EMTALA: AN OVERVIEW OF ITS ENDURING ROLE IN EMERGENCY CARE

Transcription

1 RiskRx Clinical Risk Management Newsletter Fall 2016 EMTALA: AN OVERVIEW OF ITS ENDURING ROLE IN EMERGENCY CARE By Irma Spaho, LLB, LLM Introduction: The following article is intended to provide general guidance on some of the core legal obligations mandated under EMTALA and address some of the ramifications that non-compliance would pose for hospitals and physicians. It is not a substitute for legal advice. Determining whether EMTALA applies to your specific case is a fact-based analysis that should come from your legal counsel. Learning Objectives: At the end of this course participants will be able to: 1. Recognize common errors and sources of liability 2. Differentiate the legal duties related to medical screening, transfer and stabilization 3. Identify the need for policies and procedures and an EMTALA compliance checklist 4. List the repercussions in cases of violations Accreditation: Coverys designates this enduring material for a maximum of 1.25 AMA PRA Category 1 Credits TM. Physicians should claim only the credit commensurate with the extent of their participation in the activity. Coverys is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. Coverys is accredited as a provider of continuing nursing education by the American Nurses Credentialing Center s Commission on Accreditation. This nursing activity has been approved for up to 1.2 contact hours. Course content is related to clinical risk management and patient safety. Medium and Method of Participation: For successful completion of this online activity, providers will read the following article and complete an online assessment with a score of 80 percent or higher for a maximum of 1.25 AMA PRA Category 1 Credits TM or 1.2 nursing contact hours. The assessment that accompanies this newsletter is available online at Coverys policyholders may access the assessment free of charge with a discount code. Contact Coverys Education at CESupport@Coverys.com or ext to request the code. Providers who do not have Internet access may call ext for assistance. One Financial Center 13th Floor Boston, MA tfn Author: Irma Spaho, LLB, LLM Expert Commentary: Robert A. Bitterman, MD, JD, FACEP Advisor: Geri Amori, PhD, ARM, CPHRM, DFASHRM Faculty Disclosure Statement: The course advisor, authors and planning committee have no relevant financial relationships to disclose. Target Audience: Healthcare administrators, physicians (all specialties), risk managers and nurses. Estimated Completion Time: The estimated time to complete this activity is one hour. Date of Release & Term of Approval: This activity was released on August 1, 2016, is reviewed annually and will expire on January 1, 2019.

2 v... EMTALA requires that all individuals with similar complaints or medical conditions be treated similarly, regardless of their ability to pay, national origin, race, age or citizenship status. WHAT IS EMTALA? The Emergency Medical Treatment and Labor Act (EMTALA) is a landmark federal statute that was passed by the U.S. Congress in 1986 to ensure equal access to healthcare for indigent and uninsured patients. The Act was passed as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985, and it is sometimes referred to as the COBRA Law. It is also known as Patient Anti-Dumping Law, Patient Transfer Act, 42 U.S. Code 1395dd, and Social Security Act Notwithstanding the controversies it has ignited over the scope and depth of its mandates over the past 30 years, EMTALA remains one of the most comprehensive laws guaranteeing equal access to emergency healthcare. EMTALA s Reach EMTALA applies to Medicareparticipating hospitals that have emergency departments. Medicareparticipating hospitals are hospitals which have entered into provider agreements with the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS). The provisions of EMTALA apply to all individuals who come to a hospital s emergency department and seek examination or treatment for a medical condition, regardless of whether they are Medicare beneficiaries, uninsured or have private insurance. EMTALA requires that all individuals with similar complaints or medical conditions be treated similarly, regardless of their ability to pay, national origin, race, age or citizenship status. EMTALA does not apply to private hospitals that do not receive Medicare funds, Veterans Affairs hospitals, Indian Health Service hospitals, some military hospitals, or non-hospital-owned free-standing emergency departments or urgent care centers. Also, the principal provisions of EMTALA do not apply to physicians. However, physicians may be subject to liability under some circumstances, as will be addressed later in the article. REGULATORY DEFINITIONS In order to understand EMTALA, one needs to understand the controlling statutory definitions contained in the original statute and in the subsequent regulations. The legal definitions often differ from the medical definitions, but the statutory definition renders irrelevant any medical definition. 1 Emergency Department EMTALA s screening and stabilizing requirements apply only to Medicare-recipient hospitals that have an emergency department. In the Final Rule effective November 10, 2003, CMS revised the definition of a hospital with an emergency department to mean a hospital with a dedicated emergency department (DED). The current definition is as follows: Dedicated emergency department means any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus, which meets at least one of the following requirements: 1. It is licensed by the State in which it is located under applicable State law as an emergency room or emergency department; 2. It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or 3. During the calendar year immediately preceding the calendar year in which a determination under this section is being made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment. 2 2 RiskRx Facility Edition Fall 2016

