court Decision, and the interplay between the Medicaid program and the Managed Care Organization ("MCO") system in Pennsylvania , a unique reimbursement effort has begun. Language in the Managed Care Statute allows emergency service providers that are not contracted (with a MCO) to be paid on a "reasonably necessary" cost basis. This amount should exceed the Medicaid fee-for-service schedule that the MCOs have used. The Pennsylvania Supreme Court outlined this argument in a recent case that challenged an attempt to cap the payment amount for non-contracted providers to the Medicaid fee for service rate.


Any Pennsylvania ambulance provider that performed emergency services to MCO enrollees, and had no contract in place with an MCO should contact PWW for additional information in joining a potential settlement negotiation and/or group litigation. Other states that believe similar language may exist that essentially affords non-contracted providers a better reimbursement rate than which is presently being paid by MCOs should also contact us for a possible assessment of state laws and cases to see if similar litigation may be warranted. For more information, contact Steve Wirth, Doug Wolfberg, or Dan Pedersen.


PWW Obtains Favorable Medicare Decision


Page Wolfberg & Wirth recently obtained a favorable decision from an Administrative Law Judge in a Medicare Appeal. The Carrier sought a significant recoupment, based upon an extrapolation calculation initially warranted by a high error rate from a probe sample. The ambulance service had previously appealed the probe sample, and a hearing officer determined that the error rate was not as high as the Carrier originally calculated. The Administrative Law Judge ruled that the revised error rate did not warrant use of extrapolation, and ruled that the Carrier could only recoup the actual overpayments from the sample that was reviewed. PWW attorney Dan Pedersen was the principal attorney handling this appeal.


There are new legal provisions contained in the MMA that limit the use of extrapolation in an overpayment situation. This case and the recent changes in the law serve as a reminder of the importance of appealing the probe sample and the very basis that lead to extrapolation of the results. If the probe sample is in error, the Statistically Valid Random Sample ("SVRS") could be nullified if the probe’s error rate is later determined to be less than originally calculated. The very basis of why the carrier extrapolated the results may also be challenged on appeal. PWW has experience in assisting ambulance services with Medicare appeals. Please contact Doug Wolfberg or Steve Wirth if you have a Medicare overpayment appeal with which you’d like legal assistance.


ABC3 and "Billing Boot Camp" Are Filling up Fast


Get your registration in now for the full-day, completely revised ABC3 conference set for October 25, 2006 in Hershey , PA --- Chocolatetown USA ! The ABC3 conference is the most popular ambulance reimbursement and compliance conference in the country - nearly 1,000 people attended our previous ABC3 conferences last Spring. Our new Fall ABC3 program was designed entirely from the comments and suggestions we received from past ABC3 attendees and others - these are the topics you and your peers have asked for!


To download a complete brochure and register for this event online, CLICK HERE.


ABC3 is designed to help you maximize your bottom line by improving your billing - but, importantly, the goal of ABC3 is to help you achieve your reimbursement goals while remaining fully compliant with all of the complex laws and regulations that pertain to ambulance billing. That's why the theme of ABC3 is "Improving the Bottom Line of America's Ambulance Services - With Integrity." TM


This Fall's conference features an exciting new addition! We are adding an all-new, full day preconference workshop - the "Billing Boot Camp" - on October 24th. We have received dozens upon dozens of requests for a workshop dedicated to training new billing personnel - and as a refresher on billing fundamentals for seasoned billers. Don't miss this exciting new workshop!


Call us toll free at 877-EMS-LAW1 (877-367-5291), or visit www.pwwemslaw.com for a complete brochure and registration form - or CLICK HERE to go directly to the brochure for more information on registration and the schedule of events. Here’s what some of the participants had to say about our ABC3 conferences last Spring:


  • "Very dynamic speakers that know the business!"


  • "The entire program and speakers were terrific and informative."


  • "I really enjoyed your speakers and the presentations were very easy to follow."


  • "The first seminar I wanted to stay and not run out on! Thanks!"


  • "The presentations and speakers conveyed pertinent topics with in-depth knowledge along with a personal and humorous approach to make this conference worth every penny."