~~~
PATIENT DUMPING AFTER COBRA

s. 
DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 
RESPONSE TO COMPLAINTS

tRVIClS' 
"Ja 
OFFICE OF INSPECTOR GENERAL 
OFFICE OF ANALYSIS AND INSPECTIONS 
NOVEMBER 1988  PATIENT DUMPING AFTER COBRA

s. 
DEPARTMENT OF HEALTH AND HUMAN SERVICES 
RESPONSE TO 
COMPLAINTS 
Richard P. Kusserow 
INSPECTOR GENERAL 
OAI-12-88-00831  NOVEMBER 1988  ................................. ..................... ..... ...................... ......... ......... ....... .. ............ .............. ...................... ........ ...... 
.......................... ................. ....... ............. .......... 
TABLE OF CONTENTS 
EXECUTIVE SUMMARY 
NTROD UCTIO N 
BACKG ROU N D ........................................................................................................ 

PU RPOSE 
........................................ 3

M ETHO DO LOG Y 
...................................................................................................... 3

FI N DI NGS ................................................................................................................. 5

RECOMMENDATIONS .. .......... ....... ....... 

Appendix A. 
 Hil-Burton Regulation 
COBRA Regulation 
Appendix B. 

Steps in Procedures for Response to Complaints 
Appendix C. 

of Patient Dumping 
Agency Comments 
Appendix D. 
 , "
EXECUTIVE SUMMARY 
PURPOSE 
The purose of this inspection was to (1) assess the procedures in place at the Health Care 
Financing Administration. CHCFA), the Office for Civil Rights (OCR), and the Offce 
of In
spector General (OIG) for the investigation of and response to complaints of patient dumping 
received by the Deparment; (2) determine what problems 
have been encountered in the inves
tigation and response to complaints; and (3) identify what steps can be taken to correct any dif
ficulties. 
BACKGROUND 
This is the second of two reports issued by the 
Offce of Inspector General (OIG) concerning
the issue of patient dumping. The first report on this subject 
Patient Dumping After
COBRA: Assessing the Incidence and the Perspectives of Health Care Professionals 
" was
released in August 1988. It attempted to 
determine if the rate of patient dumping could be
measured and if health care professionals saw problems in the current process of identifying 
and reportng alleged cases. During that inspection, 25 compliance reviews of hospitals were
conducted along with interviews with 88 health care professionals across the country. 
This inspection assessed internal procedures for handling complaints of patient dumping. The 
HHS has jurisdiction concerning patient dumping under two different statutory authorities, the 
Consolidated Omnibus Budget Reconcilation Act (COBRA) of 1985, and the Hil-
Burton Act
of 1946. The HCFA and OIG are responsible for enforcing the COBRA provisions, while 
OCR is responsible for Hil-Burton enforcement in this area. 
To date considerable criticism has been levied at the 
Deparment for lack of vigor in enforcing
its anti-dumping authorities. All three components have come under fire for a lack of aggres
siveness in pursuing and taking action on alleged cases. Critics point to the small number of 
cases in which penalties have been levied or action has been taken by HCFA
, OIG or OCR as
evidence of a lack of commitment by the Deparment in this area. 
METHODOLOGY 
Interviews were held with representatives of HCFA
, OCR and OIG in Washington, D. C.; Bal
timore, Marland; Atlanta, 
Georgia; Dallas, Texas; and San Francisco
, California to discuss
current practices and initiatives in anti-
dumping enforcement. In addition , OIG regional per
sonnel reviewed case fies in Atlanta
, Dallas, and San Francisco to determine time frames for 
referrl and investigation, as well as document conclusions reached and actions taken.  FINDINGS 
Procedures for the investigation and referral of dumping complaints are relatively new 
or stil evolving. The OCR issued specific instructions to its regional offices in April 
1988. While HCFA and OIG issued interim instructions in mid-
1987, HCFA has
drafted new implementing instructions for the Regional Office Manual and State 
Operations Manual and OIG is in the process of 
preparng a section for investigating 
dumping complaints for the Special Agent Handbook. 
Coordination between the components has not been a priority in the past. Steps are 
being taken to improve this situation , including meetings at all levels between the 
components. However, such coordination alone may not suffice to avoid situations in 
which the components are taking independent actions in the course of their separate 
investigations. 
The number of complaints received by the Deparent 
has increased over time, from a
total of 4 complaints received between October and December 1986 to 33 complaints in 
the same time period a year later. 
Most complaints investigated by the components to date in the three regions studied 
have been determined to be unsubstantiated. When complaints are substantiated, the 
most extreme penalties available (termination, suspension , imposition of civil money
penalties (CMPs), or referral to Deparment of Justice) are rarely used. 
Many cases substantiated by HCFA are stil under investigation by OIG. 
Most cases 
referred to OCR by HCFA were deemed by OCR as fallng outside Hil-Burton. 
Resolution of dumping complaints is time consuming. In the three regions studied
, it
has taken an average of 30 days for HCFA to refer the complaint and receive results 
from the State agency; anywhere from the same day to 214 days for HCFA to make a 
formal referral to the OIG; and anywhere from 42 to 241 days for OIG to complete its 
investigation and refer the case for settlement. In the two cases where CMP settlement 
occurred, it took 177 and 214 days to reach agreement. 
RECOMMENDA TIONS 
The HHS should align responsibilties of the its component agencies in order to assure 
a unified response to a single complaint, or series of complaints involving a single 
hospital. The undertaking of three separate investigations--one by OCR , one by HCFA
and one by OIG--results in duplicative efforts, ineffcient expenditure of resources, 
inconsistent responses, and a lengthened response time.  The HCF A and OCR should propose legislation to better align their authorities under 
COBRA and Hil-Burton and to establish a common departmental definition as to what 
constitutes patient dumping under the relevant provisions of those. statutes. 
A set of guidelines should be developed to outline actions that can be taken in response 
to varying levels of violations. We also recommend the use of a set of time frames for
investigation and resolution of complaints, and the use of a screening mechanism (such 
as the State agency) to direct resources to more productive cases. 
AGENCY COMMENTS 
We solicited and received comments to the draft report from HCFA and OCR. 
The HCFA is 
in agreement with all the report recommendations. However
, OCR had a number of com
ments regarding the inspection findings and was not fully supportive of the report 
s recommen
dations. The OCR questioned the characterization of some of the findings, and sought to 
provide additional information on OCR efforts in the area of patient dumping. Where ap
propriate, certain statements made in the report were clarfied on the basis of these comments. 
Comments to the draft report are included in appendix D.  INTRODUCTION 
BACKGROUND 
This is the second of two reports issued by the Office of Inspector General (OIG) concerning 
the issue of patient dumping. Patient dumping can be defined as the refusal of a 
hospital to 
provide necessar treatment to an emergent patient or woman in active labor on a basis 
(primarly the inability to pay for services) unrelated to the hospital' s capability to provide 
care or the patient s need for care. The first inspection on this subject! attempted to determine 
if the rate of patient dumping could be measured and if health care professionals saw problems 
in the CUIent process of identifying and reporting alleged cases. The report was released in 
August 1988 and reported that (1) objective measurement of the problem was 
diffcult due to 
currnt record keeping practices by hospitals; (2) hospitals did not uniformly or consistently 
report incidents of dumping to the proper authorities; and (3) perceptions vared widely 
among practitioners concerning the rate of dumping at their facilities. 
In light of these findings, the OIG recommended that steps be taen to encourage hospitals to 
report suspected cases of dumping, including making reporting of suspected cases of dumping 
a condition of paricipation in the Medicare program, posting notices in hospital emergency 
rooms (ERs), clarfying definitions, and conducting direct outreach to professional associa
tions such as the American College of Emergency Physicians (ACEP). The OIG also recom
mended that anti-dumping regulations require that all ER records clearly identify transferred 
patients , in order to support compliance reviews conducted by the Deparment of Health and 
Human Services (HHS). 
This inspection attempted to determne how HHS components responsible for the enforcement 
dumping laws have responded in the past, and would respond in the future, to com
of anti-
plaints of patient dumping received by the Deparent. The HHS has jurisdiction concerning 
patient dumping under two different statutory authorities, with three components within HHS 
involved in enforcement activities: the Office for Civil Rights (OCR), the Health Care Financ
ing Admistration (HCFA), and the GIG. 
The fIrst authority under which the Deparent has jurisdiction over patient dumping is the 
community services assurances provision of the Hill-
C. 216,
Burton Act of 1946, 42 
300m-4 and 3000-1(6) (titles VI and XVI), and the accompanying regulations (42 CFR sec
tion 124.603(b)) issued in 1979. (Appendix A contains the Hil-Burton regulation. ) The Hil-
Burton Act, which provided constrction and modernization grants to hospitals, required 
grantees to make certain assurances: among them, that they would make their facilities avail
able to persons residing in their community. The regulation issued in 1979 requires emergen
cy medical services to be provided regardless of a patient s ability to pay for such services and 
prohibits the trnsfer or discharge of patients unless appropriate medical personnel determine 
that such action wil not risk substantial deterioration of the patient s condition. The OCR has 
jurisdiction over the Hil-Burton authorities.  The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 amended title 
XVIII of the Social Security Act. Draft implementing regulations were issued 
in June 1988 
(see appendix B). This authority, effective August 1986 and under the jurisdiction of HCFA 
and OIG, is much more specific than the broad statutory authority of Hil-Burton. The 
COBRA requires that (1) hospitals screen all patients presenting themselves for treatment to 
determne if an emergency condition is present or the patient is in active labor; (2) hospitals 
stabilze panents before transfer, unless the patient has requested the transfer or a certfication 
has been signed by a physician attestig that the benefits of the trsfer outweigh the risks; (3) 
the transferrng hospita contact the receiving facility for permssion to transfer; (4) medical 
records accompany the patient; and (5) the hospital effectuate the transfer through qualified 
personnel and equipment. 
certn 
There is  jurisdictional overlap, but also certain distinction, between these two 
authorities. For example, the Hill-Burton provision applies only to facilities which received 
Hill-Buron funds. The COBRA applies to all facilities which are Medicare-paricipating. 
Consequently, not all complaints actionable under COBRA would be actionable under Hill-
Burton, since not all Medicare-paricipating hospitals received Hil-Burton funds. However 
all Hill- actionable under COBRA, since all Hill-Burton facilities are re
Burton complaints  are
quird to be Medicare-paricipating. 
On the other hand, because COBRA is more specific, a violation under COBRA might not be 
a violation under Hil-Burton. Failure to provide a physician certification, contact the receiv
ing facility or provide adequate transportation, for example, are violations of COBRA only. 
Remedies under the two authorities var greatly, as well. Under Hil-Burton, OCR may only
negotiate a compliance plan or sue for specific compliance through the Deparent of Justice 
Under COBRA, however, a hospita or responsible physician may be suspended or ter-
(DOl). 
minated from the Medicare progr, and assessed a civil money penalty (CMP) of up to 
00 
$50, per violation (as amended by the Omnibus Budget Reconcilation Act of 1987). 
While HCFA is responsible for pursuing tennnation actions, the Secretar of HHS delegated 
to OIG the responsibility for suspensions and assessment of CMPs, resulting in shard enforce
ment authority within the Deparment. 
As a result of these separte authorities, differing conclusions can be reached by OCR and 
HCFA in determining whether a hospital has engaged in patient dumping. Actions 
taken wil 
always difer, based on their different enforcement authorities. While HCFA and OIG should 
always reach the same conclusion, since both ar relying on the same statutory base, these 
components may also disagree on the appropriate action to take. As discussed in the findings 
the involvement of three components under two separate legislative authorities has sometimes 
resulted in confused and duplicative actions by the Deparment concerning a single hospital. 
To date considerable criticism has been levied at the Deparment for lack of vigor in enforcing 
its anti-dumping authorities. All three components have come under fire for a lack of aggres
siveness in pursuing and taking action on alleged cases. A former Director of OCR
, Sylvia
Drew Ivie, testified before the Human Resources and Intergovernmental Relations Subcommit tee of the House Committee on Government Operations in August 1986 that dumping occurs 
regularly at Hill-Burton facilties and OCR' s actions in enforcing the community service 
2 A report issued by the same subcommittee in March 1988 
obligation have-been minimal.
based on hearngs in fall 1987 criticized both HCFA and OIG for 
failng to use their enforce
ment powers under COBRA. Judith Waxman of the National Health Law Project testified that 
lawyers are hesitant to use (the COBRA) process because they have one of two experiences; 
either they never hear a response at all from the agency, or the response is so delayed that their 
clients are totaly discouraged by the wait and the meagerness of the ultimate results. ,, 3 The 
HHS has been furter criticized for the delay in publishing regulations supporting the anti
dumping provisions of COBRA, which were eventually released in draft in June 1988. Critics 
point to the small number of cases in which penalties have been levied or action has been 
taken by OCR, HCFA, or OIG as evidence of a lack of commitment by the Deparment in the 
area. 
PURPOSE 
The purpose of the inspection was to determine how the varous components investigate and 
respond to complaints of patient dumping, what problems had been encountered, and what cor
rections ar needed to correct any past diffculties. The overall objectives of the study were to 
assess: 
if procedures are in place for the timely investigation and resolution of complaints; 
if procedures exist for the referral of complaints to all HHS components with 
jursdiction; and 
what the components ' actual experiences have been in regard to receipt of and response 
to complaints of patient dumping. 
METHODOLOGY 
In order to support these objectives, personnel from the Offce of Analysis and Inspections 
(OAl) of the OIG conducted on-site interviews with HCFA, OCR, and the Office of Investiga
tions (Ol) OIG headquarers personnel in Washington, D.C. and Baltimore, Marland. A pre-
inspection visit with representatives of the thee components in the Philadelphia, Pennsylvania 
regional office was undertaken to focus inspection issues and provide background under
standing. 
Interviews were also conducted with regional personnel from all components in Atlanta, Geor
gia; Dallas, Texas; and San Francisco, California. These three regions received over 90 per
cent of all dumping complaints received by the Department as of April 1988 and were 
therefore considered to have the most substantial experience in investigating patient dumping 
allegations. We did not attempt to determine why complaints received by. HHS are  concentrted in these three regions, although the existence of strong State laws in Texas and 
California may be one explanation for increased reportng of cases in those areas. . 
In addition to interviews with regional personnel, case fies maintaned by the three com
ponents in those regions were reviewed to determne time frames for referral and investiga
4 as well as to document conclusions reached and actions taken. No attempt was made to 
tion 
of the investigations undertaken by any of the components. 
assess the  quality  FINDINGS

Procedures for the investigation and referral of dumping complaints are relatively new or 
are still evolving. 
Severa persons interviewed at the regional level indicated that, in the past, they had con
ducted investigations of complaits of patient dumping "by the seat of our pants. 
" For over a 
year after enactment of COBRA, no specifc instrctions were issued to the regional offces 
(ROs) concerning the proper procedures to follow in the ,event a complaint of patient dumping 
was received. Up until this time, the available guidance from headquarers for HCFA, OIG, 
and OCR personnel was limited to investigative and compliance standards to deal with all 
complaits, not just those involving patient dumping, and no guidance had been given in 
regard to the referral of complaints to other components with jurisdiction. In the past year, in
itiatives have been taken by all three components to provide more specific guidance to their 
ROs in these areas. 
HCFA Instructions 
The HCFA provided interim instrctions to its ROs in June 1987 with additional instrc
tions released later in June and in July of that year. Under these 
instrctions the State 
agency must conduct an investigation of the complaint within 5 days surveying, at mini
mum, emergency services and medical staff under the conditions of paricipation. A 
fast track" tennnation is to be initiated if results indicate that the hC?spital is out of com
pliance. According to the July instrction, OCR is also to be notified of all complaints. 
The HCFA now has in drt new implementing instrctions for the Regional Office 
Manual and State Operations Manual concerning dumping complaints. The instrc