3 ... Comes to the Emergency Department The 2003 CMS final regulations clarified when a person is considered to have come to the emergency department. Comes to the emergency department means, with respect to an individual who is not a patient, the individual: 1. Has presented at a hospital s dedicated emergency department, as defined in this section, and requests examination or treatment for a medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual s appearance or behavior, that the individual needs examination or treatment for a medical condition; 2. Has presented on hospital property, as defined in this section, other than the dedicated emergency department, and requests examination or treatment for what may be an emergency medical condition, or has such a request made on his or her behalf. In the absence of such a request by or on behalf of the individual, a request on behalf of the individual will be considered to exist if a prudent layperson observer would believe, based on the individual s appearance or behavior, that the individual needs emergency examination or treatment; 3. Is in a ground or air ambulance owned and operated by the hospital for purposes of examination and treatment for a medical condition at a hospital s dedicated emergency department, even if the ambulance is not on hospital grounds. However, an individual in an ambulance owned and operated by the hospital is not considered to have come to the hospital s emergency department if (i) The ambulance is operated under communitywide emergency medical service (EMS) protocols that direct it to transport the individual to a hospital other than the hospital that owns the ambulance; for example, to the closest appropriate facility. In this case, the individual is considered to have come to the emergency department of the hospital to which the individual is transported, at the time the individual is brought onto hospital property; (ii) The ambulance is operated at the direction of a physician who is not employed or otherwise affiliated with the hospital that owns the ambulance; or 4. Is in a ground or air nonhospitalowned ambulance on hospital property for presentation for examination and treatment for a medical condition at a hospital s dedicated emergency department. However, an individual in a nonhospital-owned ambulance off hospital property is not considered to have come to the hospital s emergency department, even if a member of the ambulance staff contacts the hospital by telephone or telemetry communications and informs the hospital that they want to transport the individual to the hospital for examination and treatment. The hospital may direct the ambulance to another facility if it is in diversionary status, that is, it does not have the staff or facilities to accept any additional emergency patients. If, however, the ambulance staff disregards the hospital s diversion instructions and transports the individual onto hospital property, the individual is considered to have come to the emergency department. 3 v... EMTALA s screening and stabilizing requirements apply only to Medicare-recipient hospitals that have an emergency department. 3 RiskRx Facility Edition Fall 2016

4 v... The only purpose for the MSE is to determine with reasonable clinical confidence if an emergency medical condition (EMC) exists. An appropriate medical screening does not equal a correct diagnosis. Hospital Property The Code of Federal Regulations defines hospital property as the main campus and areas within 250 yards of the main buildings, including the parking lot, sidewalk and driveway, but excluding physician offices, rural health centers, skilled nursing facilities, shops and other nonmedical building. 4 Emergency Medical Condition An emergency medical condition is defined as: 1. A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in: (i) Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy; (ii) Serious impairment to bodily functions; or (iii) Serious dysfunction of any bodily organ or part. 2. With respect to a pregnant woman who is having contractions: (i) That there is inadequate time to effect a safe transfer to another hospital before delivery; or Capacity (ii) That transfer may pose a threat to the health or safety of the woman or the unborn child. 5 Capacity means the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual. Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment and the hospital s past practices of accommodating additional patients in excess of its occupancy limits. 6 LEGAL DUTIES UNDER EMTALA EMTALA imposes three primary legal duties for all Medicare-participating hospitals: (1) provide a medical screening examination (MSE) for all patients arriving at the ED to determine whether the patient has an emergency medical condition; (2) stabilize patients who have an emergency medical condition when possible, or appropriately transfer the patient to another hospital capable of stabilizing the patient; and (3) accept appropriate transfers from other less capable hospitals. Duty to Provide a Medical Screening Examination When an individual seeks examination or treatment at a hospital s emergency department, EMTALA imposes an affirmative duty on the hospital to: Provide an appropriate medical screening examination within the capability of the hospital s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists. 7 The statute does not define an appropriate MSE. The courts interpret this requirement to mean an examination that is reasonably calculated to determine if the patient has an emergency condition and which is applied uniformly on a non-discriminatory bases to all patients presenting with the same or similar symptoms. In Summers v. Baptist Medical Center, the Court noted, it is up to the hospital itself to determine what its screening procedures will be. Having done so, it must apply them alike to all patients. 8 The only purpose for the MSE is to determine with reasonable clinical confidence if an emergency medical condition (EMC) exists. An appropriate medical screening does not equal a correct diagnosis. Thus, while EMTALA requires a hospital emergency department to apply its standard screening examination uniformly, it does not guarantee that the emergency personnel will correctly diagnose a patient s condition as a result of this screening. 9 In Jackson v. East Bay Hospital, the Ninth Circuit Federal Appellate Court ruled: 4 RiskRx Facility Edition Fall 2016

