EMTALA “101” for UWMC ED Staff

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Sometimes called “COBRA” – Consolidated Omnibus Budget Reconciliation Act

Part of this voluminous, multifaceted act was EMTALA

What is EMTALA?

Federal statute (Congressional law) passed in 1986 in response to concerns about patient “dumping”

– Found in the United States Code

Law enforced by CMS (Center for Medicare/Medicaid Services) and OIG (Office of the Inspector General)

– CMS (then HCFA) published regulations in 1994 (with some subsequent revisions)

Found in the Code of Federal Regulations

CMS also published “interpretive guidelines” in 1995

Last revision in 2004 Guidelines are used by surveyors in review

of EMTALA concerns Found in Medicare State Operations Manual

Why should we worry about EMTALA?

CMS can terminate the Hospital’s Medicare provider agreement (42 CFR 489.53)

– “The Big Stick” The OIG has authority to exclude “responsible physicians” from

participation in Medicare, Medicaid and all federal health programs for EMTALA violations (42 CFR 1003.105)

The OIG can impose Civil Money Penalties (CMP) on both the hospital or CAH and the responsible physician (42 CFR 1003)

– up to $50,000 per violation (100+ beds)– $50,000 per violation per physician

Patients may bring civil actions for damages

Overview

A person who comes to the emergency department for examination or treatment for a medical condition must receive a medical screening examination to determine whether an emergency medical condition exists

If there is an emergency medical condition, the hospital must provide either -– Further medical examination and treatment to

stabilize the medical condition, or– Appropriate transfer

The “Magic Words”

“Comes to the Emergency Department” “Emergency Medical Condition” “Medical Screening Examination” “Stabilize” “Transfer”

“Comes to the Emergency Department”

The individual is on hospital property – Not just the ED itself!– Includes all of main campus, sidewalks,

driveways and parking lots – Includes ambulances that have come on the

property Unless directed elsewhere by EMS

“Campus”… and the “250 yard rule”

The physical area immediately adjacent to the provider's main buildings, other areas and structures that are not strictly contiguous to the main buildings but are located within 250 yards of the main buildings, and any other areas determined on an individual case basis, by the CMS regional office, to be part of the provider's campus.

“Campus”… and the “250 yard rule”

Only “hospital owned or operated” areas within the 250-yard radius are subject to EMTALA

– E.g., does not include public streets that happen to be inside the radius

UWMC has some combined (with UW) areas in this radius—are they included?

– CMS probably would say “yes” if a member of the public would reasonably assume that the area is hospital operated.

“Emergency Medical Condition”

Acute symptoms (including severe pain, psychiatric disturbances and/or symptoms of substance abuse)

“Emergency Medical Condition”

Symptoms severe enough that without immediate medical attention, one could reasonably expect– Serious impairment to bodily functions– Serious dysfunction of any bodily organ or part– Other serious jeopardy to health of patient

(or unborn child)

“Emergency Medical Condition”

Emergency medical condition in a pregnant woman who is having contractions– Inadequate time to effect a safe transfer to

another hospital before delivery; or– Transfer may pose a threat to the health or safety

of the woman or the unborn child

“Emergency Medical Condition”

If the “reasonably prudent layperson” would think that the symptoms being exhibited might be an emergency medical condition, then it must be considered one unless/until it is ruled out.– Note: EMTALA does not apply to outpatients who

are receiving patient care e.g., a clinic patient who develops an emergency during

the patient care portion of their visit

“Medical Screening Examination”

Process required to reach with reasonable clinical confidence the point at which it can be determined whether a medical emergency (i.e., “emergency medical condition”) exists

TRIAGE DOES NOT QUALIFY AS A MEDICAL SCREENING EXAMINATION!!

“Medical Screening Examination”

MSE is to be conducted by “qualified medical personnel”– “Medical and nursing personnel qualified in

emergency care to meet the written emergency procedures and needs anticipated by the facility”

– Personnel are determined to be qualified by hospital bylaws or rules and regulations

“Medical Screening Examination”

Depending on presenting symptoms, MSE may be– “A simple process involving only a brief history and

physical examination” OR– More complex process including ancillary studies

and procedures “routinely available to the emergency department”

Including, but not limited to lumbar punctures, clinical lab tests, CT scans, other diagnostic tests and procedures

Pre-authorization Not Allowed

“It is not appropriate for a hospital to request or a health plan to require prior authorization before the patient has received a medical screening exam to determine the presence or absence of an emergency medical condition or until an existing emergency medical condition has been stabilized.”

Refusal Based on Managed Care Not Allowed

“A hospital may not refuse to screen an enrollee of a managed care plan because the plan refuses to authorize treatment or to pay for such screening and treatment.”

“Stabilize”

Medical treatment of the condition necessary to assure, within reasonable medical probability, that– No material deterioration of the condition is likely

to result from or occur during the transfer; or – Child and placenta have been delivered

“Transfer”

Movement (including discharge) outside the hospital's facilities – at the direction of any person employed by or

affiliated or associated, directly or indirectly, with the hospital; or

– upon a documented, informed request by the patient

“Stable for Transfer”

Treating physician has determined, within reasonable clinical confidence, that the patient is expected to reach the receiving facility with no material deterioration in medical condition

Treating physician reasonably believes receiving facility has the capability to manage the patient’s medical condition and any reasonably foreseeable complications

Requirement to Transfer

“When a hospital has exhausted all of its capabilities in attempting to remove the emergency medical condition, it must effect an appropriate transfer of the individual.”

