August 16, 2004

Mr. Jim Bossenmeyer
Centers for Medicare & Medicaid Services
Center for Medicare Management
Hospital and Ambulatory Group
Mail Stop C5-01-14
7500 Security Boulevard
Baltimore, MD 21244-1850

Dear Mr. Bossenmeyer:

On behalf of the 66,000 Fellows of the American College of Surgeons, we appreciate the opportunity to comment on the Centers for Medicare and Medicaid Services' (CMS) Proposed Implementation Approach for Federal Funding of Emergency Health Services Furnished to Undocumented Aliens. The College welcomes the additional funding provided under section 1011 of the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) which will help subsidize the cost of emergency medical services provided to undocumented aliens.

Covered Services

The College supports CMS' interpretation of covered services under section 1011 which includes "related" physician services. The most recent update to the EMTALA regulation specifies that once a patient is admitted to a hospital as an inpatient, an EMTALA obligation no longer applies. We therefore appreciate CMS' interpretation and clarification in its proposal that payments for unreimbursed emergency services "related" to EMTALA would include both outpatient and inpatient services provided by physicians. We agree that the CMS proposed approach would provide the most comprehensive definition of "related" and effectively capture all costs of care hospitals and physicians have to render as a result of admitting an undocumented alien to the hospital after providing emergency medical screening services.

We do, however, believe that services eligible for section 1011 funds should be limited to screening, stabilization and treatment of the emergent condition with which an individual presents at the emergency department. If an individual presents to the emergency room with an acute condition that requires hospitalization, under CMS' proposed approach, eligible services would include inpatient care. We would urge CMS to clarify that it would not be appropriate for services rendered to treat other conditions, which may be pre-existing or develop while that individual is hospitalized, to be eligible for funds under this program. The College believes this will ensure that section 1011 funds are dedicated to the purposes for which it they are intended—EMTALA-related emergency medical services for undocumented aliens.

Enrollment Application

The MMA requires that CMS allow a hospital to either receive payments for a) hospital and physician services; or b) hospital services and a portion of the on-call payments made by the hospital to physicians. If a hospital chooses to receive both hospital and physician reimbursement, that hospital must notify physicians that it employs or with which it maintains a contract that it has elected this option. In addition, the MMA requires hospitals electing to receive both hospital and physician payments to provide reimbursement to physicians in a prompt manner and prohibits those hospitals from charging an administrative or other fee to physicians for the purpose of transferring reimbursement to physicians.

The College urges CMS to provide appropriate oversight of hospitals under this program to ensure that hospitals that opt to receive payments for both hospitals and physicians promptly transfer the payments due to its physician employees and physician contractors, as is mandated by the MMA. We are concerned that a mechanism that does not provide for direct payment to physicians for the services eligible under section 1011 will result in physicians having to actively pursue hospitals for these funds. Although it is clearly stated in the MMA and in the proposed implementation plan that hospitals are required to pass on payments to its physicians and providers of ambulance services, we believe there is a need for CMS to institute penalties on hospitals if this does not occur in a timely manner.

In regards to the second option in which a hospital can elect to receive payment for hospital services and a portion of the on-call payments made by the hospital to physicians, it is unclear to us how this would be implemented. CMS proposes using Medicare payment rules for billing under section 1011 and to establish reimbursement rates, but there is currently no mechanism that we are aware of in the DRG payment system for hospitals to claim the costs of on-call payments to physicians, beyond billing for the actual service. More importantly, it should be noted that although there are instances that hospitals pay physicians a stipend or other type of payment for EMTALA-mandated on-call services, in most cases, on-call services are provided by physicians without monetary compensation as a part of gaining hospital privileges. If hospitals are somehow compensated under section 1011 for additional on-call costs, any costs incurred by physicians as a result of providing the on-call services should be passed on to them.

Proposed Payment Methodology

Since CMS is proposing a retrospective bill-specific payment methodology, physicians will be required to submit bills or claims for payment on a service-by-service basis, as they currently do under Medicare and other insurance programs. Medicare payment rules will be used to calculate the payments to providers and each provider within a state would receive a payment equal to the Medicare reimbursement rate or, if provider payments exceed the state allotment, providers would receive a proportional payment of the Medicare reimbursement rate. The College supports this proposed approach that would provide an equal discounted rate of reimbursement for all providers if enough funds were not available in a state's allotment to cover all section 1011 costs.

In addition, we believe that establishing a service-based methodology is the best approach to ensure that the actual provider who rendered the service receives the designated section 1011 payment. If hospitals are allowed to submit aggregate charges or employ a proxy methodology, physicians and ambulance service providers could be at risk of losing out on payments for EMTALA-related services for undocumented aliens that they are due. With a claim-specific validation method, CMS will be able to determine the actual cost, based on Medicare payment policy, for the specific service rendered by each provider.

Documentation of Citizenship Status

CMS proposes that providers must collect information from individuals who present to the emergency department, including information on their citizenship status when seeking funds under section 1011. We agree with CMS that the standards for documentation requirements should be consistent with EMTALA requirements, should minimize reporting costs and record-keeping, and should not compromise public health by discouraging undocumented aliens from seeking necessary treatment. However, the College has serious concerns about CMS' proposed approach for documentation for eligibility for section 1011 funds.

The College fears that directly asking individuals who present to the emergency room for the detailed information regarding immigration status that is contained in CMS' proposed form would deter many immigrants from seeking urgently needed medical care. We believe that accurate assumptions on citizenship can be made based on information that is routinely gathered by hospitals during the financial screening process. Indicators such as no Social Security number, a duplicate Medicaid card, a foreign address, no driver's license, or a combination of these should provide CMS with adequate verification of eligibility for section 1011 funds. We strongly urge CMS to reconsider its proposal on account of the administrative burden this requirement would create and the potential that such a process would prevent undocumented, or even legal aliens in dire need of medical attention from seeking care.

The College further urges CMS to clarify in its final implementation approach that any information collected by providers in regards to an individual's citizenship status should only be used for purposes of determining eligibility under section 1011. The information gathered for this process should not be passed on to other Federal agencies for immigration-related purposes.

We appreciate the opportunity to share our concerns and other comments. The College hopes that CMS will implement this program in such a way that it will minimize the amount of resources and time physicians and other health care providers will have to expend on the administration of section 1011 activities and will maximize the funds dedicated to this program for the purpose of emergency care for undocumented aliens.

Sincerely,

Cynthia A. Brown
Director, Division of Advocacy and Health Policy