5 ... [A] hospital satisfies EMTALA s appropriate medical screening requirement if it provides a patient with an examination comparable to the one offered to other patients presenting similar symptoms, unless the examination is so cursory that it is not designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury. 10 Furthermore, as the court in Scruggs v. Danville Regional Medical Center of Virginia LLC found, triage is not the equivalent to an EMTALA-required MSE. 11 Triage is a system of prioritizing when the patient will be seen by the physician or qualified medical personnel. As set forth in the CMS Interpretive Guidelines: The MSE must be conducted by an individual(s) who is determined qualified by hospital by-laws or rules and regulations and who meets the requirements of concerning emergency services personnel and direction. The designation of the qualified medical personnel (QMP) should be set forth in a document approved by the governing body of the hospital. If the rules and regulations of the hospital are approved by the board of trustees or other governing body, those personnel qualified to perform the medical screening examinations may be set forth in the rules and regulations, or the hospital by-laws. It is not acceptable for the hospital to allow informal personnel appointments that could frequently change. 12 In Correa v. Hospital San Francisco, the First Circuit Court of Appeals sided with plaintiffs in finding that, absent any explanation or mitigating circumstances, the Hospital s inaction here amounted to a deliberate denial of screening. 14 The patient had been waiting at the hospital s emergency room for at least two hours without being seen, when her daughter decided to drive her to her doctor s office, where she ended up passing away as her doctor was preparing transportation to a hospital. 15 A medical screening may not be delayed to inquire about the patient s insurance status or ability to pay. It is prudent to establish parallel tracks for obtaining insurance information and stabilizing the patient, with a caveat that whatever information is garnered may not be used to alter the course of the examination and treatment. 16 Physician On-Call Obligations A hospital s obligation to provide on-call coverage stems from both statutory and regulatory provisions. Section 1866(a)(1)(I)(iii) of the [Social Security] Act states, as a requirement for participation in the Medicare program, that hospitals must maintain a list of physicians who are on call for duty after the initial examination to provide treatment necessary to stabilize an individual with an emergency medical condition. 17 The duty to maintain an on-call list is a general provider participation requirement in the Medicare program and applies to all hospitals. It is not an EMTALA-specific requirement. In addition, the CMS regulations require hospitals to maintain: An on-call list of physicians who are on the hospital s medical staff or who have privileges at the hospital, or who are on the staff or have privileges at another hospital participating in a formal community call plan, in accordance with (j)(2)(iii), available to provide treatment necessary after the initial examination to stabilize individuals with emergency medical conditions who are receiving services required under in accordance with the resources available to the hospital; 18 Clearly, the statute and regulations place the burden of providing on-call services on the hospitals, not physicians. Physicians accept on-call v... When on-call, the physician represents the hospital, not their private practice. The hospital is directly liable for the actions and inactions of the physician. A screening cannot be unduly delayed. Such a delay may be viewed as an EMTALA violation RiskRx Facility Edition Fall 2016

6 v... The on-call list must be posted in the ED and a record of it be maintained by the hospital for five years. responsibilities in accordance with the hospital s medical staff by-laws and rules and regulations. When on-call, the physician represents the hospital, not their private practice. The hospital is directly liable for the actions and inactions of the physician. It is important to note: if a medical problem for which they have been asked to consult in the ED is beyond their particular scope of practice but is a problem commonly cared for at that hospital, it may be considered their responsibility to find someone to care for the patient. 19 The hospital must list the on-call physicians by name, not by their practice group. If there are changes to the on-call list, those changes must be provided to the ED. The on-call list must be posted in the ED and a record of it be maintained by the hospital for five years. The ED physician may obtain a phone consultation with the on-call physician or may require the on-call physician (or, if appropriate, his/her PA or NP) to come to the hospital and examine the patient. If asked to come to the hospital, the on-call physician must report within a reasonable time, as specified in the hospital s bylaws or policies and procedures. In May of 2009 CMS dropped its mandate that hospitals place in writing the required response time for true emergencies in minutes ; instead, it reverted to its prior requirement that the the on-call physician must respond within a reasonable time. However, CMS states that a hospital would be well advised to establish the maximum number of minutes that may elapse between receipt of a request and a physician s appearance in the ED. 20 Absent extenuating circumstances, the response time used by CMS surveyors is minutes. However, it is noteworthy to mention that some states have laws and/or regulations that mirror EMTALA and require a response within 30 minutes in special cases, such as trauma services. For example, the New Jersey Administrative Code states, Promptly available means that personnel can be attending patients at the trauma center within a maximum of 30 minutes from the time they are called. 21 Additionally, CMS provides: If a physician on-call does not fulfill his/her on-call obligation, but the hospital arranges in a timely manner for another of its physicians in that specialty to assess/stabilize an individual as requested by the treating physician in the DED, then the hospital would not be in violation of CMS on-call requirements. 22 Hospitals must establish in writing what it means to be on-call; what procedures to follow if a particular specialty is not available or if an on-call physician is unable or unwilling to respond; define the role of advanced practice professionals in providing on-call services; and finally, address the follow-up duties for on-call physicians. If a hospital permits simultaneous call, then it must have written policies and procedures to follow when the on-call physician is not available to respond because he/ she has been called to another hospital. All hospitals where the physician is on-call need to be aware of the details of the simultaneous call arrangements for the physician and have back-up plans established. When a physician has agreed to be on-call at a particular hospital during a particular period of time, but also has scheduled elective surgery or an elective diagnostic or therapeutic procedure during that time as permitted by hospital policy, that physician and the hospital must have planned back-up in the event the physician is called while performing elective surgery and is unable to respond to an on-call request in a reasonable time. 23 If the hospital has to transfer an unstable patient because the on-call physician did not respond to the ED physician s request, the sending hospital has to provide the name and address of the on-call physician to the receiving hospital, which has a legal obligation to report the violation to CMS RiskRx Facility Edition Fall 2016

