Download WHATS-NEW-WITH-EMTALA_3_6_2015

How do you evaluate
Hospital Compliance?
Kathy Whitmire
Managing Director
HomeTown Health, LLC
Objectives:
Describe the general EMTALA requirements
Discuss provisions including On Call and Transfer
requirements
Define ways to avoid EMTALA violations


The Emergency Medical Treatment and Labor
Act (EMTALA) is a federal law that requires
anyone coming to an emergency department
to be stabilized and treated, regardless of
their insurance status or ability to pay, but
since its enactment in 1986 has remained an
unfunded mandate.
EMTALA was enacted by Congress in 1986 as
part of the Consolidated Omnibus Budget
Reconciliation Act (COBRA) of 1985
(42 U.S.C. §1395dd)


According to the law, EMTALA applies when an
individual "comes to the emergency department.“
CMS defines a dedicated emergency department
DED as "a specially equipped and staffed area of
the hospital used a significant portion of the time
for initial evaluation and treatment of outpatients
for emergency medical conditions."
◦ This means for example, that hospital-based outpatient
clinics not equipped to handle medical emergencies are
not obligated under EMTALA and can simply refer
patients to a nearby emergency department for care.
An emergency medical condition (EMC) is defined as a
Medical condition manifesting itself such as the
absence of immediate medical attention may result in:
Placing health in serious jeopardy.
 Serious impairment to bodily functions.
 Serious dysfunction of any bodily organ or part

Pregnant Women That transfer may pose a threat to
the health and safety of the woman or unborn child.
 For example, a pregnant woman with an emergency condition
must be treated until delivery is complete, unless a transfer under
the statute is appropriate.

Definition specified at CFR 489.24 (b)
Updated EMTALA clarifications under 489.20
defines obligations for physicians responsible
for the examination, treatment, or transfer of
an individual in a participating hospital,
including a physician on-call for the care of
that individual.
 The regulations created pursuant to section
1867 of the Act are found at 42 CFR 489.24.