tions, in addition to setting timefraes for investigation by the State agency, also set 
timefraes for peer review organization (PRO) action: where the PRO is involved for 
medical review, the instrctions  rovide written evaluations 
stipulate that the PRO must 
within 5 working days of all cases referred for investigation. 
The HCFA has advised its ROs that conditions of paricipation for emergency services 
and medical staff must be surveyed in validation surveys and that findings of noncom
pliance from those surveys should also be used to initiate a "fast track" termination. In 
one region, a letter was sent to the PROs stating in par: "In the course of a routine 
review, the PRO may identify that a hospital admission followed a transfer from another 
hospital emergency service. If the evidence in the admitting hospital's record indicates 
that the patient was inadequately treated in an emergency rom or that argements 
had not been made for an appropriate transfer... the PRO should notify this offce. " A 
referr sheet to be completed by the PRO in such cases was attached. 
The latest instrctions to be inserted in the State Operations Manual also provide more 
detail on investigating complaints and include a worksheet for gathering pertinent infor mation. Information to be gathered by the surveyor at the facility which allegedly 
dumped the patient includes (1) verification that emergency services ar 
avaihible; (2) 
veriication by review of a sample of emergency patient and active labor patient records 
that these patients were appropriately screened (including the complaint that prompted 
the investigation); (3) verification of whether emergency care was rendered that stabi
lized the condition; and (4) verification that patient transfers complied with COBRA re
quirements. 
OIG Instructions 
The OIG issued interim instrctions in July 1987 to its regional offces concerning 
dumping complaints. In October 1987, OIG issued more detailed regional instructions 
on the handling of dumping complaints. Any complaints received by OIG are to 
referrd first to both OCR and HCFA, rather than investigated by OIG (although certain 
facts may be established prior to referral, such as obtaining the name of the facility, 
name of the complainant, etc. ). These instrctions indicate that OIG wil rely on 
HCFA' s survey to determine if the case is substantiated, and that investigators should 
pursue a course of action with the CMP negotiator if the case does have merit. No 
specific instrctions for the development of the case for imposition of CMPs are given 
and no timefraes to impose a CMPhave been established; standard procedures are 
used. A section for investigating dumping complaints is being prepared for the Special 
Agent Handbook. 
Instrctions issued at the same time as the October transmittal direct regional OIG per
sonnel to review samples of previously closed cases in HCFA to determine if OIG ac
tion is needed on those cases. In practice such reviews have been conducted on a small 
scale and sporadically; OIG considers this primarly a mechanism to "beat the bushes 
for cases in those regions where few allegations of dumping have been substantiated by 
HCFA and referred to OIG. 
In addition, OIG is trcking all allegations of dumping received by HCFA on a monthly 
basis. Recently meetings have taen place in headquarers with OCR staff to determine 
how OCR activities might be incorporated in the report to reflect all deparmental ac
tivity on dumping cases. 
OCR Instructions 
The OCR' s dumping instrctions to its ROs are the most recent of all, and in fact were 
published after we conducted our interviews (April 1988). The new 
instrctions assign 
a much higher priority to dumping cases than some OCR regions report having assigned 
them in the past, even though the investigation of dumping cases was listed as one of 
the Director s national priorities for 1988. For example, in one region
, OCR personnel 
reported that they have relied solely on HCFA' s investigation to detennine if a case has 
merit because OCR lacks the necessar medical expertse (although the OCR Director 
in comments to the draft of this report, contended that reliance on 
HCFA's investigation  was to avoid duplicative effort, not because of OCR' s lack of access to medical exper
tise). Similar reliance on HCFA' s investigation was documented elsewhere where OCR 
staff felt that, in addition to the necessar expertise, HCFA also had the better enforce
ment authority. No paricular priority was assigned dumping cases by OCR staff in 
those regions.

The new instrctions, however, state that dumping complaints should be handled on a 
priority basis, just as AIDS discrimination complaits, although the timeframe for inves
tigating the cases remains the standard 195 days.6 In addition, those instrctions detail 
how a compliance review should be conducted. The information to be gathered by the 
OCR investigator, according to the Model Investigative Plan includes: (1) a copy of 
hospital' s nondiscrimination policy; (2) a description of emergency room services of
fered; (3) a copy of hospital' s wrtten policies and procedures regarding emergency 
room tratment of varous persons; (4) a copy of hospital's wrtten policies and proce
dures regarding in-patient admission; (5) copies of forms or other written information 
provided to patients; and (6) patient records from both sending and receiving hospitals 
identiying emergency room treatments, transfers and releases. 
Appendix C contains exhibits displaying each component s instrctions to its regional 
or field offces for responding to complaints of patient dumping. 
There are different conceptions within the Department as to what constitutes patient dump
ing, due to varying authorities under which it might be prosecuted (COBRA, Section 504 
title VI). 
The OCR' s procedures indicate that a dumping complaint may be investigated under a number 
of different authorities, including section 504 of the Rehabilitation Act of 1973 and title VI of 
the Civil Rights Act of 1964. These authorities would be invoked if a hospita denied a person 
emergency services on the basis of race, color, national origin, or a mental or physical hand
icap. We did not find any evidence in the three regions we visited that a complaint of emer
gent patient dumping as defined under COBRA has been pursued under these authorities. 
Patient dumping is generally considered an economic phenomenon, as in Hil-Burton, where 
emergency services are denied due to financial factors (inability to pay, lack of insurance). 
This is primarly the group at which COBRA is aimed. However, COBRA would also cover 
circumstances in which a patient is denied needed emergency services on a basis other than an 
economic factor (such as the assumption that a patient is high-risk for the AIDS virus), since 
patients in need. 
COBRA requires screening of  all  patients and treatment of  all 
Where a patient is denied emergency services on a basis covered by title VI or section 504 
 and 
is not in medical1Jeed  only OCR would have jurisdiction (as long as the patient was screened 
to determne if need existed). While OCR' s dumping procedures do nOt include instructions 
to the regional offices on how to approach non-emergent patient dumping (OCR has indicated  that such procedures are already in place), that area is clearly within OCR' 
s purview and does
not overlap with COBRA, which covers only emergent situations. 
Steps are being taken to improve coordination among the components, although this has 
not been a priority in the past. 
Meetings have taken place recently at the headquarers and regional level between 01
, HCFA 
and OCR to discuss the handling and coordination of dumping complaints. These meetings 
have taen place on the initiative of all involved components. As noted above, recent instrc
tions issued by the central offices of OCR and HCFA to the ROs also indicate that referral of 
complaits to the other office should take place when a complaint is received. 
These steps, although helpful, may not suffice to avoid situations such as that described by 
one regional offce, in which one hospital was subjected to a number of separate visits by 
HCFA, OCR, and OIG at virually the same time. The OCR representative at this region indi
cated that, on the same day he was meeting with obstetrcal staff to describe the requirements 
and implications of the compliance agreement reached between the hospital and OCR
, HCFA 
representatives were " down the hall" asking for additional information to support their inves
tigation. The OIG staff arved on the site a few days later to determine if imposition of CMPs 
was waranted. Under current procedures, separte investigations may stil occur 
(although
OCR' s instrctions indicate that the feasibilty of pursuing a joint investigation with HCF 
should be considered) and this kind of situation could be repeated. 
The referral of complaints to other components with 
jursdiction has been a parcular problem
in the past, especialy between HCFA and OCR. Several regions commented on the lack of 
communication between these two components. For example, our case 
fie review indicated 
that in two regions HCFA referred a number of complaints in batches to OCR only after 
HCFA instrctions were issued to refer cases to OCR. In seven instances where HCFA 
sub
stantiated a complaint, there is no evidence in the case fie that it was referred to the OIG for 
penalties. In addition, practices appear to var among the regions as to whether a complaint is
referrd imediately 
upon receipt to the other components, or only after a preliminar deter
mination has been made that the complaint has some merit. The new 
instrctions issued by 
the central offices directly address the question of referrals and should eliminate this problem. 
The number of patient dumping complaints received 
by the Department has steadily 
increased over time. 
As exhibit 1 indicates, in the three regions studied, the Deparment received four complaints 
in the fit quarer of the Federal Fiscal Year 1987 (October - December 1986); 15 in the 
second quarer 1987 (Januar - March 1987); 24 in the third quarer 1987 (April 
- June 1987);
28 in the fourth quarer 1987 (July - September 1987); 33 in the fIrst 
quarer 1988 (October 
December 1987) and 29 in the second quarer 1988 (Januar - March 1988).  EXHIBIT 1 
NUMBER OF COMPLAINTS RECEIVED BY HHS 
By quarter 
, in 3 regions studied 
11- 111-87  IV- 11-88 
Fisc 01 Year Quarter 
Sixty-five (43 percent) of the total number of complaints in the three regions were received in 
Region VI. However, the most dratic increases in caseload occUIed in Regions IV and IX.
In Region IX, for example, nine complaints were received prior to August 1987. Between 
August 1987 and April 1988, a 9-month period, an additional 32 complaints were received.  Most complaints investigated by HCFA to 
date in the three regions studied have been 
determined to be unsubstantiated. When 
complaints are substantiated, termination 
rarely occurs. 
Of a total 151 complaints received in the 
thee regions visited, HCFA found 98 cases 
(65 percent) to be unsubstantiated and 41 
(27 percent) to be substantiated. Ten inves
tigations were in progress at the time of our 
analysis, and the status of two cases was un
known. 
2 Status unknown (1%) 
Thirty-two termination actions have been in
10 Investigations 
itiated by HCFA; in 30 of those cases, hospi
in progress (7%) 
tas submitted plans of correction and no 
41 Substantiated (27%)  termination took place. Two hospitals were 
terminated for COBRA violations, both in 
98 Unsubstantiated (65%)  Region VI? 
From discussions with regional HCFA sta, it appear that termination actions 
ar pursued 
only where evidence of CUIent noncompliance exists. One HCFA representative indicated 
that termnation actions "won t stad up in cour" if the cUIent state of compliance has not yet 
been determed. Consequently, HCFAconsiders a plan of correction to be 
suffcient to can
cel a termnation action. 
Our analysis reveals wide regional varances, both in substantiating cases and in taking action 
on substantiated cases. In Region VI, 27 of 65 complaints (42 percent) were found to be sub
stantiated. In Region IV, 5 of 11 complaints (45 percent) were found to be substantiated; the 
rate was even lower--three out of 41 complaints, or only 7 percent--in Region IX. Regions
also vared widely in their response to substantiated complaints. In Region VI, termnation ac
tions were initiated in 24 of the 27 (89 percent) substantiated cases. 
In Region IV, termination
actions were initiated in five of the 11 substantiated cases (45 percent), and no actions were in
itiated in any of Region IX' s three substantiated cases.  The OCR often lacks jurisdiction and has 
not yet taken enforcement action on dump
ing referrals from HCFA in the three 
regions studied. 
In the three regions studied, OCR had not 
yet taken any enforcement action on cases 
referred by HCFA. In 22 of the 33 cases 
(67 percent) referred to OCR by HCFA 
OCR determned it did not have jurisdic
tion. Eleven complaints are pending 
(which may include active investigations in 
progress) in OCR in those regions; most 
22 No jurisdiction (67%) 
received recently. 
11 Pending (33%)

Many cases substantiated by HCFA are 
still under investigation by DIG. 
The OIG may take action based on past 
violations, regardless of a hospital' s cur
rent compliance. In 34 of the 
41 cases sub
stantiated by HCFA, documentation of a 
formal referral to the OIG was found in 
the fie. As of April 1988 in the 3 study 
regions, 25 of these 34 cases (74 percent) 
were stil under investigation in OIG field 
offices. Eight cases have been referred to 
the OIG centr office for action, with 
CMPs imposed in two of those eight cases. 
2 CMP impose (6%) 
Conversations with OIG staff indicate that 
1 Closed, no action (3%) 
the high number of pending cases is 
primarly due to recent referrals from 
6 In negotiation 
for settlement (18%)  HCFA (many of the pending cases were 
received after Januar 1988), a lack of 
25 Investigations 
resources (no additional resources were 
in progres (73%)  authorized in the COBRA legislation for enforcement) and the complicated nature of dumping 
cases (involving professional medical judgment, 
requirng medical review, etc. 
Resolution of dumping complaints is time-consuming. 
It has taen an average of over 30 days for HCFA to refer the complaint and receive results 
from the State agency for cases ultimately found to be 
substatiated in the three regions 
studied. The average for cases ultimately found to be unsubstantiated is even higher. 
However, the average time requird for this activity has improved since a year ago (see below). 
It has taen anywhere from the same day to 214 days for HCFA to make a formal referral to 
the OIG for investigation at the regional offce level, although the average time required has 
improved since August 1987 (from 66 to 42 days in Region  and from 111 to 37 days in 
8 Of the eight cases referred to the central offce, it has taken 42 to 
Region VI.)
241 days for
the regional OIG to complete its investigation and refer the case to the central 
offce for im
position of CMPs or suspension, with two cases takg over 200 days and another three taking 
over 100 days. In the two cases where CMP settlement has occurred, it has taken 177 and 214 
days to reach agreement. 
EXHIBIT 2 
AVERAGE TIME REQUIRED FOR HCFA 
TO RECEIVE RESULTS FROM STATE AGENCY

140 
130 
120 
110 
100 
1-87  11-87  111-87  IV-87  11
Fiscal Quarter  Analysis of OCR timeframes was not conducted due to their limited experience. As indicated 
earlier, 22 of 33 complaints received in the three regions have been closed because OCR deter
mined it did not have jursdiction. Of the remaining complaints all are pending, most received 
on referrals from HCFA after Januar 1988. 
Activities undertaken by the components include data collection and analysis, interviews with 
patients and hospita  reviews of other patient files to determine if a pattern of abuse 
staf, and 
exists. Sta interviewed in all thee components described these activities as "time-intensive. 
In one region, 01 staf indicated that they expanded their investigation in one hospital when 
they discovered a pattern of abuse in order to support the imposition of a larger CMP, al
though they could have recommended the imposition of a smaller CMP earlier based on 
validation of the original complaint.  RECOMMENDATIONS

The Department should align the responsibilties of component agencies in order to assure 
a unifed response to a single complaint, or series of complaints involving a single hospital 
so as to improve response and the efficient resolution of complaints. 
Based on our findings, it appear that all involved components are taking productive steps to 
improve the Deparent s response to complaints of patient dumping, including the coordina
tion and referral of complaints between components. Even so, as many as three separate inves
tigations of a complaint or a series of complaints involving a single hospital may take 
place--one by HCFA to detennne if a violation of COBRA occurred and the hospital' s current 
state of compliance; one by OIG to further develop HCFA' s case to determine if a pattern of 
abuse by the hospita exists; and one by OCR to determine if a violation of Hil-Burton oc
curd. 
undertg 
The  of as many as three investigations results in duplicative effort (since 
aU three 
components rely on similar information to develop the case); 
ineffcient expenditure of resour
ces (three teams instead of one); an inconsistent response by the Deparent 
(since all three
components may be requesting information and conducting on-site visits at the same time); 
and a lengthened response time (since OIG begins its own investigation after HCFA' 
s deter
mination that a violation has occUIed, for example). Consequently, we 
recommend that a 
unified approach be taken to respond to allegations. We recognize that a rapid response to 
complaits. must not be jeopardized, but instead should be supported, by a unified strategy. 
The preferrd approach to accomplish this objective would require, among other things, that 
(1) a single notification regarding the commencement of an investigation be made to the hospi-
tal and the complainant; (2) a single investigative strtegy be pursued to meet the level of 
proof requird (including a determation as 
to the valdity of allegations of past infractions 
and the curent state of compliance by the hospita); (3) a single data request to the hospital be 
made; (4) a single set of interviews be conducted with hospital staff
, the complainant, in
volved patients, and other relevant 
pares; and (5) a single notice of determination , outlining