7 ... Duty to Stabilize Patients with an Emergency Medical Condition EMTALA does not apply to stable patients. If the hospital determines that the individual has an emergency medical condition (EMC), the hospital must stabilize the medical condition before transferring or discharging the patient. The term to stabilize (with respect to an EMC) means: to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility 25 A psychiatric patient is considered stable when he/she is no longer considered to be a threat to himself/ herself or others. 26 A pregnant woman with contractions and a pregnancy-related emergency is considered stable when she has delivered the child and the placenta. 27 EMTALA s application to inpatients has caused a split among the federal courts. The Ninth Circuit in Bryant v. Adventist Health System West held that the stabilization requirement normally ends when a patient is admitted for inpatient care. 28 In 2003, CMS codified this interpretation of EMTALA in the Code of Federal Regulations, which reads as follows: If a hospital has screened an individual and found the individual to have an emergency medical condition, and admits that individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its special responsibilities under this section with respect to that individual. 29 Nevertheless, in late 2008, the Sixth Circuit rejected CMS s interpretation of EMTALA with regard to inpatients in its controversial case of Moses v. Providence Hospital & Medical Centers, Inc. The appellate court panel interpreted EMTALA s protections to be initiated upon a patient s arrival at the hospital and to end only when the patient is fully stabilized, irrespective of whether the patient has been admitted to inpatient care for ongoing medical treatment. 30, 31 The Sixth circuit s redefinition of EMTALA s scope, enormously expanded hospital liability and essentially turned EMTALA into a federal medical professional liability statute for patients with EMCs admitted through the hospital s ED. Duty to Complete an Appropriate Transfer The general rule under EMTALA with regard to transfers is that if an EMC has been identified, and the hospital is capable of stabilizing the patient, the patient may not be transferred. The term transfer has been defined as follows: Transfer means the movement (including the discharge) of an individual outside a hospital s facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital, but does not include such a movement of an individual who (i) has been declared dead, or (ii) leaves the facility without the permission of any such person. 32 Patients may be transferred if they have been stabilized, if they request a transfer, or if the hospital lacks the capability or capacity to stabilize their EMC. If the hospital is unable to stabilize the patient within its capability/capacity, the treating physician should certify that the benefits from the transfer outweigh the risks, obtain the patient s informed consent, and arrange an appropriate transfer to a hospital capable of stabilizing the patient. The elements of an appropriate transfer are: Ongoing medical treatment within the hospital s capacity until transfer by qualified personnel/ appropriate medical equipment Copies of all medical records, as well as the name and address of any on-call physician that has refused to appear should accompany the patient Confirmation that the receiving hospital has space and qualified personnel to take care of the patient v... A psychiatric patient is considered stable when he/she is no longer considered to be a threat to himself/herself or others RiskRx Facility Edition Fall 2016