https://oig.hhs.gov/authorities/docs/2014/fr-79-91.pdf
Documenting whether the patient:
q
q
q
q
Refused treatment
q Was refused treatment
Transferred
q Stabilized and transferred
Admitted
q Treated
Left against medical advise (AMA ) q Discharged
qDocument patient’s signature on AMA form or at least the
attempt to get the patient’s signature.
qHospital may maintain separate logs for departments that may
meet the definition of a DED, e.g. ED, L & D and Pediatrics
qPatients who leave before opportunity to log q Gather: Date, time, individual characteristics
q and if possible nature of complaint
Provide an appropriate Medical Screening Examination
(MSE) regardless of diagnosis, financial status, race,
sex, color, national origin or disability.
 Performed by a physician or other Qualified Medical
Personnel (QMP)
 QMPs approved by the governing body may include:
Physicians, Nurse Practitioners, Physician Assistants and RNs.
 Allows a certified mid-wife and other designated QMPs for
certifying false labor
Purpose of Medical Screening Examination (MSE) is to
determine with reasonable clinical confidence the
presence or absence of an Emergency Medical
Condition (EMC).
MSE must be conducted using all capabilities of the
DED including all specialist on-call.
Medical Screening Examination 489.24(a)(1)(i)
continued…
 Record must reflect continual monitoring
 Parking patients arriving via EMS
 Not allowed neither immediately nor indefinitely (Apply
reasonable standard)
Note: Triage is not a MSE
Specifically, the individual presented to the Olive
View emergency department with signs of
appendicitis and severe abdominal pain that he
rated at a 10 on a 10-point scale.
Despite his severe pain and symptoms, he was
forced to wait for several hours to receive an MSE.
After waiting for 6.5 hours, he left to seek medical
screening and treatment at another hospital, where
he was diagnosed with acute appendicitis with a
large peritoneal abscess and had to undergo an
immediate laparoscopic appendectomy.. Continued
According to EMTALA, if an individual comes to a
hospital emergency department and a request is made
on his/her behalf for examination or treatment for a
medical condition, the hospital must provide for an
appropriate MSE within the capability of the emergency
department to determine whether or not an emergency
medical condition exists.
$40,750 settlement resolves allegations that
provider violated the Emergency Medical
Treatment and Labor Act, (EMTALA), by failing to
provide an individual with an appropriate medical
screening examination (MSE) within the capability of the
hospital's emergency department in order to determine
whether he had an emergency medical condition.
Applicable only if:
The MSE determines the individual is suffering from an
EMC and Hospital has the capacity and capability.
The hospital must:
Provide further examination and treatment to stabilize
the EMC.
Definition of Stabilized - 489.24(b)
◦ No material deterioration of the condition within reasonable
medical probability occurring during the transfer of the
individual.
◦ For women in labor will be the delivery of the child and
placenta.
The EMTALA obligation ends when the QMP certifies that:
1) That no EMC exists (underlying condition may persist)
2) That an EMC does exists and the individual is
appropriately transferred to another facility
3) That an EMC exists and the individual is admitted to
the hospital for further stabilizing treatment.
1) Admission must be in good faith in order to stabilize the EMC
(overnight stay)
4)
Patient refuses stabilizing treatment (Also applicable
on transfers)
1) Hospital should communicate benefits and risks of treatment
or transfer and get a written informed refusal from the
patient.
Delay in examination or stabilizing treatment:
 Reasonable registration allowable but must not delay
an appropriate medical screening examination (May
include insurance info)
 May not inquire about method of payment
 May not require pre-authorization from insurance
 Physician consultation must be relevant to EMC
Stable patients in Thomas v. Christ Hospital, the
Seventh Circuit remanded the case to the district court to
determine whether a hospital violated EMTALA by
discharging a patient before she was stabilized.
 A man brought his wife to the hospital because she
was crying profusely, driving recklessly and speaking
incoherently. The social worker evaluating her noted
she demonstrated manic-like symptoms and was
deeply agitated.
 The social worker concluded the patient was suffering
from a psychosis induced by a steroid she was taking
for a respiratory condition. . . .
http://www.eslaw.com/Uploads/HealthLaw
/EMTALA1.pdf
 Because the hospital’s psychiatric ward had no available
beds, the social worker recommended admitting the
patient to another part of the hospital or transferring her
to another facility.
 The emergency room doctor agreed with the social
worker’s diagnosis, but didn’t agree that the patient
presented a risk to herself or others, and discharged her.
Before discharge, the doctor advised the patient to
discontinue the steroid and to make an appointment to
see her personal physician as soon as possible.
 Three days later, the patient died when she struck a light
pole while driving 80 miles an hour.
 Her husband sued the hospital for discharging the patient
with an emergency medical condition. The trial court
