Volume 47, No. 1 January 1991

``DUMPING'' MANDATED BY LAW

Several methods might be used to provide medical care to patients who are uninsured and otherwise unable to pay:

(1) payment through taxation, whether in public hospitals or publicly funded programs such as Medicare or Medicaid;

(2) encouraging charitable care, whether through peer group pressure, religious exhortation, tax credits, or relief from liability exposure; and

(3) arranging loans for those who are expected to be able to earn money after their health is restored. (This method, while favored for ``luxuries'' like a college education, is seldom considered for medical services).

Taxation has political limits. Although the majority of Americans say they favor equal access to health care without regard to ability to pay, only 22% indicated a willingness to pay more than $200 per year for a universal health plan (N Engl J Med 323:208-212, 1990). There is much less support for increasing Medicaid expenditures. The public sees Medicaid primarily as a welfare rather than a health care program, and 41% believe that the nation is already spending too much on welfare (JAMA 259:3587-3593).

Charity has practical limits. Private, voluntary hospitals, which provide about 60% of the nation's uncompensated care, have been forced to operate more like businesses, with increasing restrictions on their ability to cross-subsidize. Thus, they have been under increased pressure to transfer patients for economic reasons.

Public hospitals that receive such transfers have complained of an ``epidemic of dumping.'' In addition to concern about their negative operating margin (which averaged 5% in 1987), hospitals cite risks to the health of the transferred patients. There are numerous anecdotes about appalling mistreatment of the indigent, but few statistics about actual, avoidable adverse outcomes. Parkland Memorial Hospital in Dallas undertook a two- year study of interhospital transfers, finding that 28% of the transfers were unexpected and 30 patients (1.6% of 1,897) reached Parkland in an unstable condition, 17 from facilities that had the equipment and staff to stabilize them. Other studies showed a much higher percentage of unstable patients-up to 27%. None defined the term ``unstable'' (J Legal Med 10:433-478, 1989).

In the common law, there are several rationales for holding hospitals to a duty to treat patients in an emergency-the only recognized nonstatutory right to medical care. The most stringent doctrine was established by the Supreme Court of Arizona in the case of Guerrero v. Copper Queen Hospital. Citing state regulations requiring all general hospitals to maintain an emergency room, the court held that public policy dictated that a hospital (even a private hospital) could not deny emergency care to anyone without cause.

Many states have passed laws related to patient transfers. The Texas statute served as a model for the federal ``anti- dumping'' provision in the 1985 Consolidated Omnibus Budget Reconciliation Act (COBRA). The Texas law requires stabilization of patients prior to transfer; acceptance by the receiving hospital before the patient is sent; patient consent to the transfer; and the transfer of adequate records along with the patient. Although a range of sanctions, from misdemeanor to felony, is prescribed, these penalties have seldom been imposed. Compliance is perceived to be excellent; Parkland filed only seven complaints between 1985 and 1989 (ibid.)

The COBRA applies a fourth method of assuring medical care, when tax revenues are inadequate and charity runs out: the use of force, as by threatening penalties substantially worse than the loss expected from treating an uninsured patient (also see p. 3). COBRA forbids transfer of ``unstabilized'' ``emergency'' patients (terms undefined), unless the patient requests the transfer or certain conditions are met, including certification that the expected medical benefits to the patient outweigh the risk of transfer.

To address an underreporting problem, HHS would require the receiving hospital to report suspected ``dumping'' within 72 hours, under pain of termination of the hospital's Medicare provider agreement.

To address the government's failure to pursue violators, COBRA has a private attorney general provision, allowing a private cause of action to both individuals and receiving hospitals. Congressman Stark has proposed legislation like that already enacted by California requiring the posting of flyers to improve beneficiary awareness. California also permits reasonable attorney's fees to litigants, in order to create an incentive for attorneys to assist ``dumping'' victims even when monetary damages are not great (ibid).