8 v... Patients may be transferred if they have been stabilized, if they request a transfer, or if the hospital lacks the capability or capacity to stabilize their EMC. Confirmation that the receiving hospital has accepted the transfer Agreement (in writing) by the patient or his/her representative to the transfer, after being informed of the hospital s obligations and the potential risks of the transfer Certification by the treating physician that the benefits from the transfer outweigh the risks 33 With regard to a patient who refuses to consent to a recommended transfer: A hospital meets the requirements of paragraph (d)(1)(ii) of this section with respect to an individual if the hospital offers to transfer the individual to another medical facility in accordance with paragraph (e) of this section and informs the individual (or a person acting on his or her behalf) of the risks and benefits to the individual of the transfer, but the individual (or a person acting on the individual s behalf) does not consent to the transfer. The hospital must take all reasonable steps to secure the individual s written informed refusal (or that of a person acting on his or her behalf). The written document must indicate the person has been informed of the risks and benefits of the transfer and state the reasons for the individual s refusal. The medical record must contain a description of the proposed transfer that was refused by or on behalf of the individual. 34 Duty to Accept Transfers Hospitals with specialized capabilities (e.g., burn units, NICUs, shock-trauma units) have a duty to accept the transfer of unstable patients from other hospitals that do not have the capacity to treat such patients. CMS regulations state that even hospitals without a dedicated emergency department must accept these patients in transfer. 35 However, CMS does not require hospitals with specialized capabilities to accept inpatients from other hospitals, even if the treating hospital is incapable of stabilizing the patient s emergency condition. 36 Hospitals do not have a duty to accept transfers from outside of the United States (which is defined to include, for EMTALA purposes, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, American Samoa, and Guam). MISCELLANEOUS OBLIGATIONS Duty to Report If the receiving hospital has reason to believe the incoming patient was transferred in violation of EMTALA and the patient arrived in an unstable condition, it must report the violation to CMS or to the state survey agency within 72 hours. 37 Failure to report is a violation under EMTALA and exposes the receiving hospital to potential expulsion from Medicare. 38 Whistleblower Protection 42 CFR (m) provides protection for a physician or a hospital employee for reporting a violation of EMTALA requirements. Signage Requirements EMTALA requires hospitals with an ED to conspicuously post a sign advising patients of their right to emergency services regardless of their insurance status and also indicating whether the hospital participates in the Medicaid program. 39 Record Maintenance Pursuant to EMTALA requirements, hospitals with an ED must maintain a central log of all patients coming to the ED seeking emergency care, an on-call physician roster, and patient transfer records. 40 EMTALA WAIVERS The 2010 CMS Final Rule revised the applicability of EMTALA sanctions under Section 1135(b)(3) of the Social Security Act (the Act) for impermissible re-direction of individuals with an EMC and for inappropriate transfers in cases of an emergency or a disaster declared by the President, or a public health emergency declared by the Secretary of the Health and Human Services (the Secretary). The Secretary may grant waivers to hospitals with an ED located in the defined emergency areas. The waiver is limited to 72 hours from the implementation of the 8 RiskRx Facility Edition Fall 2016

9 ... disaster protocol, or in the case of a pandemic infectious disease, until the termination of the public health emergency, and is a waiver of sanctions only. The individual physicians and the receiving hospitals are not subject to the waiver. Also, the waiver does not apply to private actions brought by individuals or hospitals for EMTALA violations. When a hospital activates its disaster plan and intends to use the waiver, it must notify the Department of Health and Human Services (HHS), so that HHS can track which hospitals are using waivers. EMTALA ENFORCEMENT EMTALA enforcement is complaintdriven. 41 Any legal person has standing to file a complaint alleging an EMTALA violation, including a hospital, a patient representative, a physician or a state surveyor. The statute of limitations to bring an action under EMTALA is two years from the date of the violation. 42 The Centers for Medicare and Medicaid Services (CMS) and the Office of the Inspector General of the Department of Health and Human Services (OIG) share responsibility for enforcing EMTALA. Once a violation is reported, CMS initiates an investigation. If a violation is found, past or present, the CMS refers the case to the OIG for assessment of civil monetary penalties. Violations of EMTALA are also reported to the Justice Department for assessment for Hill-Burton Act infractions and to the Office of Civil Rights for assessment of discriminatory practices. Penalties for an EMTALA violation may include: Fines up to $50,000 for hospitals and physicians who negligently violate the statute (or up to $25,000 for hospitals with less than 100 beds). 43 Termination of the hospital s or physician s Medicare Provider Agreement for repeated violations or even for a single gross and flagrant violation. 44 Expulsion of physicians from Medicaid and other state or federal programs. 45 Imposition of punitive damages on both on-call physicians and hospitals, which are not covered under medical professional liability insurance. Civil action suits in federal or state courts against the hospital (but not physicians) by persons harmed by a hospital s violation of EMTALA. Hospital versus hospital litigation for financial loss suffered as a result of an EMTALA violation. Medical/nursing boards investigation/potential license revocation. EMTALA is not a medical professional liability statute. A violation of EMTALA creates a separate cause of action in which the plaintiff does not need to establish deviation from the standard of care, but rather only disparate treatment in emergency care or a violation of an EMTALA requirement. Medical professional liability actions are governed by state law and based on the four pillars of tort negligence: duty, breach of the duty, causation and damages. However, an EMTALA incident may lead to a medical professional liability action under respective state laws and vice versa. An EMTALA claim is an advantageous vehicle for a plaintiff to push a weak malpractice action into federal courts, where the peer review privilege, caps on damages, and notice requirements may not generally apply. All the information obtained during an EMTALA investigation can be obtained through the Freedom of Information Act and help guide a plaintiff s medical professional liability action, though the information is typically not admissible in the actual court proceedings. TAKEAWAYS OF BASIC CONCEPTS Provide a medical screening exam. Stabilize or appropriately transfer if an emergency medical condition exists. Do not delay for economic reasons. Accept transfers if hospital has capacity. If not, document why. List on-call physicians by name. Adhere to signage requirements. Maintain a central log of patients coming to the ED seeking emergency care v... The statute of limitations to bring an action under EMTALA is two years from the date of the violation RiskRx Facility Edition Fall 2016