granted summary judgment for the hospital and the
husband appealed. The hospital didn’t contest that the
patient had an emergency medical condition, but instead
argued that the patient was stable when discharged.
 THE SEVENTH CIRCUIT COURT FOUND the social
worker’s medical record entries and her testimony
compelling on the issue of the patient’s stability. The court
found the facts known and recognized by the hospital
staff at the time of discharge indicated that the staff had
reason to know that the patient may well have been
unstable.
https://oig.hhs.gov/auth
orities/docs/2014/fr-7991.pdf
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Reporting Requirement 489.20(m)
 Within 72 hours of the discovery to CMS or State Survey
Agency
EMTALA rights sign 489.20 (q)
 Noticeable by all individuals in any area of the ED.
 Specifying the examination and treatment rights of
individuals and women in labor requesting an
examination for a medical condition.
 Whether the hospital participates in Medicaid.
 Legible within 20 feet or from any vantage point.
Retention of Medical Records 489.20 (r)
 5 years for any patient transferred to and from hospital)
Maintain an On-call list of physicians 489.20 (r)(2)
 Either for phone consultation or to present to the ER
and provide stabilizing treatment.
 Hospitals must be prospectively aware before
physicians are allowed to:
 Schedule elective surgery, diagnostic or therapeutic procedure
during on call duty
 Be on simultaneous on call duty at two or more facilities
 Participate in a formal community call plan.
 To allow exemptions from the on physician on-call list
 To determine the frequency and specialty of the on call
physician coverage
 Sufficient on call specialty coverage reflecting the services
offered by the hospital
SEE ARTICLE
www.acep.org
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EMTALA enforcement actions apply to both physician
and hospital when an on-call physician fails or refuses
to appear (reasonable time) and fulfill on-call
responsibilities.*
*Except when hospital arranges for another on-call
physician to respond.
Note: Hospitals must have planned back-up in the event
the physician is called during elective surgery or already
responding to another request. Physician Group Names
are not acceptable for identifying physicians on-call.
Specifically, the patient came to the DCH emergency
department with a gunshot wound in his abdomen
region.
 The emergency department physician determined
that the on-call general surgeon needed to
evaluate and treat the patient and the staff
contacted the on-call general surgeon multiple
times.
 The on-call general surgeon indicated that he
was performing a previously scheduled elective
surgery in the operating room.
 DCH's emergency department was unable to find
another general surgeon to evaluate and provide
stabilizing treatment to the patient.
 The on-call general surgeon then performed a
second previously scheduled elective surgery in
the operating room, without first evaluating and
providing stabilizing treatment to the patient in
the emergency department.
 After waiting approximately two hours at DCH,
the patient died, never having received an
evaluation or stabilizing treatment from a general
surgeon
OCTOBER 30, 2014 FINDING :
 $40,000 fine was imposed for EMTALA
violation by the on-call physician failing to
conduct an appropriate medical screening
examination and provide stabilizing treatment
to a patient who came to the DCH emergency
department with an emergency medical
condition.
The Emergency Medical Treatment and Active
Labor Act (EMTALA) of 1986—often referred to as
the patient anti-dumping law—requires a hospital
to:
 stabilize a patient's emergency condition within
its capabilities prior to transfer, and
 a hospital may not transfer an unstable patient
unless the patient requests transfer or a
physician certifies that the benefits of transfer
outweigh the risks.
Under EMTALA hospitals/physicians can be fined
up to $50,000 per violation.
Definition of Transfer 489.24(b)
“The movement (including the discharge) of an
individual outside a hospital’s facilities at the
direction of any person employed by the
hospital”
489.24(e)(3) Hospital cannot penalize or take
adverse action against QMPs or employees for
reporting an EMTALA violation
Transfers should be exercised after:
1) Patient has been logged
2) Patient has received an appropriate medical
screening examination
3) Patient emergency has not been stabilized
4) Hospital has minimized the risks of the
individual’s health or the unborn child but
does not have capacity and capability to
stabilize the EMC.
Appropriate Transfer Requirements :
1) Individual is in agreement with the transfer
after being informed of risks and benefits
(when patient unconscious physician
certification applies)
2) Physician has certified that medical benefits
outweigh the risks of the transfer (QMP may
certify in the absence of a physician)
3) Hospital has contacted an accepting facility
with the appropriate space(capacity) and
staff/equipment (capability).
4) Transferring hospital must send all pertinent
records with the patient
5) Transfer is effected through qualified personnel
and transportation equipment
1)
2)
Medicare Participating Hospitals within US
boundaries
Hospitals that have special capabilities
including but not limited to:


