December 2016 COMPLIANCE NEWSLETTER Cheri Benander, MSN, RN, CHC, NHCE-C Director of Compliance Consulting Services, HealthTechS3 NAVIGATING THE MAZE Cheri Benander, MSN, RN, CHC, NHCE-C Director of Compliance Consulting Services, HealthTechS3 This month s article is written by Carolyn St.Charles, MBA, BSN, RN, Regional Chief Clinical Officer, HealthTechS3. Emergency Medical Treatment & Labor Act (EMTALA) In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented. 1 Current EMTLA regulations can be found in the State Operations Manual, Appendix V, Interpretive Guidelines Responsibilities of Medicare Participating Hospitals in Emergency Cases. Appendix V was last updated in 2010. State Operations Manual - Appendix V - A-2400/C-2400-489.20(l) Under the provisions of 489.24, hospitals with an emergency department that participate in Medicare are required under EMTALA to do the following: Provide an appropriate MSE to any individual who comes to the emergency department; Provide necessary stabilizing treatment to an individual with an EMC or an individual in labor; Provide for an appropriate transfer of the individual if either the individual requests the transfer or the hospital does not have the capability or capacity to provide the treatment necessary to stabilize the EMC (or the capability or capacity to admit the individual); Not delay examination and/or treatment in order to inquire about the individual s insurance or payment status; Obtain or attempt to obtain written and informed refusal of examination, treatment or an appropriate transfer in the case of an individual who refuses examination, treatment or transfer; and Not take adverse action against a physician or qualified medical personnel who refuses to transfer an individual with an emergency medical condition, or against an employee who reports a violation of these requirements. 2 Compliance Newsletter Navigating the Compliance Maze December 2016 Page 1
Cont d from Page 1 Further, any participating Medicare hospital is required to accept appropriate transfers of individuals with emergency medical conditions if the hospital has the specialized capabilities not available at the transferring hospital, and has the capacity to treat those individuals. Hospitals are required to adopt and enforce a policy to ensure compliance with the requirements of 489.24. Noncompliance with EMTALA requirements will lead CMS to initiate procedures for termination from the Medicare program. Noncompliance may also trigger the imposition of civil monetary penalties by the Office of the Inspector General. 3 We have outlined the regulations in a grid so you can do your own selfassessment. POLICIES Adopt and enforce policies and procedures to comply with the requirements of 42 CFR 489.24. Y = YES N = NO M = MAYBE Do EMTALA policies and procedures include all the requirements in 42 CFR 489.24? Is someone identified to ensure policies and procedures are current? For Critical Access Hospitals have EMTALA policies been reviewed by a physician and a mid-level and approved by the governing board within the last 12 months? For PPS Hospitals have EMTALA policies been reviewed with medical staff within the last 3 years? SIGNAGE A-2402/C-2402 The requirements for signage appear to be straight-forward. However, signage must be conspicuous and in a language understood by the population serviced. It must also be posted not only in the emergency department but also in areas where individuals are waiting for examination and treatment other than the traditional emergency department (that is, entrance, admitting area, waiting room, treatment area). Is there EMTALA signage in the Emergency Department, Waiting Areas, Treatment rooms, Entrances, etc.? Are the signs easy to find / see? Are the signs in the language used by your population? MEDICAL RECORDS A-2403/C-2403 Maintain medical and other records related to individuals transferred to and from the hospital for a period of five years from the date of the transfer. Is there a written policy requiring retention of records related to transfer to and from the hospital for a period of five years? Compliance Newsletter Navigating the Compliance Maze December 2016 Page 2
ON-CALL PHYSICIANS A-2404/C-2404 The Hospital must maintain a list of physicians who are on-call to provide further evaluation and or treatment necessary to stabilize an individual with an emergency medical condition. Is your on-call physician list current with individual physician name (not group name)? Does your on-call physician list have current contact information? Does the on-call physician list include privileges of each on-call physician? Is the on-call physician list consistent with the services provided at the hospital and the resources the hospital has available? Is there a specific individual identified to maintain the on-call list? If you participate in a community call plan are the names of physicians at other hospitals who are on-call included in the list? If you participate in a community call plan does it include: A. A clear delineation of on-call coverage responsibilities; that is, when each hospital participating in the plan is responsible for on-call coverage. B. A description of the specific geographic area to which the plan applies. C. A signature by an appropriate representative of each hospital participating in the plan. D. Assurances that any local and regional EMS system protocol formally includes information on community-calll arrangements. E. A statement specifying that even if an individual arrives at a hospital that is not designated as the on-call hospital, that hospital still has an obligation under 489.24 to provide a medical screening