conclusions and actions to be taken, be made to the hospita and to the complainant. 
The objective of a unified response can be supported in a number of different ways. Among 
the alternatives ar: 
JointOCR-HCFA investigations could be conducted, as suggested by OCR in its 
manual for responding to complaints of patient dumping. A single approach could be 
developed, or investigations could be mapped out on a case-by-case basis, with the 
component most directly involved takng the lead. The Offce of Investigations in OIG 
should consult with the team to ensure that data gathered 
wil support a determination of 
whether to impose a CMP or suspend a hospital or physician.  The OCR could delegate its responsibility for investigating complaints of patient 
dumping under Hill-Buron to HCFA, since COBRA has a more detailed statutory base 
and enforcement is stronger under that authority. HCFA has access to more resources 
(PROs, State agencies) and has more medical expertise with which to judge the validity 
of patient dumping complaints. Further, as demonstrated by our analysis of the casefie 
information, most complaints are received at the State agency level, to which HCFA has 
a diect and pre-existing relationship.

We believe that both these approaches have merit and should be considered. There may be 
other configurations which support the objectives outlined above, as well. 
The HCFA and OCR should pursue legislation to better align their authorities 
under Hil-
Burton and COBRA and to establish a common departmental definition as to what con
stitutes emergent patient dumping under the relevant provisions of those statutes. 
As noted previously in this report, OCR and HCFA may reach different conclusions as to 
whether a complaint of patient dumping is valid based on their different statutory authorities. 
For example, lack of medical certcation attesting that the benefits outweigh the risks for 
transfer of an unstable patient is a violation of COBRA, but not of Hill-Burton. This lack of 
conformty could jeopardize the effectiveness of a unified strategy. 
As noted earlier, OCR has authority under Hill-Burton over patient dumping in a non-emer-
gent settng. The authority of OCR in this area does not overlap with HCFA' s authority under
COBRA and this type of violation should not be included in a common definition of emergent 
patient dumping. Furher, if OCR wishes to brig a discrimination action under title VI or sec
tion 504 for actions that mayor may not involve emergent patient dumping, it may do so on 
its own authority, outside the Hill-Burton/COBRA frework to prevent dumping of patients 
from emergency rooms. Thus we agre with HCFA's comment to our draft report that " OCR 
should continue to be responsible for (violations of Hill-Burton which do not also violate 
COBRA). 
In order to develop an efficient and consistent response to complaints, a set of guidelines 
should be developed by the Department which outlnes in detail what actions can be taken 
(termination, suspension, CMPs, etc.) in response to varying levels of violations (isolated in
cident, pattern of abuse, evidence of willful negligence, etc. 
As noted in our findings, there are wide varations within 
HCFA in actions taen in response
to substantiated cases. Although HCFA' s new draft procedures wil support uniformty in ac 
components should take appropriate measures to ensure that consistent actions are 
tion,  all 
taken in regard to substantiated cases. A set of guidelines, developed in tandem by HCFA 
OCR, and OIG, should be developed for use by regional offces outlining the full range 
of ac
tions that can be taken in response to varing levels of violations, and guidance for making the 
proper determination.  A set of time frames for investigation and resolution of complaints should be developed, and 
a screening mechanism (such as the State agency) used to focus investigative resources on 
more productive cases. 
Time frames for investigation and subsequent action should be established, such as those 
detailed in OCR'  all 
s April 1988 guidelines, which outline expected deadlines for activities in 
of an investigation from receipt of a complaint to action by the Deparment. Lastly, 
phases 
since may complaints ar unsubstantiated, we support HCFA's use of the State agency to con
duct a prelimiar, prompt investigation of a complaint before the Deparment commits sig
nificant resources to a full investigation.  END- NOTES 
Office of Inspector General, "Patient Dumping After COBRA: Assessing the Incidence 
and the Perspectives of Health Car Professionals, " OAI-12-88-oo830, August 1988. 
Commttee on Government Operations, "Investigation of the Offce for Civil Rights in the 
Deparent of Health and Human Services, " House Report 100-56, April 1987, p. 28. 
Commttee on Government Operations, "Equal Access to Health Care: Patient Dumping, 
House Report 100-531 , March 1988, p. 12. 
Although the term "investigation" has specific connotations in the investigative 
community, it is used here as a generic term to mean examinaqon of facts, review or 
surey. It does not denote any specific process, level of effort or standard of proof. 
It should be noted that the time frames for the PRO and State Agency are for investigation 
of the initial complaint, and do not include additional time to expand the scope of the 
review, if necessar; a HCFA re-review, if HCFA determnes that it is unsatisfied with the 
State investigation; or termnation and re-survey to determne if conditions have been 
corrcted. 
The 195 days ar alocated as follows: 15 days for acknowledgement letter to 
complainant; 75 days for investigation; 15 days to issue letter of fIndings or letter of 
waring; 90 days to issue the letter of noncompliance, negotiate a settlement or refer the 
case for enforcement. 
Hospitas may re-enter the program after having been terminated, if HCFA determines 
that the hospita is now in compliance. 
No substantiated cases were referred to Region IX OIG staff during the study period. 
The dates used for CMP settlement ar the dates on which the necessar paperwork is 
signed. According to 01, agreement on the terms of the settlement may take place 
considerably sooner.
 APPENDIX A 
HiI- Burton Regulation  . & 
42-- He 
TI 
124.601

ori
cr  1', 
lIund of  color, naonua nla
or ID . other arun 
601 Appllc.  to an inadvivaidWuat'.  ne forn theee s ervce
. 124. or the  of the  se-
toT ahen p rreoivp1ieonnat  ooff  JthlJelrUab Upa laptPa17 IIcIh In  theC fcaoctn .c S eUmbjese lteo' 
(b) 
under Title VI or XV of the Publi 1c)  facty  de  lerv
th.  m& 
aHesalcthe S ervce Ac.  pthen a  unle 
ma ven aD who ar 
that Itth weoruelfd  ubu atet haev faa. quPi un.eu  thos penoton  a &1 froer
cWty or porton  red1  to be provide UDmp-nate
cabule  to al persna  &lte (and. In aerv 
of Title& XVI    appaUrca tl pa  under the provflona of Sub-
terrtori 
seemrpvleosY eTd)h,  In the  18 referr atoe In.  tr(.2 )a A epen oan r18  rfoerd p1u Inr th eo ffac
Itchle I Uabapaur r. . the "communt7  1e0n If the penon: 
ar 
Delt  (I) 18 Uvf In the .mce  with 
'124.10  r-"'A'n  there perm
us  thlUbpa nthe eintetntlio n otor 
 for aD IndeflDte period 
ar 
As  In  Uvf  th sece 
Ac" mean the PubUc Heath Se.  PCUU) 1l8   In  for
of 
Ice FAca tuy amende Uvemf lwoJi'tehn.t ;f aorm  m""bf
U" mlte&an  th aD entlt CWr) e18d ein thI ame   ar 
reived  who 
uner Title VI .
fact
Title XV of the A&c alncd epr ovide a ID(b)  8 emel' (1) A 
communty servce  not deD  servce to 
FI year" mea facty'1 an persn whUo r8ed es  the 
Cor, In 
yeaS.ereta me& the Seta ooff  tfhaect Aleci  faa rem loyuendd) eInr  Tthietl ef aXcV. 
Hleepaltteh.  and HnmJU Servce or hJ tthre.  pseervnce  fa unalDe  ttoh  plaJ ufonrd thOl
semce 
&threSa ef dravecctsey lai Irtnae "t h ume  etmh&eoS  taahe errt e ,&esneotr lv leSpdtha bt1e  th(2t)  Abu ft arrceetiyrv em d ae mdefl"henac, . &se pmencoen 
pla approved by the  under  or ma the penon to another
factyable to
Title VI, except tShate. ta&t th e1 re1u est of  provide n clIUU7 sert. 
the tacty, the  des,- Ice when the approprfte medca
nate a dfferent ar propo ptrefrsenrn el determe tht  pe
detelma tht a  wt 
facty awhre n he  bu  dI. DOrtI s ubjec the 
ferent  18C apPp r5op3ri.at   ledo)n t.he  . subltatla  of deterioration. In 
medca condition. 
criteria In 42  fl 
a sStattaete f. uacle noScr  e"c omtn&edlat l outhne a  adc nlcl7D o f  ThCec )f 7a7cdrtd  JIHharlt  m"JO  ae aJJ.rmol'ent(a1)
ee by tphe1  a  the State if ellle to do 10, for reimburment
health  and 
development for servce with 
acency of the Sta under seon 1521 (1) ThOl prlpa State and loc 
of the  IOvemmenta th-pary payOI' tha
Pr of.  pthro vide reimburment 
. 124.G10  e  tha  for servce
fa not leu  the acua 
acrdce 
(a)  1) In order to comp17 u determed In  with ac 
with Its communty servce acuntf prlpla; 
a facty 8h mae the servce pro ceCtDe) p FC0re ora  ,ovemmenetad and 
ed In the facWty or portion theref pay 
conscte modern  such  and
or convert medcad. 
Fera 
with  In  nec
soorn Xa arVeu oltfc et:h  e(Ua lAnfdac.t  aaInvc eath Ueubn cdleeu rt o oT afi tlfl eap cVe..I 1an&(2d)   ssTethrPevi cf aetcto Y8o h fta e the tthat  cta  da.r. taovn ato 
ties  under Title XV of 
Aacrta. e mployed)c InU thet tlacoWnty' 1 servtchee tbale  tpo rboencefrlc 1sepse oief tdh eI n. c povdaerrnIpehn.
without  on the  th 
(c)( 1) of 
setion without  APPENDIX B

Cobra Regulation  Federal Register / Vol. 
53, No. 116 / Thursday, June 16, 1988" / Proposed Rules
 22513 
by reviewing discharge plans to ensure 
nthate theey adre rsesp.o nsive to discharge terHmCFin aA tlwoonu oldf  ap rporovivdidee rf osr  atghree ement SI.U BPaPcMkEgNruTnAdRY INFORMATION: 
for violation of any of these provisions. 
(Catalog of Federal Domestic Asslslance.  In addition. OIG would provide for  A. Participation in the CHAMPUS and
Programs No. 13.773. MedicareHospital  suspension of a provider  CHAMPV A Programs 
s agreement
Insurance; No. 13.714. Medical Assistance)  and for civil monetary penalties for  CHAMPUS (Civilian Health and 
Dated: September 3, 1987.  violation of the emergency care  Medicnl Program of the Uniformed 
Wiliam L. Roper.  provision.  Services) and CHAMPV A (Civilian
Administrator. Health Care Financing  These revillions would Implement  Health and Medical ProRram of the 
" Administration.  Veterans Administration) programs pay 
sections 9121 and 9122 of the 
Approved; November 5, 1987.  Consolidated Omnibus Budget  for health care services furnished to 
Otis R. Bowen,  ReconcilatiorfAct of1985 (as amended  dependents and survivors of military 
Secretary.  by section 40 of the Omnibus Budget personnel, of retirees and their 
Ediloral Nole: This document was received  Reconciliation Act of  dependents. and of veterans. Generally. 
1987), section 233
for publication at Ihe Office of the Federal  of the Veterans' Benefit Improvement the programs have paid hospitals based 
Regisler on June 10. 198.  and Health Care Authorization Act of  'Jn their charges. Section 931 of the 
Department of Defense Authorization 
(FR Doc. 8813514 Filed 
 : 8:45 amJ  1986. and section 9305(b)(I) of the

BlNG CO 41201..  Omnibus Budget Reconciliation Act of  Act, 1984 (Pub. L. 98-94) authorized 
these programs to pay (to the extent 
1986. 
practicable) for inpatient hospital 
42 CFR Part 405, 489, 1001 ana 1003  DATE Comments wil be considered if 8ervices using Medicare reimbursement 
we receive them at the appropriate  procedures. Because the Medicare 
I BERC-393-PJ  address. as provided below, rio later prospective payment system (PPSJ (the
than 5;00 p.m. on August IS, 1988.  system whereby we pay a hospitRI a 
Medicare Program; Participation In  predetermined amount based on the 
ADDRESS: Mail comments to the 
CHAMPUS and CHAMPVA, Hospital  following address: Health Care  patient's diagnosis and any surgical 
Admissions for Veterans, Discharge  procedures preformed. rather than by 
Financing Administration. Department 
Rights Notice, and Hosptlal  of Health and Human Services,  " the number of days hospitalized) results
Responsibility for Emerency Care  in Medicare cost savings. the 
Attmtion: BERC-93-P, P. 
O. Box 26676, Department of Defense (000) expects 
Baltimore, Maryland 
AGENCIES: Health Care Financhlg
 21207.  that it would realize similar savings if it 
Administration (HCFA) and Office  Pleas  address a copy of comments on  were to use a model similar to 
Inspector General (OIG). HHS.  information collection requirements to:  Medicare s PPS. Paying on the basis of a
ACTON: Proposed Mlle.  Allson Herron, EOMB Desk Officer for  fixed rate appropriate to the particular 
HCFA. Offce ofInformation and  diagnosis involved has been shown to 
SUMMARY: We are proposing to revise Regulatory" Affairs, Room 3002, New  be an equitable method of paying for 
requirements for Medicare participating  EXecutive Offce Building. Washington.  hospital care. Therefore. the Office of 
hospitals by adding the following:  DC 20503.  Civilian Health and Medical Program of 
. A hospital must provide inpatient

If you prefer, you may deliver your  the Uniformed Services (OCHAMPUS) 
hospital services to individuals who 
comments to one of the following  has published a final role which 
have health coverage provided "
by either adc;esses:  includes provisions for the 
the Civilan Health and Medical
Prgram" of the Uniformed Servces  Room 30. Hilbert H. Humphrey pimaypmleemnet nstyastitoenm o mf ao dDeRleGd -abfateser d 
M(CeHdAicMaPl UPrSg)r oamr t hoef  Cthiev iVlaent eHraenasl th and Building, 20 Independence Ave. SW., Medicare s PPS for CHAMPUS inpatient 
Washington, DC. or  hospital admissions occurring on or 
Administration (CHAMPV A). 
subject to Room 132. East High Rise Building, 6325 
limitations provided by regulations, and  after October 1. 1987 (52 FR 32992). 
accept the CHAMPUS/CHAV A Security Boulevard. Baltimore.  Hospitals that furnish services to 
Maryland. 
determined allowable amount as  CHAMPUS and CHAMPV A 
payment ih full for the services.  In commenting, please refer to fie  benefiCiaries are authorized to provide 
code BERC-93-P.  services to these beneficiaries following 
. A hospital must provide Inpatient

hospital services to miltary veterans  Comments received timely wil be  an approval process similar to that used 
(subject to the limitations provided in 38  available for public inspection as they  for Medicare participation: All hospitals 
certified by the Joint Commission on 
CPR 17.50 ff.) and accept payment from are received. which generally begins 
the Veterans Administration as payment  about three weeks after publication of a  Accreditation of Health Care 
30  Organizations nCAHO) are authorized 
in full. 
 document. In Room  of the providers: any Medicare hospital may 
. A hospital must give each
 Departent' s offces at 200  be (and all have been thus far) deemed 
beneficiary a statement of his or her  Independence Ave., SW., Washington. 
to be authorized providers. All others 
rights concerning discharge from the  DC, on Monday through Friday of each 
ho.s pAit ahlo. spital with an emergency  2w0e2e-k2 f4r5o-m7 889:3) 0 a.m. to 5;00 p.m. (phone: dpaerete srrumroivneey ewvdh ebtyih OedrC thHeeAyM aPrreU sSau tto.h orized
department must provide. upon request 
and within thecapabiliHes of the  FOR "FURTER INFORMATION CONTACT  Participation" has a different 
hospital, an appropriate medical  Thomas Hoyer,  607. For all  meaning for CHAMPUS and CHAMPV A 
screening examination and stabilzing provisions except suspensions and than for Medicare: providers have been 
treatment to any individual with an  civil monetary penalties.  able to decide on a case-by-case basis
emergency medical condition and to any
 whether to "participate" in the program
woman in active labor,  Jim PaUon30  . For  and thus accept the CHAMPUS/ 
individual' s eligibilty forre Mgaerddliecsasre o. f the .c pirvOilv imsioonnse 'traetl' apteinnga lttoie ssu. spensions and CHAMPV A-determined allowable 
amount as payment in full (under these  22514  Federal R  8ter 
/ Vol. 53,  116 / Thursday. June 
16. 1988 / Proposed  Rules 
programs. beneficiaries are 
pay a cost-share for each horsepuitiarle d tt' eligible to reive care at the hospital. 
In its Report accompanying H.
admission. and Ihis Is considered to be  The hopital then would receive
 the House Ways and Means ComRm. i3t 1le28e.
separale from the CHAMPUS/  payment  lor  the servces under  the  indicated thai Congress was concerned
hCoHsApMitaPlsV  mAu psat yamgreenet )t.o U bnidl ethr eM edicare,  tahppalinc asbilme VpA lypa yomenn tt hsyes tbema.s
 is of the  rather  about the increasing number of rP.orts
for all beneficiaries and accpt progrm  hospital's charges.  that hospital emergency rooms are
refusing to accept or Ireat patients with
(Mleesdsic aarpep plaicymabelnet  adse dpauycmtiebnlte isn,  fuff C. Statement of Beneficiary Rights  emergency conditions. inCluding
medically unstable palientS, 
coinsurance amounts, and noncovered  After the propective payment system  if the
items).  became effective for the Medicare  patients do not have m edica! insurance.
In addition. Ihe Report slated that there 
As indicated above, all Medicare  program, we began to hear allegations 
hospitals are also authorzed providers  that Medicare beneficiaries were  have been reports that patienls in an 
unstable condition have been 
in CHAMPUS and CHAMPV A on the  discharged too early from the hospital 
basis of their  and we also began to receive complaints  transferred improperly, sometimes 
ICAHO.appved statu or
are deemed authorized providen based  that patients did not understand their  without Ihe consent of the receiving
on Iheir Medicare-approved status. The  rights as Medicare beneficiaries in cases  hospital. Because Congress believed 
benefits to the DaD of requiring them to  where they were advised that discharge  that this situation may have worsened 
be paid either under a DRG- was appropriate but they disagreed. On  since Ihe Medicare prospective payment 
based
payment system or based on teasoable April 17, 1985, 42 CFR 466.78(b)(3) was system for hospitals became effective. 
cost are lost, however, if the Hospitals  revised requiring all hospitals to provide  the Report slales that the Committee 
can selectively participale in the  Medicare beneficiaries with information  wants to provide II strong assurance 
CHAMPUS and CHAMPV A  about PRO review, including their  that pressure for greater hospital
progrms.
Congress, in section 9122 of COBRA,  appeal rights (50 FR  effciency are not to be conslrued as
now requires all Medicare hospitals,  response to concerns1 5a3b3o1)u.t  eIna rflyur ther license to ignore Iraditonal community 
beginning lanuary 1987, to participate In  discharges and lack of adequa  responsibilities and loosen hisloric 
e appeal