New amendments to COBRA, which took effect in July, extend liability for ``dumping'' to on-call physicians, even if they don't answer their telephone or appear at the hospital (Medical Economics 11/26/90), and double the fines to $50,000.

Is ``dumping'' a Newspeak term? It is used to apply to transfers in one direction only: from the private sector to the public. It is not used when a public facility or HCFA decides that care is ``unnecessary,'' as when Parkland or DC General determine that 38% of ``dumped'' patients do not need admission after all (J Legal Med, op. cit.)

What is the term for an emergency room that is forbidden to close its doors or to transfer patients, or for a physician forced to work without compensation? Could it be a synonym for society's legally mandated dumping ground?

A Deal ``Good for a Limited Time Only''

Physicians have only until the end of 1990 to decide whether or not to sign a participation agreement with Medicare for 1991. Aetna, the Medicare carrier for Arizona, has some advice: ``If undecided, elect to participate.''

To help doctors decide, consultants advise them to ``crunch the numbers.'' However, there will be no numbers available to crunch until at least a month after the deadline for making the decision. Aetna explained, ``sufficient lead time was not available for us to provide you with 1991 fee screen amounts or applicable charge limits during this enrollment period.''

Potential advantages for nonparticipating physicians (less paperwork and the ability to balance bill) are being eliminated or reduced by law. And participating physicians may actually receive greater advantages than those legislated by Congress. By law, participants' claims are processed at least seven days faster, but the 90- to 120-day accounts receivable invariably have twice as much outstanding for nonparticipating practices (Medical Economics 11/26/90).

Even when the fee screens become available, physicians cannot rely on them. Aetna of Georgia is attempting to recoup $2 million-plus interest-that it overpaid physicians as a result of failing to enter recently reduced fees into the computer. (Atlanta physicians have challenged the recoupment effort in court; a decision is pending.)

Aetna officials said they were not going after patients of nonparticipating physicians ``because it would be too cumbersome to track down the small amounts of money paid to the program's thousands of beneficiaries'' (Atlanta Journal and Constitution 12/4/90). However, physicians should not rely on this statement; HCFA could try to transfer the cumbersome procedure to nonparticipants' offices.

Some Georgia ophthalmologists would like to say ``shove the whole Medicare program'' (ibid.)-if they had an alternative. Ophthalmologists currently receive 45% of their gross income from Medicare. For all physicians, Medicare accounted for an average of 23% of the gross, up from 17% in 1981 (Medical Economics 11/26/90).

Participating physicians will be allowed a short period to disenroll after the fee screens are released. HCFA ``wanted to be flexible...for physicians who didn't know how adversely they would be affected'' by the new fees.

From Capitol Hill

EKG Interpretations of Zero Relative Value. As of January, 1992, physicians will no longer be able to receive Medicare payment for interpreting an EKG if the test is ``performed or ordered to be performed...as part of or in conjunction with the visit or consultation.'' And since the interpretation will still be considered a ``covered service,'' physicians will not be able to charge patients for it. This provision, which was slipped into the FY 91 budget reconciliation, is expected to save Medicare $725 million over the next five years. Only about 20% of routine EKG readings will probably qualify for payment. (The definition of ``routine'' is likely to be a point of contention.) The rationale for the change is that physicians do not receive extra payment for interpreting other clinical diagnostic tests.

``Anti-Hassle'' Legislation. The budget law included most of

the provisions of the ``anti-hassle'' bill authored by Roy Rowland (D-GA) and Max Baucus (D-MT), including reciprocal billing arrangements for covering physicians, but not including the ban on charging for information. Screens used to decide whether doctors are providing too much care will be released in six carrier regions, so that HCFA can monitor whether removing the veil of secrecy triggers overutilization, as HCFA Administrator Gail Wilensky fears it might.