examination and stabilizing treatment within its capability, and that hospitals participating in the community call plan must abide by the regulations under 489.24 governing appropriate transfers. F. An annual assessment of the community call plan by the participating hospitals. If you allow simultaneous call, do you 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? If you allow elective surgery when a physician has agreed to be on-call, does the hospital and the physician 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? Do you have written on-call policies and procedure that clearly define the responsibilities of the on-call physician to respond, examine and treat patients with an EMC? Do the policies and procedures address the steps to be taken if a particular specialty is not available or the on-call physician cannot respond due to circumstances beyond his/her control (e.g., transportation failures, personal illness, etc.)? Do you have a written policy that prohibits a physician on-call to refer emergency cases to his or her office for examination and treatment of an EMC? Do you have a written policy allowing the treating physician to consult with another physician, who may or may not be on the hospital s on-call list? Compliance Newsletter Navigating the Compliance Maze December 2016 Page 3
CENTRAL LOG A-2405/C-2405 Maintain a central log of individual s who come to the dedicated ED seeking treatment and indicate whether these individuals: Refused treatment, Were denied treatment, Were treated, admitted, stabilized, and/or transferred or were discharged; Is a central log in place? Is there clear responsibility for who is responsible for maintaining the log? Do you have an audit or other way of ensuring ALL patients are entered in the log? Does the central log include, directly or by reference, patient logs from other areas of the hospital that may be considered dedicated emergency departments, such as pediatrics and labor and delivery where a patient might present for emergency services or receive a medical screening examination instead of in the traditional emergency department? DEDICATED EMERGENCY DEPARTMENT A-2406/C-2406 There are instances in which departments other than the emergency department fall under the EMTALA regulations. The determination is made based on the one-third requirement - i.e. in the preceding year, were at least one-third of all of its visits for the treatment of EMCs on an urgent basis without requiring a previously scheduled appointment. This includes individuals who may present as unscheduled ambulatory patients to units (such as labor and delivery or psychiatric units of hospitals) where patients are routinely admitted for evaluation and treatment. EMTALA may also be triggered if a patient is on hospital property and either requests examination or treatment for an emergency medical condition or if a prudent layperson observer would believe that the individual is suffering from an emergency medical condition. Are there departments outside of the Emergency Department that meet the onethird rule? If there are departments outside the Emergency department that meet the onethird rule, do they have policies and procedures related to EMTALA? If there are departments outside the Emergency department that meet the onethird rule, do they have EMTALA signage? Do your EMTALA policies include procedures to follow if an individual comes on to hospital property (means the entire main hospital campus as defined in 413.65 (a), including the parking lot, sidewalk and driveway or hospital departments, including any building owned by the hospital that are within 250 yards of the hospital) and requests emergency treatment? Compliance Newsletter Navigating the Compliance Maze December 2016 Page 4
MEDICAL SCREENING EXAM A-2406/C-2406 Provide for an appropriate medical screening examination. Do you have policies and procedures for completing a Medical Screening Exam? Do you have policies and procedures for who can perform a Medical Screening Exam? Do you have policies and procedures for what registration information can be obtained prior to the Medical Screening Exam? (It is not impermissible under EMTALA for a hospital to follow normal registration procedures for individuals who come to the emergency department. For example, a hospital may ask the individual for an insurance card, so long as doing so does not delay the medical screening examination.) Do you have policies and procedures requiring a MSE for an Infant that is born alive? Do you have policies and procedures requiring a MSE for an infant that is born alive elsewhere on the hospital's campus (i.e., not in the hospital's dedicated emergency department) with an emergency medical condition? Do you have policies and procedures to perform a MSE if a minor (child) requests an examination or treatment for an EMC without parental consent? Do you have policies and procedures to perform a MSE even if there are prearranged community or State plans that have designated specific hospitals to care for selected individuals (e.g., Medicaid patients, psychiatric patients, pregnant women)? Do you have policies and procedures related to individuals presenting at the emergency department for nonemergency tests (e.g., individual has consulted with physician by telephone and the physician refers the individual to a hospital emergency department for a nonemergency test) or for a scheduled appointment? (EMTALA would not apply.) QUALIFICATIONS TO PERFORM MSE A-2406/C-2406 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 482.55 concerning emergency services personnel and direction. Do the bylaws, rules and regulations identify which