CHAMPUS or CHAPV A as authorze  information. we began requiring standards." (H.R. Rep. No. 99241  99th
providers (i.e., they musl bil CHPUS  hospitals to furnish each beneficiary  Cong., 1st Sess. 27 (1985).) As a result of
or CHAMPV A and accept  upon admission a specifc statement  Ihis concern, Congress enacted section 
CHAMPV A/CHAMPUS-determined  developed by HCFA (i. 9121 of Ihe Consolidated Omnibus 
e.. the "Important 
allowable amounl as payment in full- Message from Medicare  Budget Reconcilation Act (COBRA) of 
) telling a
less applicable deductible, patient coat- beneficiary of his rights to be fully  1985, Pub. 1. 99272. 
share, and non covered items).  informed about decsions affecting 
II. Leislation 
B. Participation in the Veterons Medicare coverage or payment and 
Administrotion (VA) Health Care about appeal rights In response to any  A. Participation in CHAMPUS and 
Program.  hospital notices to the effect that  CHAMPV A Programs 
Medicare will no longer Cover the care.
A retired veteran with a service- The "Message" we developed also Section 9122 of COBRA amended 
connecled disability is not required to  section 1866(a)(l) of the Act by adding a
advises the patient what to do when he 
use Veterans Administration (VA)
 receives. such a hospital statement  new paragraph (I, which requires 
hospitals but may elect to receive  and hospitals in the Medicare program 
how to elicit more information. The 10 be
services from "civilian" providers and requirements relating to the " participating providers of medical care, 
be reimbursed through CHAMS. Message from Medicare Important  for inpatient servces only, under any 
However, once the VA has made or has  " were hea/!h plan conlracted for under 10 
. incorporated irttothe program 
authorized paymenl for services related  C. 107 or 1086 (CHAMPUS) or 
operating Instrctions. 
v1e0l ear saenr visic teo- coobntnaienc taeldl  sdeirsvaibcielist yth, rthoeugh  Congress. subsequently passed section auncdceorr d3a8n cUe.  wCit.h 6 a1d3 m(CisHsAioMn PpVra Act)i.c iens 
9305(b) of the Omnibus Budget 
the VA. In cases where the veteran  . and payment methodology and amounts 
receives servces from a non- VA  Reconciliation Act of 1986 (OBRA 86). as prescribed under joint regulations 
Now, as part of its participation 
hospital. either through choice or  issued by the Secretaries of Health and 
agreement with Medicare, each hospital 
becDuse there is no available VA  Human Services. Defense and 
must agree to furnish each Medicare 
hospital which can provide the  Transportation. This requirement
beneficiary with a notice, at or about the 
necessary servces. the VA pays 
 applies to services furnished to
services based on the hospital' far the  time or admission. that explains the CHAMPUS and CHAMPV A 
As with CHAMPUS and CHAs MchPar gAe,s.  patienes rights in detail.  beneficiaries admitted on or after 
when Ihey also paid the hospital'  D. Responsibilities of Medicare January I, 1987; 
charges. this tye of payment is more  Participating Hospitals in Emergency  (Section 9122 of CODRA also required
expensive than payment on a  Cases  that the legislation apply to all
prospective basis or based on 
reasonable costs. As a result, the VA is  Hospitals that choose to participate in  agree men Is entered into on or after 
selting up a national prospecive  Ihe Medicare program agree in writing  April 7. 1986. but this requirement was
deleted by section 1895(b)(6) of the Tax
payment system.
 to meet various requiremenls included 
Reform Act of 1986 (Pub. L. 
To alleviate hospital expenses for the  in section 186 of the Social Security Act  99-14). 
enacted October 22, 1986. 
VA. Congress passed section 233 orthe  (the Act). Before enactment of Pub. 1. 
Veterans ' Benefit Improvement and  99272 on April '/, 1986, the Act did not B. Participation In the Veterans
Health- specifically address the issue of how  Administration Health Care Program
Care Authorization Act of 1986 
(Pub. 1. 99576). This section req hospitals with emergncy medical 
Medicare hospitals to be praticipuatilrneg  departments must handle individuals  Section 233 of the Veterans' Benefit
providers of medical care to veterans  who have emerency inedical conditions  Improvemenl and Hea/!h-Care
Authorization Act of 
or-who are  in  active labor.  576) was enacted on O19c8t.o6b (ePru 2b.8 .1 . 99-

1986. It  Federal , Register  Vol. 53, No. 116/ Thursday, June 16, 1988  Proposed Rules  22515 
patient.
added a new paragraph (L) to section  Section 9121 of COBRA added a  interest of the health and safety of the
1866(a)(1) of the Act. It requires  paragraph (i) tos'e  tion 1866(a)(1) of the 
hospitals that participate in Medicarelo  Act and added a new !Uction 1867 to the  (d) A hospital that fails to meet the
be participating providers under 38  Act. Sectio!! 186(a)(1)(1) requires that a
 requirements of section 1867. of the 
C. 603. in accordance with the  hospital. participating in the Medicare  Act-
admissions practices. and payment  program mustagree to comply with the  (1) Is subject to termination of its
methodology and amounts, prescribed  requirements of section 1867 of the Act  Medicare agreement or, at the option of 
under joint regulations issues to  ' the extent' applicable. Section 1867  the Secretary of the Department of 
implement this section by the Secretary  provides t eJollowing:  Health andHuman.Services (HHS), 
of HHS and the Administrator of the .  (!l1' A hospital with an emergency  suspension of the Medicare agreement if 
VA. This pro1visi9on a8pplie7s to .se rvices  . departniEmt must; within the capabilities  it knowingly and wilfully. or 
furnished to veterans admitted on or  of its emergency department, provide an  negligently. fails to comply with section 
after July 1,  appropiiate medical screening
 1867. The suspension is subject to 
Statement of Beneficiary Rights  examination to any individual who  reasonable notice to the hospital and the 
C.  comes to the emergency department for  public and is for a duration that the 
The Omnibus Budget Reconcilation  examination or treatment of a medical  Secretary determines to be appropriate: 
Act of 1986 (OBRA 80) was enacted on  . conditon or of active labor and on 
and 
October 21, 1986. Section 930S(b)(1) of  whose behalf the examination or 
(2) Is also subject to civil monelmy
ODRA 86 adds a new paragraph (M) to  tratmcntis requested: the purpose of  penalties (which are in additon to those 
section 186(a)(1) of the Act. That  the examination is to determine whether 
provided under section 1128A of the 
. paragraph puts current regulatory and  the.individual:has an emergency 
Act) if it knowingly violates section 
administrative policies into statute and  medical conditon or is in active labor. 
requires a hospital that is eligible to  This requirement applies regardless of  1867. The penalty cannot exceed $2S.

for each violation committed between 
participate in the Medicare program to  the individual's eligibilty for Medicare
benefits.  August 1. 1986 (the effective date of the 
agree to furnish, upon admission. a 
beneficiary. or an individual acting on  (17) ICan individual. regardless of  amendment) and December 21, 1987. or 
his or her behalf. with a written  eligibilty for Medicare benefits. has an  $SO,OO for violations on or after 
December 22 1987. (The amount was 
statement of the beneficiary s discharge  emergency medieal conditon or is in . 
rights. The Statement must explain: .  active labor. the hospital must either  raised by section 400(a)(I).of the 
. (1) The individual' s rights to benefits provide for further examination and  Omnibus Budget Reconcilation Act of 
for inpatient hospital services and for  treatment (within Us capabilities) or  1987 (Pub. L. 100203). effective

posthospital services under Medicare:  make an appropriate transfer of the  December 22 1987.) Each responsible 
(2) The circumstances under which patient to sftothermedical facilty,  physician is also subject to a civil 

. the beneficiary wil and wil not be  unless the tratment or transfer is  money penalty of not more than $2S, 
liable for charges for continued stay in  refused,  for each knowing violation ($SO.OO for 
violations on or after December 22, 
the hospital: '  . (c) A hospital may not transfer a 
(3) The beneficiarys right to appeal  patient uness- 1987). A responsible physician may also 
denials of benefits for continued  (1) (A) He or'he, or a legally be excluded from Medicare 
participation for up to five years. 
inpatient hospital services, includinR the
 responsible person acting on his or her 
practical steps to initate the appeal  behalf. requests the transfer. or (B) a  A responsible physician" Is a 
(4) The individual's liabilty for  physician. or other qualified medical  physician within the meaning of section 
services if the denial of benefits Is  personnel when a physician is not  1861(1')(1) of the Act (doctor of medicine 
upheld on appeal: and readily available, hall certified that the  or osteopathy) who is employed by. or 
(S) Addistiponealc iniffoermsa.tion that the medical benefits expected frm the  under contract with, the participating 
Secretary tratment at the new facilty outweigh provider and acting as such has 
Section 930S(b)(2) of OBRA 86  the increasedriks to the patient'  professional responsibility for the 
requires that we prescribe the language  condition resulting from the transfer:  provision of examina tion or trea tment of 
to be used in the statement not later  and  the individual, or transfer of the

than six months after the effective date  (2) The transrer lsan "appropriate individual. 
of OBRA 86. After we have developed  trnsfer , Bs-defined below.  (e) IC a hospital violates the 
the revised language for the statement  An. "appropriate transfer" is a  requirements of section 1867 and a 
required under OBRA, the hospital!!  transfer: (1) In which the receiving  patient suffers personal harm os a direct 
must begin compl 'ing with the facilty has available space and  result, he or she may, in a civil action 
requirement to give the revised  qualiied personnel for the treatment of  against the participating hospital, obtain 
statement to beneficiaries upon  the patient and has agreed to accept the  damages for personal injury under the 
admission.  transfer and to provide appropriate  law of the State in which the hospital is 
medical tratment: .(2) in which the  located and may obtain such equitable 
D. Rpsponsibilties of Medicare
Participating Hospitals in Emergency.  transfening hospital provides the
 relief as is appropriate. 
Gases  receiving facilty with appropriate  (f) Any medical facility that suffers a
medical records (or copies) of the  nnancialloss as a direct result of a 
The Consolidated Omnibus Budget  examination.andtreatment furnished at  participating hospital's violation of 
Reconcilation Act (COBRA) of 1985 the transferrng hospital: (3) in which the  section 1867 may obtain damages 
was enacted on April 7, 1986. Section  transfer is effected through qualified  available in a civil action against the 
9121 prohibits hospitals with emergency  personnel an transportation equipment.  participating hospital,. under the law of 
medical departments from refusing to  as. required. Including the use of  the State In which the hospital is 
treat medically unstable patients. It also  necessary and medically appropriate life  located. and may obtain such equitable 
contains provisions designed to halt the  support measures during the transfer:  relief as is appropriate. 
inappropriate transfers of these patients  and (4) that meets other requirements as  (g).No civil action under (e) and (f) 
to other medical facilties.  the.Secretary may find necessary in the  above may be brought more than two  " " , .
2216  Thursday, June  Proposed Rules
Federal Register  Vol. 53, No. 116 
 16, 1988 
years tleter the date of the violtltion with  offcials from the Department of Defense  since the hospital's refusal to admit 
respect to which the action is brought.  or Transporttion to notify us and we .  veterans violates 42 CFR 489.26 of thcs 
(h) Section 1867 also contains would then discuss the Issue with the  regulations. 
definitions of several other tens:  hospital in hopes of resolving it. If it  The VA is developing the regulalionli 
emergency medical condition:'  cannot be resolved, the HCFA regional  necessary  o implement the statute (e.g..
participating hosptia1." "active labor,"  offce would terminate the hospital's  , regarding payment methodology). 
to stabilize,  stabilized," and  provider agrement under the provisions  These regulations would apply to 
transfer.  of 42 CFR Part 489, Subpart E. since the  Inpatient servicesJumshed to vetcranti 
(i) The provisions of section 1867 do hospital' s refusal to participate in the  admitted on or after July 1. 1987. 
not preempt any State or local law  CHAMUS or CHAMPV A programs 
C. Statement of Beneficiary Rights
except where they directly confict.  would violate 42 CFR 489.25 of these 
regulations. .  We would add a new section. 42 Cl-' 
II. Prvisions of the Prposed
These revisions would apply only to  489.27. to require participating hospitals 
Regulations  inpatient hospital services fuished to  that furnish inpatient hospital scrvices 
A. Participation in CHAUS and  beneficiaries admitted on or after  to Medicare beneficiaries to give every 
CHAP V  progra  January i, 1987.  beneficiary (or individual actig on his 
Vets
coWmme iwtmouenldts r,e tvoi sseh!o w48 t9h.a2t0 a,  Basic  BA.d Pmarintiisctirpaattiioonn  Hine athlteh  Ca Program.  oard mheirs sboenal tfh)e a "tI morp oabrotaunt t tMhee stsiamge eo ffr
om 
Medicare." We would not specify the 
partcipating Medicare hospital must  To implement section 23 of Pub. 1..  contents of th "Message" in these 
aathngerd eC eC HHtoA PpPaUrVtSic Ai/pC aptHreo giAnr atVhmes   ACaH-nddAe MatecPrcmUeipSnt  ed  9p19a 45r8t7c96i.p,2 aw. tHeio opnsr poaipgtaorlsmse d etoon  natsod tdw  eaint hntee rtw hine  to rreesgpuotniosnibsl.e  8fo8r  twher ihtiogs piti;t awl ew wili nlo t b 
distribute to the hospitals the "Mesllage 
allowable amount as payment in full in  Veters Admistrtion 
program a8  that the hospitals are to use. 
accordance with a new 1 48.25, which  they do if they choose to parcCipHateA inS    We expect the "Important Message 
incorporates statutory provisions.  the Medicare program or the 
In a new section, 42 CFR 489.25, we  or CHV A programs. Instead. the  ftrhoism r uMe ebdeiccoame"e sto f ibnea la. vTahiela lbal ew b iesf soerlef . 
would require Medicae participating  VA authorize. payment for the 
hospitals to be paricipating providers in preadmi8.ion  implementi, and it requires the 
the CHAPUS and CHAPV A  tbraesaiUsO aent ta,  duessuiaglnlya teond  ah ospital that  language for the statement to be 
reui  prescrbed within six month of the 
programs. We would require the  furnishes the serv. We would 
hospitals to comply with Deparuoent of  a Medicre partcipati hospital to  enactment of the legislation and 
distrbuted by hopitals within two 
Defense regulations governing  admit any veteran whose hospitalization 
months after it is preacbed. This rule 
admissions practices and payment  is authorized by the VA under 38 U. 
would merely conform the regulations to 
methodology and amounts for such  60 (this includes emergency casee, 
the statute. 
services. (Those reulations would be  which may be authorized aft 
issued jointly by the Seetaries of  admssion). The hospital would have to  We have revised the earlier " 
DHeufmenanse S, eTrrvaincessp:o CrtaHtionU aSnd  Hhaesa lth and  mreegeatr dthineg r eaqdumireismsieonnt sp .roafc 3ti8c eCsF aRn dP ar 11  iimnrpporotarnatt eM tehses asgtaet ufrtoomry  Mreeqduiicraermee" ntots  
and have solicited comments from major 
published a fmal rue tht contains
 payment methodology and amounts. 
provisions for the implementation of a  This arangement would not afect  beneficiar. and provider organizations,

such as the Gray Panthers. the 
DRG-based payment system, as  hospitals' need to meet all Medicare 
American Hospilal Association and the 
. mentioned earlier.) We would continue 
hospital conditions of partcipation..

the policy that hospitals participating in We would also revise 148.20, Basic  American Association of Retired 
CHAUS and CHAVA that also  commtments. to require hospitals to  Persons. We have also sent the 
participate in Medicare must meet all  admt veteran. whose admission is  Message" to both the Senate and 
Medicare conditions of participation.  authorized under 38 U.  C. 60 and to  Houae Select Committees on Aging. The 
Thus. if CHAPUS or CHPV A have  meet the requirements of 1 489.26- imput from the various entiies have 
requirements for participating that differ  We would also revise 148.  been valuable in determining the final 
from Medicare s, Medicare  Termination by HCFA. to show that  version of the "Message 
requirements would have to be met.  HHS may terminte any hospital that  We would require the hospital to 
We would require hospitals to accept  fails to meet the reuirements  obtain a separate signed 
the CHUS/ CHAPV A-detennined  ! 489.26. Thi8 would be inuded with  ackowledgement from the beneficiary 
allowable amount as payment in full for  the paragraph (11) requirig h08pital8 to  attestig to the receipt of the "Important 
the services provided to these  participate in CHAUS and  Message from Medicare" and to retain a 
beneficiares (less applicable deductible,  CHAMPVA.  copy of the ackowledgement. Effective 
patient cost-share and noncovered  As with the CHUS and  with admissions on and after March 24, 
items).  CHAPV A progrm.. we do not  1986, peer review organizations (PROs) 
In addtion. we would add a new  anticipate that Medica participating have been required to monitor each 
paragraph (11) to 1489.53. Terminations  hospitals wil resist the requiment to  hospital to assure that the hospital 
by HHS. to show that a hospital that  admit veteran8. Should one do 80, we  distributes "An Important Message from 
does not meet the requiements of  would expect the appropriate .official of  Medicare" to all Medicare beneficiaries. 
1 489.25 would be subject to possible  the Veteran8 Administration to notify us  However. in practice. it has been very 
termination. We do not anticipate that  and we would then discs8 the issue  diffcult for PROs to monitor the 
Medicare participating hospitals wil  with the hospital in hopes of reolving it.  Issuance of "An Important Message 
refuse to accept CHAUS or  cannot be resolved, the HCFA  from Medicare" due to a lack of 
IC it 
CHAPV A beneficiares under these  regional offce woadd termnate the  docuentation (i.e.. the "Messagc" is 
proposed requirements. Should one do  hospital' s provider agrment under the  given to the beneficiaries generally with 