More Fee Freezes and Reductions. The Omnibus Budget Reconciliation Act provides that physician fees, other than for primary care services, will be frozen at current levels through 1991. For primary care services, a 2% increase is allowed. ``Overvalued'' procedures will be subject to deeper cuts. Additional restrictions are placed on assistant surgeons. The fee for the assistant cannot exceed 16% of the fee schedule amount for the global surgical service, and no payment will be made at all if fewer than 5% of such surgical services, nation- wide, involve a physician acting as assistant. A ``limitation on beneficiary liability'' states that the 1991 payment limit for ``evaluation and management services'' provided by nonpar- ticipating physicians may be up to 140% of the 1991 recognized payment amount, instead of the proposed 125%. This will reduce the anticipated drop in primary physicians' payments pending implementation of the relative value scale.

The cost of running a medical practice leaped 19.8% last year, the biggest one-year increase in the 1980s, although the Consumer Price Index climbed only 4.6%. The largest increase was payroll for nonphysician assistants (up 11.6%) (Medical Economics 11/12/90).

Computerized Reviews Initiated by PROs. Seven PROs-in Alabama, Arizona, Colorado, Connecticut, Iowa, Utah, and Wisconsin-have been using a new automated system called the Uniform Clinical Data Set (UCDS) since Nov 1. The computer algorithms incorporate 1600 data elements against which reviewers abstract medical records. HCFA intends the new system to be ``budget neutral'' compared with the current $1 billion three- year PRO expenditures. At present UCDS results in a 48% referral rate to physician reviewers, higher than the average for manual review by nurses. Payment denials are running higher than the average of 2% under manual review.

UCDS will make possible the storage of vast amounts of information that is currently lost after the review is completed. This could be useful for developing practice guidelines. And HCFA Administrator Gail Wilensky notes the importance of ongoing monitoring for ``aberrant behavior'' (Physicians Financial News 11/15/90).

Nuclear Medicine Gets Temporary Reprieve from Clean Air Bill. A 24-month exemption from adherence to the emission standards signed into law Nov 15 (PL 101-549) is expected to save hospital nuclear medicine departments $6 million. During the two years, the Environmental Protection Agency (EPA) will study whether nuclear medicine emissions, now regulated by the Nuclear Regulatory Commission, are within an ``ample margin of safety.''

According to AHA Executive Vice President Paul Rettig, dual controls on radionuclide emissions would ``dramatically raise health care costs with no real benefit to either patients or community'' (Health Legislation 11/21/90). The negative impact would be greatest for treatments for hyperthyroidism and thyroid carcinoma.

Fifth Circuit to Hear ``Patient Dumping'' Case

The US Court of Appeals for the Fifth Circuit will hear a Texas physician's appeal of a $20,000 penalty imposed by the Department of Health and Human Services (HHS) for the alleged violation of the federal ``patient dumping'' statute, the Bureau of National Affairs reports in its Medicare Report. Oral arguments before that court will probably be heard in March, 1991.

The federal ``patient dumping'' statute, formally entitled the Emergency Medical Treatment and Active Labor Act (codified at Title 42, US Code, Section 1395dd), requires every hospital that participates in the Medicare program to provide a screening examination and treatment for emergency medical conditions and women in labor regardless of the person's ability to pay for such treatment. It further prohibits the transfer of an indigent patient until any existing emergency medical condition has been ``stabilized'' or, for a woman in active labor, the baby has been delivered. The statute also requires hospitals participating in the Medicare program to keep a list of on-call physicians, who are required to treat indigent patients at the request of an emergency room physician if the patients are in active labor or have an emergency medical condition. Hospitals and physicians are subject to civil monetary penalties of $50,000 for each violation of the statute. The statute also creates a private civil cause of action that allows any ``dumped'' patient to sue the hospital for damages.

In June, 1990, the Departmental Appeals Board of HHS affirmed an administrative law judge's finding that the Texas physician, Dr. Michael L. Burditt, knowingly violated the patient dumping statute by transferring a woman who had high blood pressure and was nine months pregnant to another hospital more than 150 miles away. The Texas Medical Association is supporting Dr. Burditt in his appeal of the decision.