“Stable for Discharge”

Within reasonable clinical confidence, the patient has reached the point where continued care (including diagnostic work-up and/or treatment) could be reasonably performed as an outpatient, or later as an inpatient

Patient must be given a plan for appropriate follow-up care with discharge instructions

Certification for Transfer

Based upon the information available at the time of transfer, the medical benefits of treatment reasonably expected at the receiving facility outweigh the risks of being transferred – Certification must contain summary of the risks

and benefits upon which it is based

Certification for Transfer

Physician must sign, or– Qualified medical person may sign after

consulting physician who agrees with the certification

– Agreeing physician must subsequently countersign

Refusals

Patient may refuse further medical examination and treatment, or transfer

Hospital must inform patient or patient’s representative of the risks and benefits of examination and treatment or transfer

Documentation Requirements

Medical record must contain – description of examination, treatment, or both; or

description of the proposed transfer; and– that the person has been informed of the risks and

benefits of examination, treatment, or transfer; and– person’s reasons for refusal.

Hospital must take all reasonable steps to secure written informed refusal.

Recipient Hospital Obligations

This obligation is a bigger practical issue for UWMC than transfer obligations

UWMC may not refuse to accept from a referring hospital within the boundaries of the United States an appropriate transfer of a patient who requires our specialized capabilities or facilities if we have the capacity to treat the patient.

More “magic words”

“Specialized capabilities”: Including, but not limited to, facilities such as burn units, shock-trauma units, neonatal intensive care units

– Would encompass UWMC higher-level (tertiary/quaternary) services

“Capacity”: Factors include number of patients occupying a specialized unit, number of staff on duty, or available equipment, AND ALSO whatever a hospital customarily does to accommodate patients in excess of its occupancy limits

– e.g., moving patients to other units, calling in additional staff, borrowing equipment from other facilities

More “magic words”

“Appropriate transfer”: Patient must be – Stable for transfer OR– Benefit of transfer outweighs risk OR– Patient requested transfer AND– Patient must require our specialized capabilities (or

transferring hospital lacks capacity) AND– UWMC must agree to the transfer AND– Required documentation must accompany patient

Medical record Transfer certification

Does EMTALA apply to the transfer?

If the patient is a “legitimate” inpatient at the transferring hospital, EMTALA does not apply– Concerns about a “sham admission” (i.e., an

attempt to circumvent EMTALA) would arise if the transferring hospital sends us the patient within a few hours of admission (unless the patient has deteriorated in that time frame)

When in doubt…

Determine if we have already “accepted” the transfer– Ideally there will be physician-to-physician

communication between UWMC and the transferring hospital

– The law does not require this, but please try to facilitate if this communication has not occurred

UWMC should accept a “questionable” transfer and work out the potential reporting obligations later

Posting Requirements

EMTALA rights must be posted conspicuously – in emergency department or where likely to be

noticed by all individuals entering emergency department, and

– for those waiting for examination and treatment in areas other than traditional emergency departments (entrance, admitting area, waiting room, treatment area)

On-Call List

Emergency department must be prospectively aware of which physicians, including specialists and subspecialists, are available to patients

If a hospital offers a service to the public, the service should be available through on-call coverage of the emergency department

Central Log

For all patients, including active labor patients or other unstable patients who entered “by way of” the ED, even if later transferred from area other than the ED.

Must include whether patient refused treatment, was refused treatment, was transferred, admitted and treated, stabilized and transferred, or discharged.

Need not be in log format, but all information must be easily retrievable.

Reporting Requirements

Hospital must report to CMS or the State survey agency (DOH) within 72 hours if it has reason to believe it may have received a patient transferred in an unstable emergency medical condition from another hospital in violation of EMTALA requirements.

EMTALA scenarios to watch for1.  Other hospital contacts us to try to transfer patient.  After discussing with our Resident/Attending/On-call physician, we elect not to accept the transfer.  Patient later shows up in our ED requiring emergent treatment. Possibly without paperwork.

2.  Patient presents in our ED and mentions that they received treatment at another hospital's ED immediately prior to coming to UWMC.

3.  Other facility goes to great lengths to transfer patient to UWMC ED, possibly against our advice.  Patient arrives in unorthodox fashion (such as being driven interstate by private vehicle), possibly in unstable condition.  It is not clear if patient's condition was stabilized by other facility.

EMTALA red flags to watch forAny patient who shows up to our ED who has already been seen at another Emergency Room for the same condition with any of the following:No paperwork (labs, transfer, H & P, etc...);  No arrangement or agreement on our part to accept the transfer; Transfer occurred against our recommendations; Patient or family member drove themselves from the other ED to our ED; Patient's condition not stable for transfer from previous facility; Patient's condition could arguably have been handled by the other hospital's on-call physician but that physician did not personally see the patient.

EMTALA “FAQs”

What if I suspect an EMTALA violation related to a transfer from another hospital?

Please enter information in PSN (Patient Safety Net)

Please notify the ED nurse manager, ED Medical Director, or Compliance Office– Rob Brown, 598-4342

What about patients who are told to come to UWMC ED for follow-up care?

The patient should be screened to rule out an emergency medical condition just as with any ED patient

If an EMC is ruled out, the patient may be discharged– Outside EMTALA and overall charity care obligations, UWMC

(e.g., orthopedic clinics) has no duty to accept new patients– However, if the patient is given specific instruction to follow up

with a UWMC clinic without the caveat that the clinic may not be able to take them on as a new patient, the obligation to treat the patient in follow-up may be created