qualified medical personnel (QMP) are allowed to perform a MSE? Has the governing board approved who can perform a MSE? If nurses, such as RNs in Obstetrics, are allowed to perform a MSE have their specific qualifications (by name) been approved by the medical staff and the governing board? TRANSFER A-2409/C-2409 Provide necessary stabilizing treatment for emergency medical conditions and labor within the hospital s capability and capacity. Provide an appropriate transfer of an unstabilized individual to another medical facility. Has a physician signed a certification that the benefits of the transfer of the patient to another facility outweigh the risks or Is there evidence that the patient has been notified of the risks and benefits of transfer? Is there evidence that the patient was informed of the risks and benefits? Is there documentation of consent of the receiving hospital to accept the transfer? Are all pertinent records sent to the receiving hospital? Is the transfer of an unstabilized individual effected through qualified personnel and transportation equipment, including the use of medically appropriate life support measures? Compliance Newsletter Navigating the Compliance Maze December 2016 Page 5
REPORTING A-2401/C-2401 A hospital is required to report to CMS or the State survey agency promptly when it suspects it may have received an improperly transferred individual. Notification should occur within 72 hours of the occurrence. Do you have policies and procedures regarding improper transfer? ON-SITE REVIEW If you are subject to an EMTALA survey, the surveyors in addition to medical record review for a three-month period surrounding the date of the alleged violation, will generally review the following documents: Emergency Department logs for the past 6-12 months Emergency Department Policies and Procedures Consent forms for transfers of unstable individuals Emergency Department committee meeting minutes for the past 12 months Emergency Department staffing schedule (physicians for the past 3 months and nurses for the last 4 weeks) or as appropriate Bylaws/rules and regulations of the medical staff Minutes from medical staff meetings for the past 6-12 months Current medical staff roster Physician on-call lists for the past 6 months Credential files Quality Assessment and Performance Improvement (QAPI) Plan QAPI minutes specifically related to EMTALA List of contracted services Emergency Department personnel records In-service training program records, schedules, reports, etc. related to EMTALA Ambulance trip reports and memoranda of transfer, if available Ambulance ownership information and applicable State/regional/community EMS protocols EDUCATION AND AUDITING There are two critical steps to ensuring you stay in compliance with EMTALA regulations. 1. Educate staff and physicians at least annually and more often as needed. Include a review of the regulations as well as data from your transfer audits. 2. Audit at least 10% of transfers or if you have less than 30 per quarter, audit 100% of transfers. Provide data to the medical staff and hospital staff on a monthly basis. Compliance Newsletter Navigating the Compliance Maze December 2016 Page 6
1 h ps://www.cms.gov/regula ons and Guidance/Legisla on/emtala/index.html. Accessed December 11, 2016 2 Appendix V, A 2400/C 2400 489.20(l) 3 Appendix V, A 2400/C 2400 489.20(l) Upcoming Compliance Webinar 2017 OIG Work Plan: Gaining Insight Tuesday, Jan 17th 12:00-1:00 pm CT Register https://attendee.gotowebinar.com/register/7269816230930451971 Hosted by: Cheri Benander, MSN, RN, NHA, CHC, NHCE-C, Dir. of Compliance and LTC Consulting Each year the Office of Inspector General (OIG) publishes their work plan, which provides a summary of the reviews they plan to perform. The OIG Work Plan provides the public with insight as to where the OIG s auditing focus will be and provides us with a great resource in developing our own internal auditing programs. The program will describe the OIG, their responsibilities and their 2016 accomplishments. Explain what the work plan is, how it is developed and how it is formatted. Discuss the OIG s focus areas and new projects and illustrate how elements of the work plan can be incorporated into an auditing plan. HealthTechS3 s Compliance Consulting Services are intended to be educational in nature and are not intended to identify potential compliance violations. The Compliance Consulting Services may include advice and recommendations, but the ultimate responsibility for decisions regarding Client s compliance program and related processes, policies and procedures, including without limitation, the decision to further investigate, consult original source materials, or notify qualified healthcare regulatory counsel for specific guidance remains with Client as the owner and operator of its business. For more information, please contact Cheri Benander: Cell: 615-636-9042 Main: 615-309-6053 Fax: 615-370-2859 cheri.benander@healthtechs3.com 5110 Maryland Way, Suite 200 Brentwood, TN 37027 www.healthtechs3.com HealthTechS3 is an award-winning healthcare consulting and hospital management firm based in Brentwood, Tennessee with clients across the United States. We are dedicated to the goal of improving performance, achieving compliance, reducing costs and ultimately improving patient care. Leveraging consultants with deep healthcare industry experience, HealthTechS3 provides actionable insights and guidance that supports informed decision making and drives efficiency in operational performance. Building Leaders Transforming Hospitals Improving Care Compliance Newsletter Navigating the Compliance Maze December 2016 Page 7