According to BNA's Medicare Report, Dr. Burditt argues in his appellate brief that the patient dumping statute violates the Taking Clause of the Fifth Amendment to the US Constitution, which prohibits the government from taking private property for a public purpose without the payment of just compensation. The brief maintains that the statute forces physicians to provide services free of charge to remedy the ``public'' problem of indigent patients. The brief also argues that ``because [the statute] compounds the taking problem with the imposition of heavy fines, it appropriates an identifiable segment of physicians' property without compensation and is therefore unconstitutional'' (Medicare Report 721, Bureau of National Affairs 1990).

The brief also notes that while the US Supreme Court has not directly addressed the issue of whether professional services constitute ``property'' for the purposes of the Takings Clause of the Fifth Amendment, it has ruled that professional services constitute ``property'' for purposes of the Due Process Clause of the Fifth Amendment.

In addition to the Takings problems that plague the patient dumping statute, at least one legal commentator has argued that the statute also has possible constitutional deficiencies under Article 1, Section 8 of the US Constitution, known as the Taxing and Spending Power (see McClurg, ``Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping,'' 24 Wake Forest L Rev 173 (1989). The Taxing and Spending Clause requires that conditions attached to a federal program be related to the federal interest in the particular national program to which the condition is attached. Under the federal patient dumping statute, a hospital's ability to receive Medicare funding is contingent upon its compliance with the statute. The problem with this contingency is that Medicare recipients are likely to constitute only a small percentage of ``dumped'' patients. A minority of persons seeking emergency treatment will be Medicare patients, and there is little incentive to ``dump'' them because Medicare pays for at least some medical services. Instead, the vast majority of ``dumped'' patients will be non-Medicare patients who simply have no source of payment, government or other. Thus, the relationship between the condition-comply with the statute or lose Medicare funding-and the federal purpose of the expenditure-adequate health care for the elderly and others eligible under Medicare-is tenuous at best.

The Limited Legal Consultation Service will continue to follow the developments in the Texas case in the coming months.

Psychiatrist Acquitted of Medicaid Fraud

After only one hour's deliberation, a jury acquitted New York psychiatrist Eugenin Liteanu, MD, of five felony counts of Medicaid fraud carrying a maximum prison sentence of four years per count.

The prosecutor alleged that Dr. Liteanu had billed for full sessions when a number of sessions had lasted for less than 30 minutes. Defense counsel contended that the sessions were deliberately cut short by a fictitious patient, a wired Medicaid investigator, and that Dr. Liteanu had followed the standard professional procedure of billing for the entire scheduled session. Further, counsel stated that the jury was outraged by the use of taxpayer's money on a case that involved only about $90 even if one believed everything the prosecutor said.

Medicaid chief Edward J. Kuriansky stated that Liteanu's case was similar to 27 others, all of which resulted in convictions. An expert witness for the defendant, noting that the prosecution had tried to extract $20,000 from Liteanu before the trial, speculated that some of these convictions might have actually been legalized extortion.

Dr. Liteanu said that even his early experience of Nazi and Soviet rule in Romania did not prepare him for the Medicaid investigation.

``In America, I didn't expect this to happen. In my wildest imagination I couldn't conceive to be entrapped by the Department of Social Services.''

Liteanu warned that the tactics used by the Medicaid fraud units create suspicion and mistrust between patient and psychotherapist and make psychiatrists more reluctant to treat Medicaid patients.

The jury decision, Liteanu said, shows ``the triumph of our democratic system of justice in the United States. If we don't fight for our democracy, we will lose it.''

excerpted from H Fishman, Psychiatric Times 12/90

The Trouble with Canada

The chapter on Canada's sick health care system, written principally by William Goodman, MD (author of AAPS pamphlets on the same subject), has been called one of the best in William Gairdner's book The Trouble with Canada. As one reviewer states, ``it addresses the largest area of government expenditure and arguably the largest area of waste and confusion....In Canada, the state now pays quasi-employees to care for patients....People with unhealthy lifestyles are being subsidized by those with healthy lifestyles.''