10 v... Take care of the patients first and foremost! Providing timely and appropriate care reduces the risk of an EMTALA violation. Maintain an on-call physician roster and patient transfer records. On-Call Physicians If on-call, respond appropriately. Do not make excuses; do not engage in a debate; do not delay responding in order to determine payment/insurance status or to obtain a managed care authorization. Do not transfer a patient for convenience. If unavailable to be on-call, notify the ED promptly. The treating ED physician determines which on-call physician to call and whether that physician must come to the ED. Document the conversation with the ED physician, the plan of action for the patient and who is carrying out which duties in the patient s medical record. If you transfer a patient to another hospital because an on-call physician refuses to respond, your hospital is required to provide the receiving hospital with the name and address of that provider. According to ACEP failure to provide this information would violate EMTALA. 46 When on-call, the physician represents the hospital, not his private practice. Outside the Scope of EMTALA The patient, representative or a prudent layperson observer does not request an MSE. There is no EMC. No EMC = no EMTALA duty The patient refuses treatment in writing. The patient is stabilized. Medicare Conditions of Participation govern outpatient care. Once an outpatient treatment and procedure begins, EMTALA does not apply even if the patient is moved to the hospital s emergency department for necessary medical intervention. CMS says EMTALA does not apply to inpatients. Some courts may overrule CMS s regulation if inpatients are transferred/ discharged while not stable. Telephone contact by a patient or his/her physician does not constitute comes to the ED. EMTALA - COMPLIANCE BEST PRACTICES Monitoring and ensuring compliance with EMTALA s fact-driven legal requirements amidst contradictions in the law, federal courts division and the rapid expansion of the legal obligations poses many challenges for hospitals and physicians alike. Following are some risk management recommendations to consider in order to avoid and/or to better defend EMTALA claims. Take care of the patients first and foremost! Providing timely and appropriate care reduces the risk of an EMTALA violation. Have policies and procedures in place for compliance with the EMTALA requirements and apply them religiously. Failure to follow hospital policies and procedures is a growing area of liability and litigation. Be sure to have all EMTALArelated policies and procedures reviewed by an attorney who is well-versed in such matters. You should also seek and obtain your attorney s advice regarding any pertinent state-specific statutes that may also apply. Incorporate EMTALA compliance requirements into the hospital s overall compliance plan, so that the governing body shares in the oversight. Mandate EMTALA education for all medical staff members and other hospital employees who may come into contact with a patient. Recognize high-risk scenarios and educate staff members on best practices. Ensure that the roles and responsibilities of medical personnel are clearly defined; clearly designate who may perform an MSE. Define hospital capabilities, especially with regard to on-call coverage and referring/accepting 10 RiskRx Facility Edition Fall 2016

