EMTALA 42 U.S.C. §1395dd Lesson 1

1. EMTALA42 U.S.C. §1395ddLesson 1 Prepared By: Michele Madison Morris, Manning and Martin, LLP

2. Recent Official Publications • Proposed Rule published May 9, 2002 in Federal Register • Final Rule published September 9, 2003 in Federal Register • Interpretive Guidelines published May 13, 2004 in State Operations Manual • 2009 Inpatient IPPS Final Rule changes, effective October 1, 2008

3. General Requirement If any individual comes to a “dedicated emergency department” and a request is made for examination or treatment the hospital has an affirmative duty to provide an appropriate “medical screening” and take specific actions to determine if an “emergency medical condition” exists.

4. Patient Presents to Dedicated Emergency Department Dedicated Emergency Department (DED) —any department or facility of the hospital that either 1. is licensed by the State as an emergency department; 2. held out to the public as providing treatment for emergency medical conditions (name, signs, advertising); or 3. at least one third of the visits to the department in the preceding calendar year actually provided treatment for emergency conditions on an urgent basis.

5. One Third Rule • To determine whether department meets the one third rule, Guidelines instruct surveyors to: • Select representative sample of patient visits that occurred during previous calendar year in department to be evaluated for DED status, including unscheduled ambulatory patients who are routinely admitted for evaluation and treatment (i.e. labor and delivery or psychiatric) • Review 20-50 records of patients with diagnoses or presenting complaints which may be associated with EMC.

6. One Third Rule (cont’d) • Review cases to decide whether patients had EMC and, if so, received stabilizing treatment • Was individual an outpatient? • Was individual “walk in”? • Did individual have an EMC and receive stabilizing treatment? • If all three conditions exist for at least one third of the total cases reviewed, department is DED and has EMTALA obligation. • When hospital is performing one third rule evaluation, better to be on conservative side.

7. Comes to the Emergency Department • Individual “comes to the ED”: • Presents at hospital’s DED and requests examination or treatment for a medical condition OR • Presents elsewhere on hospital property and requests examination or treatment for “what may be” emergency condition.

8. Different Standards Dependent on Where Individual Presents • Main ED • Individual requests treatment for medical condition • If no request for treatment, EMTALA obligations triggered only if “prudent layperson” would believe individual needs examination or treatment for emergency medical condition • Elsewhere in hospital • Individual requests treatment for “what may be” a medical condition • If no request for treatment, EMTALA obligations triggered if “prudent layperson” would believe individual needs emergency examination and treatment • Hospital may want to train all personnel who have contact with public

9. Ambulances • Hospital-Owned Ambulances • Individual “comes to the ED” when individual is in a ground or air ambulance owned or operated by hospital, even if ambulance not on hospital property . . . • Except if ambulance under community-wide EMS protocols or protocols mandated by State law to transport individual to nearest facility • Except if ambulance operated at direction of physician not employed or otherwise affiliated with hospital who owns ambulance • Ambulance Owned by Someone Other Than Hospital • Individual “comes to the ED” when ambulance arrives on hospital property • For non-facility owned ambulances, an individual comes to the emergency department when the ambulance actually arrives on the facility’s property.

10. Case Analysis Patient is injured in car accident and ambulance owned by Hospital A arrives at accident scene. EMS puts patient into ambulance and arrives at Hospital B, which it has been directed to go to due to community-wide protocols. Hospital B is unwilling to accept patient, stating that the patient is Hospital A’s problem since it is Hospital A’s ambulance. Has either Hospital A or Hospital B violated EMTALA?

11. Helipad Patients • Patients may be present on a hospital’s helipad while en route to another hospital. • No EMTALA obligation for such hospital unless EMS technician determines hospital should treat patient (i.e. patient’s condition deteriorates, etc.).

12. Appropriate Medical Screening Requirement • Should be provided to all patients who present to the Dedicated Emergency Department • Screening must be an Appropriate Screening (should be the same for patients presenting with the same or similar symptoms or complaints) • Performed by a Qualified Individual as determined by Hospital Bylaws or Rules and Regulations • Provide before asking for any insurance or payment information

13. Emergency Medical Condition A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: (i) placing the health of the individual in serious jeopardy (ii) serious impairment to bodily functions; (iii) serious dysfunction of any bodily organ or part; or

14. EMC (cont’d) A pregnant woman who is having contractions and (i) there is inadequate time to effect a safe transfer to another hospital; or (ii) transfer may pose a threat to the health or safety of the woman or the unborn child

15. Medical Screening Process • Results in Non-Emergency Condition • Can request payment or insurance information • Treat if consent granted • Results in Emergency Condition • Stabilize • Transfer if appropriate, but must be by the regulations

16. Case Analysis Emergency Room is crowded. Patient is in a motor vehicle accident. Patient presents to the Dedicated Emergency Room. A nurse triages the patient and moves the patient to a room. The Physician examines the patient and determines that the patient has a broken arm, laceration to the head and potential punctured lung. Physician orders an exam from respiratory services to verify the status of the lung and respiratory functions of patient.

17. Case Analysis There is a wait to obtain the respiratory services test. Patient is moved to a holding bed in order to open the room for a second motor vehicle accident victim with a broken skull. While in the holding room, the nursing assistant caring for the patient tells the patient that it has been crazy in the Emergency Room that day; the Emergency Department is understaffed; and it will be a couple of hours before the test can be performed. However, the Hospital two miles away is never busy and has a ton of doctors and nurses all the time.

18. Case Analysis • When the nursing assistant returns to the central desk, patient leaves hospital and goes to the hospital down the street for care. Is there an EMTALA violation?

19. Certain Non-Emergency Services • Non-Medical Conditions • Hospital not obligated to provide medical screening examination if individual requests services that are not for medical condition (i.e. preventive care, gathering evidence). • Blood Alcohol Tests (BAT) • If law enforcement requests BAT but no examination or treatment, and prudent layperson would not believe person needed examination or treatment, no medical screening examination required. • Incarceration • When law enforcement requests clearance for incarceration, must provide medical screening examination.

20. Case Analysis Police officer arrives in his police car with individual in the back seat. The officer assists the individual from the back seat into the emergency department. The individual is slurring her words, walking with a limp, and has numerous lacerations on her face, arms and legs. The officer requests a blood alcohol test, a nurse says that the individual should be screened, but the officer says no, she’s fine. The nurse performs the blood alcohol test, the results are positive, and the officer takes the individual to the police station. Any EMTALA violation?

21. Resources Centers for Medicare and Medicaid Services http://www.cms.hhs.gov/providers/emtala/default.asp United States Code Emergency Medical Treatment and Labor Act : 42 U.S.C. §1395dd; §§1866(a)(1)(I), 1866(a)(1)(N), and 1867 of the Social Security Act; 42 C.F.R. §489.24 Morris, Manning and Martin, LLP 404-504-7621 Michele Madison mmadison@mmmlaw.com