so, we would expect appropriate  proviaionl of 42 CFR Par 489, Subpar E.  leveral other infonnational materials  . "
Federal 
Register- Vol. 53. No. 116 / Thursday. June 16. 1988 / Proposed Rules 
22517 
Upon admission but there is no record of 
! 489.24. which incorporates the 
the transaction). We have received  We interpret this to mean, for example, 
statutory requirements. 
complaints that in some instances  that if a hospital were to admit and then 
beneficiaries have not received the  b. We would add a new  489.24, transfer a patient before his or her 
Special responsibilites of Medicare 
Message . were not aware that they  hospitals in emergency cases, to set  condition is stabilized. except as 
received. it, and/or did not realize ilB  forth requirements for emergency cases  provided below, it would be a violation 
significance. It has been suggested. and  of section 1867 of the Act. 

for all hospitals that have provider 
we agree. that requiring the beneficiary 
agreements with Medicare. We would  iii. Transfers and Restrictions.  rf an
to sign a separate. signed  individual at a hospital has an 
require a hospital to take the following 
acknowledgement attesting to the  emergency medical condition that has 
measures. 
receipt of the "Message" is a better  not been stabilized or the individual is 
means of assuring tbat he or she knows  i. Medicpl Screening Requirement.  For in active labor, the hospital could not 
any individuaL regardless of his or her 
that this is an important document that  appropriately transfer the individual 
eligibilty for Medicare, for whom 
should be revewed. Therefore, we are  emergency tratment or examination is  unless one of the following conditions

proposing that the hospital be required  exist: 
requested, we would require a hospital 
to obtain the beneficiary s separate, with an emergency department to  . The individual (or a legally

signed acknowledgement attesting to the  provide for an appropriate medical  responsible person on the individual' 
receipt of the "Message , and to retain a screening examination within the  behalf) requests the transfer. 
cboepliye voef  tthhaet  atchkisn oisw ilmedpgoermtanent tb. oWthe t o  emergency department' s capability to  me. dAic aplh pyesriscoiannn e(lo irf o at hpehry qsiucailainfi eisd not 
determine whether an -emergency

assure that the beneficiary receves and  medical condition exists or whether the  readily available in the emergency 
is sware of the signifcance of "  individual is in active labor. as defined  department) has certifed in writing that, 
Itom apsosrutarne tt hMaet stshaeg de ifsrtrmb uMteiodni coafr iet "c aann d below. The examiations would have  based upon the reasonable risks and 
be conducted by individuals determined  benefits to the individual and the 
wbei tmh ao nniototirceed o. fA psr iosp aolsweda yrsu ltehme ackaisneg .  qualified by hospital by-laws and who  information available at the time. the 
meet the Medicare requirements of 42 medical benefits reasonably expected 
we seek public comment on this  CF 482.55, which are that emergency from the provision of appropriate 
proposed requirement.  services be supervised by a qualified  medical treatment at the other facility 
We would also revise! 48.20. Basic member of the medical staff and that  outweigh the increased risks to the 
commitments, to show that a hospital 
there be adequate medical and nursing  individual' s medical conditon from the 
must distribute the "Important Message personnel qualified in emergency care to  transfer. 
from Medicare 
meet the wrUen emergency procedures  We would consider a transfer to be 
We would add a new paragraph (12) 
and needs anticipated by the facility.  appropriate only if the receiving medical 
to  489.53. Terminations by HHS. to We would allow hospitals maximum facilty has available space and 
show that a hospital failng to meet the 
flexibilty in their utilzation of  qualified personnel for the treatment of 
requirements of ! 489.
27 may be emergency care personnel by not  the individual and has agreed to accept 
terminated. Whether ornot HHS would 
terminate a provider would depend on  including specific requirements  trnsfer of the individual and to provide
HCFA' s judgement as to the scope of the  concerning education or crdentials for
 appropriate medical treatment. The 
individuals conducting emergency  transferring hospital would have to 
failure and the hospital' s corrction or
medical exanations. This  furnish the receiving medical facilty 
plan for corrction of the failure.  policy is
We do consistent with the specified intent of  with timely appropriate medical records 
not anticipate any hospital opposition to 
the requirement that the " the conditons of paticipation (51 
 (or copies) of the examination and 
distributed. We believe wMe aelsrseaagdey"  hbaeve  22010; 42 CF Part 48). tratment provided by the transferrng

ii. Necessary Stabilizing Treatment hospital. The patient would have to be 
full cooperation from hospitals. 
for Emergency Medical Conditions and  accompanied by qualified personnel 
These revisions would apply only to 
Medicare admissions beginning after we  Active Labor.  If the individual has an  during the transfer; transportation 
have distributed "An Important Message aecmtievreg elnabcyo rm, tehdei chaols cpoitnadl iwtioonu lodr  hisa vine  to  uarsrea nogf enmeceenstssa wryo aunldd  hmaevdei ctoa lilnyc lude the 
from Medicare 
provide either further medical  appropriate life support measures. 
D. Hospital Emergency Care exmination and trabnent to stabilze 
Although the statute authorized the 
The revisions to the regulations we  the medical codition or tratment of  Secretary to find that the transfer must 
are proposing would be revisions and  the labo or tnansfer the individual meet "other requirements" in the 
appropriately to another medical 
additions to 42 CFR Part 489, Prvider facility. We would not hold the hospital  interest of the health and safety of 
Agreements under Medicare. and  patients transferred, we are not at this 
revisions to 42 CFR Part 100, Program  responsible if the individual. or a legally  time proposing to adopt any. We do 
IntegritY-Medicare, and Part 100, Civil  responsible person acting on the  however specifically invite public 
MBaosniceayl lPy,e nthael tperso avnisdi oAnsss wesosumlde nptasr. allel  iwnrdiitvinidgu taol ' tsh eb efhuaelf.r r eefuxsaemsi ntoa tcioonns aenndt  in  creoqmumireemnte cnotsn"c ethrnei nSge carneyta "ryo tshheoruld
the statute.  treatment or the appropriate transfer to  consider adopting regarding the health 
another hospita. 

and safety of emergency department 
1. Requirements for Hospitals with Under these provisions. the hospital is 
patients being transferred between 
Emergency Care Departments  responsible for trating and stabilzing medical facilities. 
any individual, regardless of eligibilty 
a. We would revise 42 
CF 489.20, for Medicare. who presents himself or  iv. Definitions.  We would include in 
. which discusses basic commitments, by 42 CFR 489.24 the following definitions
-herself with an emergency pondition at
adding a new paragraph to require  as included in the statute. without 
the hospital. and for providing such care 
hospitals with emergency departents interpreta tion: 
until the condition ceases to be an 
as part of their participation agrement,  -emergency or until the patient is Active labor" means labor at a 
to agree to comply with the new  time when delivery is imminent, there is 
properly transferrd to another facilty. 
inadequate time to effect safe transfer to  . '
..  ""
22518  Federal Register / Vol. 53, No. 116 / Thursday. June 16, 1988 / Proposed Rules 
another hospital before delivery. or a  1867(e)(3) of the Act to make it clear that  participating hospitals that receive Hill-
transfer may pose a threat to the health  providers did not have to execute a new  Burton construction grants and loans to 
and safety of the patient or the unborn  -written agreement specifically to provide emergency medical services to 
child.  obligate them to comply with section  any person who resides (or, in the case 
. An "emergency medical condilon
 1867. Rather, the hospitals are obligated
 of some hospitals. works) in the 
means a medical condition manifested  to comply with the requirements of  hospital' s designated health service 
by acute symptoms of sufficient severity  section 1867 by virtue of the statute and  area. HCFA would of course inform 
(including severe pain) that the absence  their current agreements.  complainants of the outcome of its 
of immediate medical attention could  We would add a definition of  investiga tions. 
reasonably be expected to result in: (a)  participating hospital" and the  HCFA would notify State Medicaid 
Plncing the patient's health in serious  remaining statutory definition, that of  authorities, State licensing bodies, the 
jeopardy: (b) serious impairment to responsible physician , to 42 CFR  Offce of Inspector General. appropriate 
bodily functions: or (c) serious 
Chapter V (Parts 100 and 1003). since  Peer Review Organizations and the 
dysfunction of any bodily organ or part.  these terms are used in conjunction with  Offce of Civil Rights concerning all 
To stabilze" means. with respect monetary penalties, which is under the 
complaint investigations and all 
to an emergency medical conditon, to  jurisdiction of the Offce of Inspector 
termina tion actions. 
provide the medical treatment of the  General. We discuss the definition of 
HCFA would determine whether the 
condition necessary to assure. within  responsible physician " below under  hospital knowingly and wilfully. or 
reasonable medical probabilty. that no  Civil Monetary Penalties,"
negligently, failed to comply with the 
material deterioration of the condition is  We invite public comment regarding 
likely to result from the transfer of the  all definitons.  requirement of  489.24 based on 
individual from a facilty.  c. We propose to amend 42 CFR Parts evidence of (i) inadequate treatment or 
an emSetragbeinlzceyd m" emdeicaanls c. ownidthit iroens.p tehcatt  tnoo   4sa89n.c 1ti0o0n1 sa tnhea t1 0w03o utlod  pbreo vaipdpe lifeodr  btyyp tehse  of  ptraetaietmntesn itn n uont sbteaibnlge  pcoronvdiditeiodn:  o(iri)  in 
material deterioration of the condition is  Department. as appropriate: 
 active labor not being properly 
likely, within reasonable medical  Resolution of Allegations and  transferred as defined in  489.24(dJ(2): 
probabilty. to result from the transfer of  i.  If the  (Iii) the hospital' s actions. or lack of 
an individual from a facility.  . Deevteirdmeinnatcieon  aovf aLiilaabiblliey.  establishes that a  actions, causing a patient's or infant's 
'Transfer '' means the movement  hospital knowingly and wilfully, or  death or serious or permanent 
impairment to a patient's bodily 
(including the discharge) of a patient to  negligently. failed to provide the 
outside a hospital's facilites at the.  appropriate screening and treatment or  functions: or (iv) a hospital' s actions 
direction of any person employed by (or  transfer as explained above, it would be  placing a patient's health in serious 
jeopardy. HCFA would determine the 
affliated or associated with. directly or
 subject to either termination of its 
indirectly) the hospital. but it does not  provider agreement by HCF A or  hospital negligent if the hospital and its 
include moving a patient who has been  suspension of its provider agreement by  personnel failed to exercise care Ihat 
declared dead or wh  leaves the facilty the OIG' in accordance with section  should normally be supplied to a patient 
without the permission of any person  186(b) of the Act. In addition. the OIG  experiencing an emergency medical 
responsible for directing transfers.  can also impose civil money penalties  condition or active labor as defined in 
For the purpose of these definitions.  (CMPs) for knowing violations.  489.24(b). 
the term "hospital" means a Medicare When the Department receives Ii  ii. Termination of a provider
facility certifed as a hospital with its  complaint. or any information or  agreement by HCFA.  HCFA' 
own provider number.  allegation. to the effect that a Medicare  termination authority under this 
We would not define "participating hospital did not appropriately comply  provision is designed so that quick 
provider" in Part 489. This is because 42  with the emergency medical screening.  action may be taken to protect the 
CFR 40.202 defines terms applicable to
 stabilzing, treatment or transfer
 Medicare program. its beneficiaries and 
all of 42 CFR Chapter IV and already  requirements. HGF A would. upon  other individuals- from any potential 
defines "provider . A provider by receipt of all available information and  harm. The termination of a provider 
definition agrees to participate in  evidence. conduct suffcient review to  agreement would be the initial action 
Medicare. The agreement is written and  determine whether the complaint falls  contemplated against a hospital that 
requires the provider to fulfll1:ertain  knowingly and wilfully. or negligently. 
within the jurisdiction of section 1867. 

obligations. Until recently. the existing  so. HCFA would consider the complaint  failed to meet the requirements set forth 
version of the provider agreement  a substantial allegation and would  in  489.24. This section would allow for 
specified provider requirements through  investigate the allegation thoroughly.  the termination of the hospital' 
a series of references to sections of the  HCFA would send each complainant a  provider agreement under Medicare in 
law and regulations applicable to these  letter acknowledging receipt of the  accordance with section 1866(b) of the 
issues: however the COBRA changes  complaint. advising him or her of his or  Act. The termination requirement would 
made it necessary to update these  her rights to consider independently the  be contained in  489. 24 as paragraph 
references to include the new  civil enfortement provisions of section  (e). (The authority to terminate has been 
provisions. In December 1986. we  1867 and stating that it wil refer the  delegated from HHS through the HCFA 
revised the provider agreement forms  complaint to other agencies if during the  Administrator to HCFA Regional 
and sent the revised forms to all  complaint investigation. it determines  Offices. 
participating hospitals to sign. The  that the matter falls under the  HCFA would revise 42 CFR 489.53. 
revised forms were accompanied by a  jurisdiction of other agencies. Thus,  Termination by HCFA. to include in 
letter explaining the new provisions of  HCFA would refer a complaint to the  paragraph (b) failure to comply with (he 
law that affect the obligations of  Offce of Civil Rights if it determines  requirements of 
 489.24 as a mandatory 
providers. (Although not all agreements  that a hospital-may be in violation of the cause for termination of a provider 
have been returned signed to us. section  Hil-Burton Subpart G Community  agreement. HCFA would also revise 
1895(b)(4) of the Tax Reform Act of 1986  Service regulations at 42 CFR  paragr ph (c) to state that. if it 
(Pub. L. P9514) amended section'  124.603(b)(l  .which require Medicare  determines that a hospital is in violation  Federal Register / Vol. 5;, No.- 116' / TJrursday. June 16. 1988 / Proposed Rules  22519 
of 9 489.24(a) through (dl, HCFA would  through 100.115. give notice to the  . In addition to tennination or

consider the violation to pose an  hospital and the public; the suspension  suspension of the provider ngreement, if 
immediate and serious threat to the  would become effective fifteen days  a hospital knowlingly violales the 
health and safety of persons presenting  after the date of the notice. The hospital  requirements concerning screening. 
themselves to the hospital for  would be able to appeal the suspension  treatment and transfer, OIG could also 
emergency services and would  before an administrative law judge of
 impose a civil money penalty of not 
terminale the hospital's approval for  the Offce of Hearings and Appeals of  more than $50.00 for each violation. 
Medicare participation within 2 days of  the Socal Security Administration. The  . OlG could also impose a civil' 
the delermination unless the violation is  suspension would be for a minimum of  money penalty upon each "responsible 
corrected.  30 days. .  physician" of not more than $50.000 for 
In those instances in which HCFA  Tbe notice to the hospital would  each violation. In addition, the DIG may 
determines that a hospital is in violation  specify  exclude the physician from Medicare 
of the requirements of the Act. it wil 
initate termination action. When that  . The legal and Cactual basis Cor the
 participation for up to five years. A 
determination;  responsible physician is a physician 
aelion is resolved. HCFA wil refer the 
e 10 the OIG for possible impositon  . The effective date;  within the meaning of section 1861 (rJ(l) 
of CMPs. If the OIG. upon futher  . That the duration of the suspension  of the Act (doctor of medicine or 
would be for a minimum of 30 days and  osteopathy) who is employed by. or 
inves:ip,Cllion. discovers past violations 
that during the suspension period. the  under contract with the hospital. who. in
that did not form the basis of the  hospital. must demonstrate that further  that capacity. had professional 
tennination aclion. it may decide that a 
sanction is warranted and could  incidents wil not occur or the
 responsibilily for the provision of 
exercise its authority to impose a  suspension wil continue;
 examination or treatment for the 
individual. when the violation occurred. 
suspension against the reinstated'  . That in addition to denial of

payment for Medicare claims, claims for  A physician may be employed by, or 
provider. (See section D.  c. below. 
In instances where HCFA finds no  Medicaid payments wil not be paid for  under contract with. a hospital even 
violation. and therefore does not take an  the care of Medicaid recipients during  though the physician receives no 
action. the closed case would stil be  the period the provider agreement is  compensatiun from the hospital for 
suspended;  furnishing medical servicp.s. 
transmitted to the OIG. If the OIG, upon 
reviewing the  believes that  . That the provider wil have the  For purposes of this provision. a 
caSF! fie. 
furthp.r case development is walTanted,  opportunity to be reinstated after the  physician would be considered under 
it would be free to do so. If OIG'  suspension. in accordance with  contract with the participating hospital, 
invl?stigation indicates that there are  U 100.105 through 1001.114;  and therefore a responsible physician 