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

3)
Burn units
Shock-trauma units
Psych Hospitals
Neonatal ICU
Regardless of whether the hospital has a DED
Hospital may not refuse an appropriate transfer
of an unstable individual who requires the
specialized capabilities if the receiving hospital
has the capacity to treat the individual’s EMC.
Must accept patients that were put on
observation status
Transport Service should not be a condition
for accepting the transfer
Physician may not refuse on their own (over
the phone) diagnosis of patient
An equally capable hospital may not refuse
an appropriate transfer if the transferring
hospital:
4)
5)
6)
7)



Has a serious capacity problem
Mechanical failure of equipment
Loss of power
A TN provider paid $40,000 to settle allegations by the
OIG that it broke the law when it transferred a patient
that had come to its emergency department after
consuming a bottle of antifreeze without first stabilizing
the patient's medical condition.
Emergency room personnel, it is alleged, determined the
patient should be admitted to an intensive care unit and,
despite the availability of a bed in the hospital ICU, the
patient was sent elsewhere because the hospital did not
accept the patient's insurance.
The Emergency Medical Treatment and Active Labor Act
(EMTALA) of 1986—often referred to as the patient antidumping law—requires a hospital to stabilize a
patient's emergency condition within its
capabilities prior to transfer, and a hospital may
not transfer an unstable patient unless the patient
requests transfer or a physician certifies that the
benefits of transfer outweigh the risks.
Under EMTALA providers can be fined up to $50,000 per
violation.
https://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp
EMTALA enforcement actions apply to both physician
and hospital when an on-call physician fails or refuses
to appear (reasonable time) and fulfill on-call
responsibilities.*
*Except when hospital arranges for another on-call
physician to respond.
Note: Hospitals must have planned back-up in the event
the physician is called during elective surgery or already
responding to another request. Physician Group Names
are not acceptable for identifying physicians on-call.
Civil Monetary Penalties (CMPs) may include:
Termination of the hospital or physician's
Medicare provider agreement.
Hospital fines up to $50,000 per violation
($25,000 for a hospital with fewer than 100
beds).
Physician fines $50,000 per violation, including
on-call physicians.
In addition, the hospital may be sued for
personal injury in civil court under a "private
cause of action"
489.20 states that both CMS and the OIG have
administrative enforcement powers with regard
to EMTALA violations.
 There is a 2-year statute of limitations for civil
enforcement of any violation.
 IMPORTANT - A receiving facility, having
suffered financial loss as a result of another
hospital's violation of EMTALA, can bring suit
to recover damages.
NOTE: An adverse patient outcome, an
inadequate screening examination, or
malpractice action do not necessarily indicate
an EMTALA violation; however, a violation can
be cited even without an adverse outcome.
 There is no violation if a patient refuses
examination &/or treatment unless there is
evidence of coercion.
The EMTALA law renders many common practices among
physicians and hospitals illegal, even though physicians
may think that what they are doing is prudent or simply
good business.
 Physicians may view their actions as harmless, but
substantial fines may result. Here are common errors
by physicians on call to emergency departments (ED)
and the situations pertinent to each.
When asked to come in to see an ED patient:
1) Debating with the ED physician over the necessity of
coming in. Once the request is made to come in,
the duty attaches. In addition,
EMTALA places the decision power with the
physician with "eyes on“ the patient.
1) Debating with the ED physician over the necessity of
coming in.
Once the request is made to come in, the duty
attaches. In addition, EMTALA places the decision
power with the physician with "eyes on“ the
patient.
2) Refusing to come in and suggesting that the patient
be seen by another specialist.
The on-call physician must respond to all ED
requests. A neurosurgeon's refusal to come in based
on a bona fide belief that another specialist would be
better suited to the patient's needs still will be cited.
3) Refusing to come in and ordering the patient
transferred to another facility because of severity or
scope of condition.
EMTALA requires the requested physician to respond.
Phone evaluation is not sufficient if the ED physician
asks the specialist to come in to see the patient. If the
patient is too serious after specialty evaluation, the
duty of making the transfer belongs to the specialist.
If the ED physician asks only for a phone consultation,
then merely giving a phone consult is not a violation,
but should be documented by the ED physician as a
phone consultation.
4) Instructing the ED physician to admit or to run various
testing and delaying coming in to see the patient until
a later time.
EMTALA requires prompt response within a
"reasonable" time. These times are not extended by
necessary or prudent testing or by admission. Delays
in seeing admitted patients often lead to violations for
failure to promptly stabilize the patient.
5) Declining the patient based on the patient's apparent
needs exceeding the physician's scope of practice.
EMTALA requires physicians to render care within
their privileges, not their scope of usual practice.
The physician specialist must come in and justify in
writing any transfers and effect the transfer.
6) Declining the patient because of the payer plan
status or self-pay status.
EMTALA requires services to be rendered regardless
of means or ability to pay. Where evaluation or
stabilizing care, including surgery, is not complete,
EMTALA prohibits seeking advance approval from
insurance companies or plans. (EMTALA does not,
however, require the payer to make payment for the
services.)
7) Declining the patient because he or she was
previously discharged from the physician's practice
for prior litigation or non-compliance.
While the patient has the right to decline the on-call
physician, the on-call physician does not have the
right under EMTALA to decline the patient.
8) When covering more than one hospital on call:
Asking that a patient be sent to the hospital where
the on-call physician is currently seeing patients
instead of going to the patient's location.
EMTALA requires all care to be rendered in the
hospital where the patient presents. The only
circumstances where the request to transfer would
be valid would be if the needs of the patient could
not be met in timely fashion where the patient
presented, the requested transfer would allow more
timely intervention for patient safety and response
of the on-call physician was not possible (i.e.,
currently involved in surgery). Thorough
documentation would be important.
Kathy Whitmire, Managing Director
HomeTown Health
REFERENCES:
http://statelaws.findlaw.com/florida-law/hospital-liability-the-federal-emergencymedical-treatment-and-l.html
https://www.thesullivangroup.com/products_services/ps_emtala_quiz.asp
http://www.acep.org/News-Media-top-banner/EMTALA/
http://www.eslaw.com/Uploads/HealthLaw/EMTALA1.pdf
https://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp
http://www.aans.org/Media/Article.aspx?ArticleId=9997