The book has been on the Canadian non-fiction best-seller list for seven months. It can be ordered for $31.95 (US) from Stoddart Publishing, 34 Lesmill Road, Don Mills, ON M3B 2T6, Canada.

Insights from Moscow

Some gems from fall issues of Moscow News:

Not only new thinking but common sense call on us at long last to shed the absurd practice by which government agencies make their own laws. This refers to any agency and particularly to such a special agency as the KGB....
Alexander Larin

The two million Cubans [in Miami], living under market conditions, produce a GNP valued at $30 billion....The GNP of Cuba, with its population of ten million, amounts to a mere $8 billion.
Alexander Makhov

The policy of the state is to issue a state order, but not provide the raw materials. The state should pay us for its failure to honour its commitments. In actual fact, we are fined for not fulfilling contracts through someone else's fault....

The state as a partner is omnipotent and irresponsible....
Varvara Polezhayeva

But what is to be done with the ``higher-ups''? The West cherishes its bureaucracy as an extremely valuable social group of professionals. But in our case managerial work as a professional process has fused with the authority granted by the peremptory state. A manager didn't so much manage as order about....

The market is a universal human value, the market-free ``economy'' is a private bureaucratic value. ``Unpredictable consequences'' has become one of the arguments for holding back the market with state plans. But ``inimicalness to the unexpected and the unplanned destroys the shoots of the future,'' writes the British sociologist and economist Teodor Shanin....Under perestroika we have come to realize that the economy must be autonomous....

One newspaper wrote, ``As long as shortages exist, those who distribute the few goods will always live well.'' As I see it: ``There will always be goods in short supply, as long as those who distribute them live well.''
Len Karpinsky

Internists to Lose Under RVS

Internists will lose, rather than gain less, under the RBRVS because the projected 17 to 37% increase is not real. The Physician Payment Review Commission is taking care of the final details at the rooms of the AMA CPT Dept. to convert the dreams of many internists...into the Harvard nightmare, after all the millions wasted by Dr. Hsaio.

What physicians bill in Detroit for a 10- to 15- minute office visit (90060), effective January 1, 1992, will have a new nomenclature that spells 30 minutes face to face,...[converting] a 33% increase (from $30 to $40), into a decrease [of more than 50%] because physicians will have to devote three times the current face-to-face time....
Wanda V‚lez-Ruiz, MD, Detroit, MI

New Members

AAPS welcomes Drs. Joanne Ceimo of Paradise Valley, AZ; Stephen F. Coccaro of Albuquerque, NM; Dennis Cooper of Scottsdale, AZ; Richard E. Dwight of Huron, OH; Jeffrey A. Easley of Rockford, OH; George England of Muscle Shoals, AL; Laura Fisher of Providence, UT; Paul B. Jones of Grand Junction, CO; Larry H. Lee and Thomas P. Lynch of Oak Ridge, TN; Gary L. Paddack of Ada, OK; Kerry Pulver of Logan, UT; Allison Purtell of Mission Viejo, CA; and William G. Savage of Oakland, MD. New student members are Gina Love-Walker of Fairborn, OH, and Austin Welsh, Jr. of Dayton, OH.

AAPS Calendar

Jan. 26, 1991. Board of Directors meeting, Embassy Suites Hotel, Atlanta, GA.

Apr. 26, 1991. Medicolegal seminar, cosponsored by St. Louis Metropolitan Medical Society, St. Louis, MO.

Apr. 27, 1991. Board of Directors meeting, St. Louis, MO.

Oct. 17-19, 1991. Annual meeting, Griffin Gate Marriott, Lexington, KY.