additional violations that are not.  . The payment policy in effect during  within the context of these regulations, 
renected in HCFA' s case fie. it would  the suspension: and  if he or she has a written or oral 
refer the new case information back to  . The appeal rights of the hospital.  agreement 10 take professional 
HCFA with a recommendation that  For hospitals paid under the  responsibilily for providing 
HCF A tenninate the hospital's provider  propetive payment system. we  eXRminations or treatment in thf! 
agreement balled on the new findingB.  propose to pay for all covered services  hospital's emergency room for 
Whether or not HCFA takes a  furnished to Medicare beneficiaries  individuals seeking emergency mf!dir.al 
termination oction on a given case. all  admitted before the suspension is  care, or for the proper transfer of these 
invesligated cases wil be referred to the- effective, including payment for a  individuals whether or not the physician 
OIG for possible imposititm of CMPs.  maximum of 30 days after the  receives compensation from the hospital 
iii. Suspension of a provider' . suspension becomes effective for those  for providing the servicF!s. 
ag/'l1l1ent by the DIG Tennination and.  cases that qualify as day outliers. On  In addition. if the provision of 
SlIspenSlon of provider.  Ageements are the other hand, we woud not make any  emergency medical services is shared by 
mutually exclusive remedies: a given  payment for inpatient hospital servicp.s  more than one responsible physician. 
violation or a group of violations of 
 furnished to patients who are admited  each responsible physician could be

section 1867 of the Act may give rise to 
on or afer the effective date of
 held liable and a civil money penalty up 
termination or suspension. but not both.  suspension.  to the maximum amount. as wp.1I as 
However. if HCF A has proposed to 
 For hospitals reimbursed under the  exclusion from the Medicare program 
terminate, or has terminated. the  reasonable cost system, no payment wil  for up to five years, could be imposed 
provider agreement of a hospital based  be made for services prvided to against each responsible physician for 
on one or more specifc violations of  perisoons dadm.i tted during the suspension each violation. 
section 1867, the OIG is not precluded 
We would revise U 1003.100. 
from suspending that hospital' s provider
agreement at a later date if. upon further  Note: The date  oC admission is not  1003.102. 1003.103 and 103.105 to rener. 
investigation. DIG determines that ther  signifcant  Cor  reasonable cost hospitals.  these provisions.

Determination of penalty amounl. 
are  other  violations of section 1867  We are proposing to add a new 
indicating that (1) the pattern of  11001.202 to reflect the above policy  We propose to establish in 42 CFR 
dumping is more widespread than  concerning suspension and we are  1003.106 three specific criteria and one 
HCFA initially believed, or (2) the  proposing to make the necessary  general crih;rion that we would consiclF!r 
additional instances of dumping are so  technical changes to U 100.211 and  in determining the penalty amount
egregious that the penalty of suspension  1001.221  . The degree of culpability of (he

is appropriate.  We prose to add a new section.  hospital and the responsihle physicians. 
When it is determined that a 
11001.23. to give the provider . The seriousness of the individual'

hospital' s provider agreement should be  procedures to follow when it is  conditon in seeking emergp.ncy medicol 
suspended, the GIG would. in
 suspended and wishes to be reinstated  services. 
accordance with its notice and appeals  into the Medicare proram.  . The prior history of the hospital and 
procedures set forth in It 100.100  iv. Civil Monetary Penalties.  General.  the responsible physicians in failing to  22520 
Federal Register  Vol. 53, No. 116'  Thursday. June , 16.  1908'  Proposed Rules 
provide appropriate emergency medical 
courts chiarer direction that such relief 
Documentation of findings. by adding a 
services or appropria te transfers. .  should be within the courts regular equitable 
new paragraph (d) that would require 
. Other matters required by justice, powers and should, be granted for the
We specifically welcome comment on  purpose of remedying tlie violation or  State survey agencies to inform HCFA 
the application of these and other  deterrng subsequent violations. (H.R. Rep. of credible reports of violations of 
possible criteria. and on the inclusion of.  No. 453. 99th Cong.. 1st Sess. 476 (1965).  489.24. 
specifc aggravating and mitigating  We do not believe it necessary or IV. Regulatory Impact Statement
factors, to be considered in levying  appropnate to revise the regulations to
penalties under this provision.  reflect this provision.  A.  Introduction 
We believe that the authority to  vi. Preemption of State law. 
 The . Executive Order (E.  ) 12291 requires
assess civil money penalties against the  legislation provides that it does not us to prepare and publish an initial 
responsible physician as well as the  preempt State or local law except where  regulatory impact analysis for any 
hospital wil be a strong incentive for  there is a conflct with the statutory prop?sed regulation that meets one of 
both the physician and the "hospital to  provision. Since Federal law ordinarily
respond to the medical needs of  the E.O.. criteria for a "major rule ; that
supersedes State law where there is a is. that would be likely to result in: an 
individuals with emergency medical  conflct, it is not necessary to include annual effect on the economy of 
conditions and women in active labor.  this provision in regulations. milion or more; a major increase$ 1in00 , 
HCFA would refer appropriate cases 
costs or prices for consumers. individual 
for possible money penalties to the OIG,  2. Responsibilties of Hospitals 
industries, Federal. State. or local 
while at the same time HCFA wil  Receiving Improperly Transferred 
government agencies. or geographic 
authorize the Medicare State survey  Individual. 
regions: or. significant adverse effects 
agency to conduct a complaint  Prliminary findings of study being on competition. employment. 
investigation if warranted.  conducted by the OIG have confirmed investment, productivity. innovation. or 
preTphoen OdeIGra nwcoeu oldf  thhaev eev tiod epnrocvee t hbayt  ath e  cthoantd ait nounm hbaevre  obfe peant iternantss fine rurendstable eonnt ethrep raisbeilsi ttyo  ocfo Umnpieteted  wStitaht efso-rbeaigsne-d 
hospital or the responsible physician or  improperly and that the cases have not based enterprises in domestic or export 
physicians. or both, failed to provide  been reported to HCFA. Because we  markets. In addition. we generally 
eremqeurgireendc by ym seedcitcioanl  1t8r6a7tm oefn tth ea sA ct. This  ntreeadn tsof eknrosw,  awboeut  are pro0p1/o  siimngp rtoop aedrd a pthraetp iasr ec oan rseigstuelnatt owryit hfl ethxeib Rileitgyu alantaolryys is 
provision would be in 42 
CFR 1003.114.  new paragraph (g) to  489.20 to require Flexibility Act (RFA) (5 U. 
The OIG would notify hospitals and  a hospital that suspects it may have through 612). unless the SecrCe.t a6r0y1 
responsible physicians assessed civil 
received an improperly transferred certifies that a proposed regulation 
money penalties in accordance with 42 
individual to report to HCF A and to the would not have a significant economic 
CFR 1003.109, which includes hospital 
State survey agency. To be in impact on a substantial number of small 
and physician appeal rights. We would 
revise that section to require that the  compliance with this requirement, the enlities. Also. section 1102(b) of the Act
receiving hospital would have to report requires the Secretary to prepare a 
notice would include a description of the 
any suspected incident within 72 hours regulatory impact analysis if this 
epproispoodsee dfo arn wd hwichhy  tthhee  ppeennaallttyy  iiss  being  of its occunce. This requirement proposed rule may. have a signifcant
assessed.  would appear in manual instructions.  impact on the operations of a 
We would also make necessary  We propose to include in 
 489.24 a substantial number of small rural 
paragraph (f) that would require a hospitals. Such an analysis also musf 
technical changes to !  1003.100,  hospital to report promptly patients it conform to the provisions of section 603 
1003.106, 1003.109 and 1003.114 and add  reteives who were transferrd in 
of the RF A. For purposes of the RF A, we 
to part1i0c0ip3.a1t0i1n gd ehfoinsiptiitaonl"s  aonf d  suspected violation of ! 489.24(d). treat all providers as small entities. 
We aillo propose to add a paragraph
responsible physician , as discussed  to ! 48.53(a) to show that failure to B. Impact on CHAMPUS. CHAMPVA.
a hove.  report improper transfers may subject  and V A programs 
v. Civil enforcement
An individual who suffers personal  the receiving hospital to termination of  This proposed rule would require 
harm. or a medical facilty that suffers a  its provider agrement.  hospitals to provide inpatient hospital 
financial loss. as a direct result of the  In those instances in which HCF A  services to individuals who have 
hospital' s violation of a requirement in  determines that a hospital is in violation  insurance covera e under CHAMPUS. 
42 CFR 489.24. may bring a civil action, of  489.20(g), we would initiate  CHAMPV A, and V A programs. Further. 
in an appropriate Federal district court.  termination action.  the CHAMPUS/CHAMPV A-determined 
against the hospital for damages and  3. State Surey Agency Responsibilities  allowable amount from these programs 
must be accepted as payment in full 
other equitable relief as appropriate. No 
, The preliminary findings of the OIG
civil action may be brought more than  (less applicable deductible. patient cost-
two years after the date of the violation.  study also identifed incidents of share and noncovered items). The effect 
improper transfer being reported to the
The Federal district court wil apply the  of these two requirements is the result of 
State survey agency that were not then
law of the State in which the hospital is  the statute, not this proposed rule. 
reported to HCFA. .
located. According to the Conference  To assure that we are aware of all C.  Impact on Hospitals 
Committee Report. the committee 
instances of improper transfer. we also The provision requiring a Medicare 
included the language concerning other 
propose to require the State survey participating hospital with an organized 
equitable relief as appropriate as '  agencies to report promptly any credible
emergency department to provide 
directive to the courts: 
complaintA (thRt is. complaints that are  emergency services within the 
(Tlhe (House of Representativesllanguage specific and detailed enough to be  capabilities of the hospital to any 
allowing courts to grant 'other appropriate investigated) related to violations of individual with an emergency medical 
relief' was also modified to read ' other  section 1867 of the Act..Therefore. we condition and to any woman in active 
equitable relief as appropriate 
. to give the  intend to 'revise  405.1903.  labor would ensUre that everyone in an  Vat 
Federal Register  53. No. 116  Thursday. June 16. 1988  Proposed Rules  22521 
emergenc:y situation wil be, stabilzed  view  oC  the PHS experience we continue  42 CFR Part 1003

before discharge or transfer. or the  to antiCipate tbat incidents wil be 
Administrative pracllce and 
hospital may be tenninated or  sporadic and relatively jsolated. We 
procedure. Archives and records. Grant 
suspended from the Medicare program.  expect this provision basically to 
progrnms""social programs. Maternal 
This provision is also the result of the  Increase the incentives Cor hospitals to 
and child health. Medicaid. Medicare, 
statute and not this proposed rule. and  avoid such inCidents thus improving 
Penalties. 
we have been actively. enforcing the  emergency care Cor uninsured 
statutory requirements. Further. it  individuals.  Title 42 of the Code of Federal 
should be noted that currently; under 42  Regulations would be amended as 
crn 124.60. et seq.. of the PUblic Health  E. ConclusIOn. Collows: 
Service (PHS) regulations. the nearly
 For these reasons, we have  A. Chapter IV is amended as follows:
five thousand hospitals 'nationwide that  determined that a regulatory impact  1. Part 405. Subpart S is amended as
received Hil Burton construction. grants  analysis is not required. Further. we  follows: 
and loans arereqliired to participate In  bave determined. and the Secretary 
the Medicare program if eligible to do  certifieS'. that tbis proposed rule would  PART 405-FEDERAL HEALTH 
so. Under these regulations. hospitals  not have a significant economic impact  INSURANCE FOR THE AGED AND 
are required to provide emergency  on ' a substantial number  oC  small entities  DISABLED 
medical services to any person who  and would not have a signifcant impact 
resides (or. in the case of Some  on the operations of a substantial  a. Tbe authority citation for Part 405. 
hospitals. wQrks)in the hospital'  number of small rural hospitals.  Subpart S is revised to read as follows: 
designa ted health service. area.  Therefore. we have not prepared a  Authority: 42 V.  C. 1302. 1395f. 1395x. 
We believe the great majority  regulatory flexibilty analysis.  1395bb. 1395cc, 1395dd. 1395qq. 1395rr. and 
hospitals do not inappropriately transfer  139511. 
or refuse to treat patients with limited  V. Paperwork Reduction Act
b. Section 405.1903 is amended by 
ability to pay for services. The aggregate 
economic impact of this provision  thiSse cptrioopnso s4e0d5 .r1u9e0 3c.o 4n8t9a.i2n0  inanCdo r4m89a.ti2o7 n  afodldloinwgs :a  new parngraph (d) to read Of! 
should be minimal, primarily affecting  collection requirements. As required by 
oHnilly- Bthuortsoen  haogsrpeeitamlse nnto. tt haolrseea ndoyt  under a  the PaCpe.r w3or5k0 R)e.d uwcteio nh aAcvt e submitteodC  a1 9c8o0p (y44  405. 1903 Documentation of findings. 
complying with their agreements. or 
of this proposed rule to the Executive  (d) If the State agency receives
those hospitals that as a matter of policy
 Management and Budget  credible information (that is, 
have interpreted their obligations  Offce  oC 
(EOME) Cor its review oC these  information that is specific and detailed 
narrowly and refused servces . 
requirements. Otber organizations and  enougb to be investigated) to tbe effect 
individuals not specifically covered by 
the Hil-Durton requirements (i.e.. those  individuals desiring to submit comments  that a bospital has violated  489. 24 of 
on the InCormation collection  this part. the State agency is to' report 
not living or working in the given 
requirements should follow the  the inCormation to HCFA promptly. 
hospital' s designated health serVce 
instrctions in the ADDRESS section.  2. Part 489 is amended as follows:
area).
We 11150 are proposing to require each  VI. Response to Comments a. The authority citation for Part 489 is
hospital to retain a separate. signed  revised to read as follows: 
ilcknowledgement from the beneficiary  coBmecamusee nts woCe  t rhee claerigvee n uombne rp roposed  Authority: Secs. 1102. 1861. 1864m. 18M. 
attesting to the receipt of the "Important regulations. we cannot acknowledge or  1867. and 1871 of the Social Security Act (42

Message from Medicare" and a copy of  C. 1302. 1395x. 1395aa. 1395cc. 1395dd.
respond to them individually; However. 
the "Message" itself. Although tbis and 1395hh). and sec. 602(k) of Pub. 1. 9 
In preparing the final rule. we wil 
would create a slight increase in  (42 V.  C. 1395ww note). 
consider all comments received timely 
hospital administrative costs. it is not  contents is amended 
and respond to the 'maj9r issues in the  b. The table  oC 
expected to affect Medicare or Medicaid  preamble to that rue.  by adding  489.24. 489.25. 489.26. nnd 
program expenditures significantly. 
469.27 to Subpart B to read as Collows: 
Hospital cost increases would be limited  List of Subjects 
to obtaining and retaining the  PART 489-PROVIDER AGREEMENTS 
beneficiary s acknowledgement.  42 CFR Part 405
 UNDER MEDICARE 
However. we believe that over the long  Administrative practice and 
run more inCormed patients should  procedure. Health Cacilties. Health 
reduce the necessity to fie complaints.  proCessions, Kidney diseases, 
Subpart B-Essentlals of Provider
ofC-settng any increased costs.  Laboratories, Medicare. Nursing homes, 
Agreements 
. Reporting and recordkeeping 
D. Impact on Patients
requirements. Rural areas. X-rays.  See. 
abAofvteer- tmheen 1t9i79o nesetdab lHisihlme-nBt urton  oC  the  42 CFR Part 485  24 
489. Special responsibilties of Medicare 
requirement, very few community  Health Caciltles. Medicare, Reporting  hospitals in p.mergency CRses.

service c:omplaints hnve been fied with  and record keeping requirements.  489.25 Sper:al requirements concerning the 
PHS' Offce Cor Civil Rights. although  CHAMPVS and CHAMPV A proRrams. 
numerO!.JR criticisms bave been reported  42 CFR Part 489  489.26 Special requirements concr:minl! 
in tbe mp.dia concerning admissions Cor  Heaith facilties. Medicare.  2v7et erans. 
eme  cncy services. We believe that  289. Beneficiary statp-menl of diRCho!,c 
establishment of an additional. broader  42 CFR Part 1001
 rights. 
requirement and an additional avenue 
 Administrative practice and  c. In ! 489.20. the Introductory text is 
complaint may result in reporting oC a  procepure, Fraud, Heallh facilties.  republished nnd the section is amended 
larger number  oC  Incidents. However. in  Health proCessions. Medicare.  by adding paragraphs (f). (g), (h). (i), and  APPENDIX C 
Steps In Procedures for Response to Complaints of Patient Dumping  ~~~ '" ,.

"""""""".."..."..."....".,"..."...."...."..."..."..."..."...."..."...'..'.'..'.'..'.......................,...''"""""""""""""""",",:"""""",
HCFA PROCEDURE FOR RESPONSE TO

COMPLAINTS OF PATIENT 
DUMPING

HCFA REGIONAL OFFICE 
Warrants Investigation? 
:g.ncy 
(SA)
1111 
t;t
illlllllliIJilil;llllilillillll 
Medical review SA Investigates  OIG FO input
if necessary 
within 5 days  if necesary 
SA forwards findings
within 2 days 
after completion

HCF A review

of SA findings 
Accept SA finding? 
.18 
Initiate re-revlew 
Hospital In compliance? 
Close case  Implement termination procedure 
Refer to OIG

Hospital alleges

compliance before

effectIve date of 
termination? 
Itl 
Direct SA  Termination
to Resurvey  takes effect
Hospital stil out of compliance? 
Do not terminate. 
Monitor & resurvey 
within 60 days  111:Illli:i ....:llllii1llli//I. t
llllllllll1I!I ......
 ' ,  ;::