11 ... transfers. The response time to the ED should be established in hospital policies. Ensure that hospital policies and procedures address transferring patients during declared disaster/ emergency situations. If the hospital has capacity, accept all appropriate transfers. Maintain on-call roster for five years (physicians identified by name). Define in writing what it means to be on-call and what constitutes a reasonable response time. Oversee on-call physician performance. Review all forms, logs and signs to ensure that they comply with EMTALA requirements. Audit policies and procedures to determine whether they are complete, up to date, and comply with the EMTALA requirements. Do not ask for insurance information/financial status until an MSE and/or stabilization has begun or the transfer of a patient with an EMC has been accepted. Create parallel tracks for obtaining insurance information and stabilizing the patient, but under no circumstances should the former interfere with or unduly discourage the latter. Set up a system for reporting suspicious transfers and document all incoming and outgoing transfers. Confirm that whistleblower protections are in place. Monitor compliance with the EMTALA requirements constantly and address EMTALA violations aggressively. Prepare a corrective plan of action ahead of a CMS investigation. Document MSEs and stabilization activities. Documentation is everything! A well-written EMTALA compliance plan is powerful, but only effective if staff members follow it and document compliance with it. EXPERT COMMENTARY The primary goal of any risk management program, whether you are the insured provider, the insurance company, or a risk manager/ compliance officer, is to foresee and forestall risk. This proactive approach requires everyone involved to understand and maintain a sound working knowledge of the basic aspects of any particular area of risk. With respect to the Emergency Medical Treatment and Labor Act (EMTALA), those underpinning basics are the rules set out in the statute and the interpretations of the law codified by the Centers for Medicare and Medicaid Services (CMS) in its published regulations and interpretive guidelines. This article provides a solid summary of the tenets and principles of EMTALA for those just entering the risk arena or those already intimately involved in addressing the many-faceted risks associated with this far-reaching law. Even chiseled veterans of EMTALAspeak should periodically review the governing interpretations of the statutory and regulatory language to properly address new and/or unfamiliar scenarios that continue to arise under the law. It is particularly important to focus on the known major and most expensive pitfalls, as well as emerging issues, such as: Accepting or rejecting patient transfers from other hospitals. Do you know who at your hospital is formally delegated, in writing, the authority to accept or reject transfers on behalf of the hospital? The on-call physicians? The emergency physicians? The transfer center nurse? Do the physicians/nurses involved in the transfer acceptance process know the law on when they must accept patients and when they can decline patients? Do they know that when on-call they represent the hospital, not their private practices? Education, education, education Has the governing board decided whether the hospital will accept inpatients needing specialty care in transfer from other hospitals? If your hospital is in the 6th Circuit (Michigan, Ohio, Kentucky and Tennessee) have you considered the impact of the Moses case, which may require v... Do the physicians/nurses involved in the transfer acceptance process know the law on when they must accept patients and when they can decline patients? 11 RiskRx Facility Edition Fall 2016

12 v... How does your emergency department handle waiting times, so as to avoid delay in care amounting to a constructive denial of a person s federal right to a medical screening exam (MSE)? you to accept unstable inpatients in transfer from other hospitals, directly contrary to CMS s interpretation on this issue? How will you handle the likely reticence of physicians to participate in the transfer acceptance process when they learn that the Office of Inspector General intends to impose $50,000 monetary penalties against physicians who refuse to accept an appropriate transfer, even though legally the duty to accept transfers rests with the hospital, not the physicians? (See 79 Fed. Reg et seq. at: fdsys/pkg/fr / pdf/ pdf.) Crowding, boarding, delay of care, and patient refusal of care. How does your emergency department handle waiting times, so as to avoid delay in care amounting to a constructive denial of a person s federal right to a medical screening exam (MSE)? Do you have a system in place to capture and document instances when patients leave before the screening exam: i.e., can you prove a negative that you didn t deny the person an MSE? How do you document patient refusal of the medical screening exam compared to refusal of stabilizing treatment or transfer; and do you appreciate the distinct legal differences between the two scenarios under EMTALA? Is examination or treatment in the ED delayed in any way by asking for insurance or co-payments? Do you know that CMS no longer allows a hospital to collect any co-payment or down payment before it completes the patient s medical screening exam? Do you understand and have you implemented CMS s recent guidance clarifying EMTALA policy related to the Affordable Care Act and third-party payers, including state Medicaid programs? (See: Medicare/Provider-Enrollmentand-Certification/ SurveyCertificationGenInfo/ Downloads/Survey-and-Cert- Letter pdf.) How do you maintain stabilization of psychiatric patients boarded in your ED who are awaiting admission or placement elsewhere? Are boarded psychiatric patients reevaluated (and their vital signs and the physician reevaluation always documented) just prior to the transfer to an accepting psychiatric facility? The role of advanced practice providers. Have the medical staff and the board of the hospital definitively delineated when and where advanced practice providers can function as qualified medical personnel to provide medical screening examinations in the ED or L&D? Exactly how will they function in the ED relatively independently or through written protocols that define which patients they can see alone and which patients must also be seen by the emergency physician on-duty? Exactly how will they be supervised and how will that supervision be documented in the medical record? Will advanced practice providers participate in the ED on-call list? If so, how will they be utilized and when are the on-call physicians required to participate in the patient s care either by phone or in person in the ED? Hospital policies and procedures. Has someone with intimate knowledge of the legal ramifications of EMTALA meticulously reviewed the hospital s EMTALA policy and the sundry implementing emergency department policies/ procedures such as the triage system, nursing assessment, medical screening, obstetrical screening, on-call physicians, and transfer policies? Failure to follow the hospital s own policies, i.e., failure to follow your own rules is unquestionably a painful recurring reason for litigation and liability under EMTALA. EMTALA continues to evolve and expand; and how the controlling government agencies and the courts 12 RiskRx Facility Edition Fall 2016