~~~
'...'........,..-.,...................................."..........'. '.........................
OIG PROCEDURE FOR RESPONSE TO

COMPLAINTS OF PATIENT 
DUMPING

OIG FIELD OFFICE 
HCFA has investigated? 
HCF  11111 
Further Investigation
if necessary 
occurred? 
Viola tion 
IIII 
Close case 
Does hospital represent
threat to patients? 
Has no termination 
action been taken? 
III 
Otf  f:t  tfIC.
aw  ......... ..  .. 
. ..
:.::"\.":.".... ".....-..."".........."."...........".".... ......:.".:.."..,...,..:"..-....'.....'".......'.....'".......'.... ."'.....". ....... "........,..'.. .".....,............."....,.. .....-."........,... ..". ...... ........ "...'.... ...-'.""...."'....... ~.."'...... ,......'..... ."......~ ...:..... ........'...."....~ ."."........".....,. ". ..p" ...~, .."..."...........' ....'!........"............... ... ..'. .. ..'.......,'.......'. .,.'......','......'.....,',.......'-. ...'.,...'."...-..'....'...,.,.'.."...''...... ...... ,'. ............:..... ,.......;......;.........;.....'.....................  ....."........."...........'....".....'...'...'..'.'... ' ..'...'..'...'...'..' ...''......''...'..".'  ..'.:.'..',...'..'...'.~"'...'...' '.....~ .  .."........~~........~..~.......~  ..".........."."........."......'........''......'...'.  .'. '....'.''...'.'...'....'..''..'..~'.'.'.' .....'.'...''...''.~.'.'.....'.'.'.'..''.....'.'.~...'.,.''...' .  ..'.~...'..'......'............:.,  ..:.  .-., . ..............................:........,.'.....,..........:.......\....:...:...::.... :.. ..:... ...... ...... .."..~ . ... "".~...""....'..~"...'....."'.. ..'""....."..."...'..'"...,'"'.... ...,."........."........."........"..
 ....."......."........'...."..... . ...  ' ..... .:.. .
OCR PROCEDURE FOR RESPONSE TO 
COMPLAINT' S OF PATIENT DUMPING 
OCR REGIONAL OFFICE 
n........,-,...

f#mjy"' HQF. 
Establish jurisdiction 
::ii' 
Determine status 
in HCF 
Obtain  ptQr'  :.PP  J:mty.:" m'..:'  Document status 
case da 
In HCF A 
i!i.:: 
Determine whether complaint 
investigation or compliance
review is warranted based on 
Status and results of HCFA  f- Whether complainant consents f- OCR' s determination as to
continued potential for
and/or OIG inve.tigatlon  to OCR's investigation 
life-threatening denial

of emergency medical services 
IIJlJa
ll'li;;  ::.?F9d# ffplii #.:f,v  lii:\:....
lilliMI 
:i!!::.i ijI:0;:j.0 0j.. 
Notiy HCFA & OIG 
of findings
 APPENDIX D

Agency Comments  _.
'----- '--- - 
"---- &.  H/ ,  c'- 0/'  /. /"   ' -": .. -.--:: '-.).. ' --,
.A"'  :CT- .L /
are .v 
Heajth; 
DEPARTME1\T OF HEALTH'  HUMAN SERVICES  . ,;r  i'Li ng Admirli 
He? fL";  Lj(
1vemorandum 
.l"."I':  OCT I 9 100 
Date 
Will i am L. Roper 
strator 
Frvn  Admi n i 
DIG Draft Report: "Patient Dumping after COBRA: U.S. Department of

ect Health and Human Services Response to Complaints, " OAI-12-88-00831 
The Inspector General

Offi ce of the Secretary 
We have reviewed the draft report entitled IIPatient Dumping after COBRA 

The report made four recommendations to the, Department, Office of Civil
Rights (OCR), and HCFA. The recommendations are designed to improve 
coordination and handling of cqmplaints. We are jn basic agreement with

them. 
Our specific cpmments on each are attached for your consideration. 
i ty to 
Th ank you for the opportun  comment on th is report. 
Attachment 
DIG 
AIG-A 
AIG 
AIG. 
ADM 
OG GIG 
EX SEC 
DATE SEN  b/f)() 
C" 
00 . 
cp  Comments of the Health Care Financing Administration

on the OIG Draft Report: "Patient Dumping after COBRA:

s. De artment of Health and Human Services Res onse to
Comp aints, " OAI-12-88-0083 
OIG Recommendations 
The Department should seek to configure responsibilities of the components

in order 
 o provide a unified response to a single complaint, or series of

complaints involving a single hospital, so as to improve response and the 
efficient resolution of complaints.

HCFA Comments 
We currently notify OCR of forthcoming investigations. We will contact

OCR and OIG to pursue the goal of coordinated investigations and whenever

practical 
, combine investigative teams. OCR staff are currently welcome 
accompany the State agency (SA) surveyors. Integration of HCFA and OCR

activities, however, must not delay the investigation. SAs are required

to investigate alleged dumping within 5 workdays of notification. 
OIG Recommendations 
HCFA and OCR should pursue a legislative initiative to align their 
authorities under Hill-Burton and COBRA and to establish a comn 
departmental definition as to what constitutes patient dumping under the

relevant provisions of those statutes.

HCF A Comments 
We will meet with OCR to consider a legislative initiative to align our

authorities under Hill-Burton and COBRA. OCR is currently responsible for 
violations of Hill-Burton which do not also violate COBRA (e.g., 
discriminatiQn against certain types of patients in non-emergency

situations). OCR should continue to be responsible for these types of

cases; there is no rationale for HCFA involvement. 
OIG Recommendations 
In order to develop an efficient and consistent response to complaints, a

set of gu ide 1 i nes shou 1 d be deve loped by the Department wh i ch out 1 i nes 
detail what actions can be taken (termination, suspension, civil money

penalties, etc. 
) in response to varying levels of violations (isolated
incident , pattern of abuse, evidence of willful negligence, etc.  Page 2 - OIG Draft Report

HCF A Comments 
We initiate termination action if there  a single incident, not as a

punitive action , but because our experience indicates that this usually

resu 1 ts in swi ft correct i on of the prob 1 em. Our intent is to as sure 
adequate care in a safe environment which this approach 
accomplishes. We

will gladly participate in a cooperative effort to develop a common set of

guidel ines. 
01 G Recommend at ion 
A set of timeframes for investigation and resolution of complaints should

be deve loped, and a screeni ng mechan ism (such as the SA) used to focus

investigative resources on more productive cases.

HCF A Comments 
HCFA has set deadl ines for each step in the development of an

investigation and uses the SA for immediate screening of allegations.
fully support this recommendation.
 -- 
/.. - ,  +- ;:

'-' ':"'' '. , , . ..''  -'  ;:  /- 
I rc..
 /r
1.  , / C
DEPARTME  T OF HEALTH &. HUMAN SERVICES 
Office of the Secretary 
--j.f-nv 
Washington, DC 
20201 
MEMORANDUM 
DATE  October 5, 1988

CLS qD

FROM  Audrey F. Morton
Director 
Civil  Rights 
Office for 

SUBJECT:  OCR Comments:  OIG Draft Report: "Patient Dumping
After COBRA: U. S. Department of Health

and Human Services (HHS) Response to

Complaints 
" OAI-12-88-00831 
Richard P. Kusserow

Inspector General

Office of the Inspector General

The subj ect Office of Inspector General (OIG) draft

report has been reviewed for comments as requested in

your August 9, 1988, memorandum. Thank you for the

opportuni ty to present the Office for Civil Rights

views on this report.

Your stated purpose for the inspection was to determine

how the various components investigate and respond to

complaints of patient dumping, the problems encoun

tered 
, and the changes needed to correct any past
difficul ties. 
The report, which analyzed the HHS 
investigative procedures in patient dumping utilized by

the Office for Civil Rights (OCR), the Health Care

Financing Administration (HCFA), and the OIG, crys

tallizes some of the major problems confronting HHS

staff involved in investigating complaints of patient

dumping. 
We believe that the identification of these 
problems is a positive step in the Department'

continuing effort to eliminate patient dumping. 
There 
are 
, however, a number of observations made in the 
Findings Section that we feel are inaccurate and

indicate a need for further clarification. 
Our 
comments, as they apply to the various findings or

recommendations presented in the draft 
report, are

provided below.

DIG 
w I .AI'J 
AIG. 
OGC'IG 
EX SEe 

DATE 1.'
. '- t..
 :U K
 9- 130 GB51
....,\ L - " 1 ,  'I J'"'"'. '
 Page 2

Statement of Finding: 
Procedures for the investigation and referral of

still 
edumvpinog lcovmplianintgs a.r e relatively new or are

Under this finding, the report discusses the "
instructions  cases.  new OCR

" concerning dumping 
it is

true that OCR issued additional guidance Wihinle  April 
1988
to its regional offices
, OCR regional offices were not

wi thout written investigative procedures for use in 
conducting patient dumping investigations. 
Al though
the report repeatedly refers to the newness of OCR'

instructions 
, this assessment is inaccurate. 
It does 
not reflect the fact that OCR has investigated 
dumping complaints under its existing investigative

1980. It 
procedures since 
should be noted that the 
primary work of OCR is to conduct complaint investi

gations and compliance reviews. 
Consequently, OCR has
always . had an Investigative Procedures Manual which the 
regional offices utilized to investigate complaints

filed with this office under all of our authorities. 
OCR began conducting compliance reviews of Hill-Burton

assisted facilities and investigating all complaints

filed under the community services regulation pursuant

to a Memorandum of Understanding with the Heal 

Resources Administration (HRA). Al 
though HRA retained
authori ty for the final disposition of complaints and

post-investigative enforcement activities
, OCR

conducted the investigations. 
Patient dumping issues

were a part of a significant number of those investi

gations. On December 8, 1980, OCR was delegated full

responsibility for the community service program. In
January and later in June 1981 OCR issued comprehen

sive manuals on Hill-Burton investigations and these

manuals continue to be used by our investigative staff.
Prior to the COBRA enactment
, HCFA received many

complaints involving patient dumping that were

investigated by OCR
, and in some instances HCFA had an

active role in various stages of those investigations.  .. .
Page 3

Statement of Finding:

OCR issued its only instructions to its regional

offices in April 1988

Again 
, the reference to the newness of OCR instructions 
is not accurate. The April 1988 OCR guidelines were

issued in response to regional requests for more

specific guidance on conducting compliance 
reviews. The

priori ty status 
given to dumping cases was not a result 
of OCR' s lack of instructions to regional offices or

inexperience in investigating patient dumping issues.
The recent priority attached to patient dumping cases

is a direct result of the recent number of HCFA/OIG

referrals to OCR and the need to coordinate with OIG

and HCFA regarding reporting procedures and to ensure

accuracy in reporting.

As stated previously, procedures for investigating

patient dumping cases have been in place since 1981.
Historically, these cases have been investigated not

only under the Hill-Burton authority, but also under

Title VI of the Civil Rights Act of 1964 and Section

p50r4i aotfe t.h e Rehabilitation Act of 1973 when appro

The recent issuance of guidelines for 
handling patient dumping matters was an effort

to refine and enhance procedures for investigations .

patient dumping complaints and compliance reviews. 
OCR' s April 1988 guidelines provide for consistency in 
approaching the issue of patient dumping and uniformity

on a national level in attaching the same priority to

these cases. As a result, the April guidelines provide

more extensive guidance for compliance reviews while

providing only refined guidance in handling complaints.
You will note that the guidance provided on complaints

primarily focuses on the in-take processing of

referrals/receipts and reporting requirements.
Complaint investigation activity continues to be based

on OCR' s existing Investigative Procedures Manual as

well as the Hill-Burton guidelines provided during 1980

and 1981.

Under this same finding, the comment was reported on

page 8 from one regional office that

OCR ... relied 
solely on HCFA' s investigation to determine if a case

has merit because it lacks the necessary medical

expertise. 
" This statement is not accurate.  Page 4

OCR regional offices have routinely used medical

experts from numerous sources, particularly in

investigating AIDS
 aints, 
as well as in prior,  anidn otvhere Secstiotni 5g04 acomtpli
ons of " 
Baby Doe 
complaints. Our instructions to regional offices to

obtain HCFA case files prior to initiating OCR

illustrative of our efforts to avoid 
investigations  is
duplicating efforts and unnecessarily burdening the

recipients. 
This practice has nothing to do with OCR' 
lack of access to medical experts.

In addition, staff comments on page 8 regarding

reliance on HCFA investigations because of 
HCFA' s 
better enforcement authority are vague. To clarify, we

note that there are instances where complaints have

been closed because OCR determines that HCFA has

obtained the same remedies that OCR would have pursued.

This 
, again, is an effort to avoid duplicating efforts 
and unnecessarily burdening the recipients. It also 
should be noted that a number of complaints have been

closed with the instructions that future compliance

reviews be opened. 
For example, in one of the regional 
offices subj act to your inspection, nine (9) complaint

referrals from HCFA were closed as complaints and

opened as compliance reviews, and ten (10) complaints

were closed because HCFA obtained remedies that OCR

would have pursued. The process of converting

complaints into compliance reviews ensures that

questionable practices regarding the recipient'
obligation to treat patients, emergent or otherwise

re investigated by OCR through its compliance review

process. 
The statement on page 8, 
In addition, those instructions detail how a

dumping complaint should be investigated and

indicate that a full on-site investigation should

be conducted. The information to be gathered by

the OCR investigator, according to the Model

Investigative Plan includes:... 
is not accurate. The April guidelines do not provide

details for investigating a complaint. The guidelines 
instruct on 
 processing complaints, i. e. , attaching

priori ty: assigning a special case docket number: using

specific case information management system codes; and

determining the appropriateness of a compliance review.  Page 5

The guidelines refer staff to standard OCR procedures

investigating a complaint  The model investi

when 
the plan for compliance

gative plan referred to  is 
no investigative plan for complaints

reviews; there 
 is 
the April guidelines.

included  in 
Statement of 'Finding: 
There are different conceptions within the Department

as to what constitutes patient dumping. For example

OCR' s instructions indicate that an additional set of 
may be brought to bear on hospitals that

authori  ties 
patient dumping  (page 9) 
engage  in 
OCR is aware that COBRA covers circumstances in which a

patient is denied needed emergency services on a basis

other than an economic factor since COBRA requires

screening of all patients and treatment of all patients

in need. However, the existence of additional

authori ties enforced by OCR makes it mandatory that we

investigate patient dumping cases under. them 
when the 
complainant alleges disc imination on a basis

prohibi ted by 
a specific law. We believe that the 
enactment of Section 9121 of COBRA was not intended to

diminish the enforcement tools available under other

authori ties, but to broaden the enforcement mechanisms

to fit the newly identified instances and bases of

discrimination related to economic factors and termed

as " 
patient dumping.  We also believe that the 
inference that patient dumping can only occur where

COBRA applies is not supportable. 
We believe that

Congress was aware that other legislation existed to

cover this issue on bases other than economics. Where

patterns exist that show individuals are being denied

appropriate emergency treatment based on factors other

than those of economics, we believe that what is

practiced. 
defined as patient dumping is  Where a 
complaint does not involve a Hill-Burton facility, and

the complaint alleges a patient dumping act on the

basis of race, handicap, etc. , OCR will investigate the

nisosute.  whether the act is termed patient dumping or

For the sake of consistency in our approach to 
this investigatory issue, we are convinced the

application of the term patient dumping is appropriate.
As our procedures require, such a complaint will be

referred to OIG and HCFA because COBRA may apply as

well.  Page 6

OCR must investigate under the appropriate authority.
In so doing, the definition of patient dumping is not

expanded to issues beyond that which COBRA intends. 
Some of OCR' s investigations may focus on more than

financial considerations by virtue of the complaint

allegation 
, but we do not believe this poses a problem 
in the handling of patient dumping complaints. In
fact 
, the existence of the additional authorities 
broadens the spectrum of instances and bases where

patient dumping may be identified. 
Recent studies

a growing pattern of minority
mindicaatlee thsat  tbheree ing "  is 
dum  ed" in disproportionate numbers from 
emergency rooms. In these cases, Title VI, Hill-

Burton and COBRA may apply. 
The remedies available

under these authorities. together 
can have a much 
greater impact on this group of beneficiaries than the

remedies available for the limited incident of denial

of emergency services to an individual
, as would be the

case under Hill-Burton and possibly 
COBRA. 
It is stated on page 9, "We did not find any evidence
in the three regions we visited that a complaint of

emergent patient dumping has been pursued under these

authori ties. " The fact that the regional offices

visi ted 
were not regional offices that have 
investigated patient dumping issues under other

authori ties should not be interpreted as an indication

there is a different definition being applied
, or that

such investigations have not been 
conducted. OCR'

conception of patient dumping issues has nothing to do

with the authority under which the investigation will

be conducted. Whether 
a case is classified as patient

dumping depends entirely on the circumstances described

in the allegation and whether the allegation meets the

standard definitions currently defined as patient

dumping by OCR, HCFA, and the OIG.

The existence of additional authorities wi 
thin OCR

that may apply to patient dumping should not be viewed

as tools available to be brought to bear unjustifiably

on hospitals. For example
, in an attempt to avoid

duplicative investigations by agencies wi 
thin the

Department 
, regardless of the authority involved, 
Patient Transfers: Medical Practice as Social Triage

David U. Himmelstein, MD, Steffie. Woolhandler , MD, MPH, Martha
Harnly, MPH, Michael B. Bader, MD, MPH, Ralph Silber, MPH

Howard D. Backer , MD. 
, MD, and Alice A. Jones  AJPH May 1984
Vol. 74, No.
 Page 7

nstruct our regional offices to review

OCR guidelines 
HCFA cases prior to  initiating  investigations. When 
clear that the violation has been remedied and the

is 
what OCR would seek, then a duplicate

remedy  is 
any
investigation will not be initiated under 
authori ty. However, where a complaint alleges

not 
discrimination on the basis of that which 
 is 
the HCFA investigation, OCR investigates

covered  in 
considering the data gathered by HCFA
, to avoid

duplicating HCFA' s efforts and to ensure that all

alleged patient dumping actions are properly

investigated 
, whether under Hill-Burton or other 
ties. 
authori 
This process cannot be circumvented by the notion that

a definition of patient dumping has any effect on the

authori ty under which OCR investigates--the authority

is dictated by the allegations of the complaint. 
Statement of Finding:

OCR' s dumping procedures do not include instructions 
to the regional offices on how to approach non-

emergency patient dumping,....  (page 9) 
This omission exists so that the definition is not

expanded  to non-emergent patient dumping instances 
since such cases continue to be included in our routine

case loads. POlicies and procedures already exist to

cover the handling of these investigations. 
We are

unable to see the benefit to such a reference in

this report.

statement of Finding:

The OCR of ten lacks jurisdiction and has not yet taken 
enforcement action on dumping referrals from HCFA in

the three regions studied  (page 14)

Eleven complaints are referred to as "pending 
" in OCR. 
A more accurate statement would be that eleven

complaints have 
 investigations in progress  This would

be consistent with the term used in Exhibit 2

describing the stages of HCFA and OIG investigations.  Page 8

Also, this comment implies that no changes have

resul ted 
from OCR' s investigations 
not the

case. OCR' s procedures reflect our,  ando tbhils 
igationis  to seek

voluntary compliance whenever 
possible. The mode of

voluntary compliance is a method widely endorsed by the

current administration to remedy violations.

OCR has found this method to be very effective and

successful in OCR negotiations with recipients. 
For
example , during the period of your inspection
, in one
of the regional offices there were two patient dumping

complaints closed with corrective actions secured.
This section of the repor

should be revised to reflect

the full range of OCR inves  activi  ies. 
igative 
RECOMMENDATIONS: 
The Depar ment should seek to configure responsi

bili  ties of the componen s in order to provide a 
unified response 
 o a single complain , or series of

complain 
s involving a single hospital 
, so as 
he efficient resolution of

improve response and 

complaints 
(pages 18 and 19) 
OCR agreies ent dumpihatn ag un ifaield alpperoagcha  ions will impro roesvponed
 the response

resolution of complaints. 
and efficien 
We look 
forward to working wi h o her componen
 o accomplish

reng 
hening the Department' s enforcement efforts in 
this vi  al area. We continue to suppor  j oin
investigations where feasible. 
As you noted, in our

guidance on pa ient dumping to the regional offices, we

recommended that OCR staff coordinate investigative

activi 
ies with HCFA when possible. However
, we do not
agree tha 
OCR should delegate its responsibility for 
investigating patien  dumping complaints under Hill-

Bur  on to HCFA. 
While it is true that COBRA has a more detailed

statutory base and enforcement is stronger under that

authori ty, we do not believe the enactment of COBRA was

ended to diminished the enforcement tools available

under other authorities. Both 
the community service

assurance and civil rights laws are intended to ensure

equal opportunity to all programs or activities funded

by the Department.
 Page 9

with 
OCR has had considerable experience  issues.  in dealing 

are a 
patient dumping 
 Patient  dumping  issues 
authority and are

part of our overall  Hill-Burton 
laws 
ctlhosealy tin taerrreleate d eto nothfeor
 rced by OCR.  nondiscrimination 
approach
The  unified 
recommended to respond to one or more complaints filed

hospital will not necessarily be

against  single 
enhanced by a potential splintering of OCR' s authority.

Many cases that have Hill-Burton aspects also are filed

504 or Title VI.  also
utndrer ue.  Section  The converse  is
coordination 
We believe that the  pursuit  of defined 
the best approach, and one that

between components  is  concerned. It will 
will be equally beneficial to all 
ensure the desired improved response and the efficient

resolution of complaints.

RECOMMENDATION: 
The HCFA and OCR should pursue a legislative initiative

to align their authorities under Hill-Burton and COBRA

and to establish a common departmental definition as to

what constitutes patient dumping under the relevant

statutes. 
provisions of those  (page 18) 
The report contains examples on page 18 used to reflect

the need to align authorities under Hill-Burton and

COBRA , and to reflect the lack of conformity in a 
common definition of emergent patient dumping. OCR

does not consider the examples used reflective of

areas. 
problems in the respective  For instance 
, a
comment . included in the report states: 
For example, lack of medical certification

attesting that the benefits outweigh the risks for

transfer of an unstable patient is a violation of

, but not of Hill-Burton. This lack of 
COBRA 
conformi ty only diminishes the Department'

enforcement authority in this area.

We note that while Hill-Burton does not require that a

physician sign a certification before a hospital may

transfer a person who has an emergency medical

condi tion 
that has not been stabilized or who is 

active labor, the regulation does contain equally

effective requirements to ensure that patients are not

arbi 
trarily transferred or discharged in an unstable  , "

Page 10

condi tion. Hill-Burton emergency provisions require

that appropriate medical personnel determine that

discharges or transfers will not subj ect the person to

substantial risk of deterioration in medical condition. 
no analysis or evidence presented to

There  is 
illustrate how the differences in the requirements of

COBRA and Hill-Burton diminish the Department'

area. 
enforcement authority in this  With OCR retaining 
authori ty to investigate complaints under Hill-Burton

the Department has additional assurance that patient

dumping complaints that include allegations which

cannot be reached under COBRA may be reached by OCR

under Hill-Burton. or additional authorities enforced by

OCR. 
Such would be the case for complaints against
children 
s hospitals that do not receive Medicare funds 
for kidney dialysis  non-hospitals " that provide 
emergency services , and other faci.li ties that are not 
Medicare participants that provide emergency services. 
Again , the report, on page 18, refers to patient 
dumping in a non-emergent setting. The report
indicates: 
AS noted earlier, OCR has authority under Hill-

Burton over patient dumping in a non-emergent

setting. The authority of OCR in this area does

not overlap with HCFA' s authority under COBRA and

this type of violation should not be included in

the common definition of emergent patient

dumping. Further 
, if OCR wishes to bring a 
discrimination action under Title VI or Section

504 for actions that may or aay not involve

emergent patient dumping, it may do so on its own

accord 
, outside the Hill-Burton/COBRA framework. 
The statement appears to suggest that OCR has expanded

its definition of patient dumping. If this is the

intent of the comment, then accompanying evidence

included in the report would be .beneficial to support

such a position. OCR' s def ini tion of patient dumping
includes situations .
in which a hospital that has the 
required service treats an emergent patient, and

instead of admitting the person as an inpatient, either

transfers the patient to another hospital for admission

as an inpatient or discharges a patient that should

phaver obeenh adimbittietd eas dan  inbpatyien tl ona a wgroun.d  that

Our investigative experience has 
shown that too often these patients are still in an

emergent state, that most are discharged or transferred

based on race 
, national origin, or the inability to pay  Page 11

for services, and that many such instances have

resul ted 
in the death of individuals. This is a 
blatant form of patient dumping that certainly the

Department would not wish to consider removing from the

realm of patient dumping in a revised definition.

We do not see that any problems are identified in this

section which result from the present alignment of

authori ties under Hill-Burton and COBRA
, or from the

lack of conformity in a common definition
" of emergent

patient dumping set forth in the examples. 
RECOMMENDATION: 
A set of timeframes for investigation and resolution of

complaints should be developed
, and a screening

mechanism (such as the State 
agency) used to focus

investigative resources on more productive cases

(page 19)

This section references OCR investigative t  eframes as
newly in place in OCR.

This is l.naccurlreL These

investigative timeframes have been in place in OCR

since May 1980 when the Department became the

Department of Health and Human Services. 
This
discrepancy should be corrected. 
As the final report is prepared
, I hope that

consideration will be given to the OCR comments

provided herein. We look forward to discussions wi 
HCFA and OIG to consider the merits of acceptance or

rej ection of the 
recomendations contained in the 
OIG
report. We agree that the development of an efficient

and consistent response to complaints
, and that the

development of Departmental guidelines are required to

ensure that consistent actions are taken in regard to

substantiated cases.

Again 
, thank you for the opportunity to provide our
comments. If there are questions, please have your

staff contact Patricia 
L. Mackey at 245-6118.