13 ... interpret and enforce the law seems to also change with the times. It behooves all of us involved in providing hospitalbased emergency services and risk management/compliance efforts, whether day-to-day in the trenches or in leadership positions, to constantly reeducate ourselves and remain vigilant to deal with the many risks associated with this all-encompassing law. REFERENCES 1. Burditt v. U.S. Department of Health and Human Services, 934 F.2d 1362 (5th Cir. 1991) CFR (b). 3. Ibid CFR (b) and 42 CFR (a)(2) CFR (b). 6. Ibid CFR (a)(1)(i). 8. Summers v. Baptist Medical Center Arkadelphia, 69 F3d 902 (8th Cir 1995), Review on rehearing 91 F.3d 1132 (8th Cir. 1996). 9. Baber v. Hospital Corporation of America, 977 F2d 872, 879 (4th Cir. 1992). 10. Jackson v. East Bay Hospital, 246 F.3rd 1248 (9th Cir. 2001). 11. Scruggs v. Danville Regional Medical Center of Virginia LLC, W.D. Va., No. 4:08CV00005, 9/5/ U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS), State Operations Manual - Appendix V Interpretive Guidelines Responsibilities of Medicare Participating Hospitals in Emergency Cases, Rev. 60, 07/16/ Scruggs v. Danville Regional Medical Center of Virginia LLC. 14. Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. 1995). 15. Ibid CFR (d)(4). See also Robert Bitterman, EMTALA Compliance Update for 2015, Coverys HCPE Webinar, U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS), State Operations Manual - Appendix V Interpretive Guidelines Responsibilities of Medicare Participating Hospitals in Emergency Cases, Interpretive Guidelines (r)(2) and (j) CFR (r)(2). 19. Joseph Zibulewsky, The Emergency Medical Treatment and Active Labor Act (EMTALA): What it is and What it Means for Physicians, Proceedings (Baylor University Medical Center), Vol. 14, No. 4, 2001, pp Robert A. Bitterman, EMTALA and ED On-Call: How to Manage This Dilemma, ACEP Scientific Assembly, Boston, MA, October 6, 2009, Boston2009/data/papers/TU-77. pdf, 10/20/ New Jersey Administrative Code, 8:43G U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS), State Operations Manual - Appendix V Interpretive Guidelines Responsibilities of Medicare Participating Hospitals in Emergency Cases, Interpretive Guidelines (r)(2) and (j). 23. Ibid CFR (e)(2)(iii) and 42 CFR (m) CFR (b). 26. U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS), State Operations Manual - Appendix V Interpretive Guidelines Responsibilities of Medicare Participating Hospitals v... It behooves all of us involved in providing hospital-based emergency services and risk management/compliance efforts... to constantly reeducate ourselves and remain vigilant to deal with the many risks associated with this all-encompassing law. 13 RiskRx Facility Edition Fall 2016

14 ... in Emergency Cases, Interpretive Guidelines (d)(1)(i) CFR (b). 28. Bryant v. Adventist Health System West, 289 F.3d 1162 (9th Cir. 2002) CFR (d)(2)(i). 30. Moses v. Providence Hospital & Medical Centers, Inc., 561 F.3d 573 (6th Cir. 2009), certiorari denied, No , 2010 WL (U.S. June 28, 2010). 31. W. Adam Malizio, Moses v. Providence Hospital: The Sixth Circuit Dumps the Federal Regulations of the Patient Anti-Dumping Statute, Journal of Contemporary Health Law & Policy, Vol. 27, No. 1, 2011, pp CFR (b) CFR (e) CFR (d)(5) CFR (f)(1). 36. Joanna Conder, Lessons Learned from EMTALA Enforcement, Journal of Health Care Compliance, May-June 2009, citing Final Rule, 73 Federal Register 161, (Aug. 19, 2008). 37. U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS), State Operations Manual - Appendix V Interpretive Guidelines Responsibilities of Medicare Participating Hospitals in Emergency Cases, (m) and Interpretive Guidelines to (m). 38. Ibid CFR (q) CFR (r). 41. U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS), State Operations Manual - Appendix V Interpretive Guidelines Responsibilities of Medicare Participating Hospitals in Emergency Cases, Part I Investigative Procedures United States Code 1395dd. 43. Ibid. 44. U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS), State Operations Manual - Appendix V Interpretive Guidelines Responsibilities of Medicare Participating Hospitals in Emergency Cases, Part I Investigative Procedures United States Code 1395dd. 46. American College of Emergency Physicians. Clinical & Practice Management: On-Call Responsibilities for Hospitals and Physicians. Quality Advisory Available from Practice-Management/ On-Call-Responsibilities-for- Hospitals-and-Physicians/. RiskRx is a publication of Coverys Risk Management Department. This information is intended to provide general guidelines for risk management. It is not intended and should not be construed as legal or medical advice. COVERYS tfn e CESupport@coverys.com 14 RiskRx Facility Edition Fall 2016