EMTALA Update

1. EMTALA Update Russell Harris MD, MMM, CPE, FACEP Department of Emergency Medicine Our Lady of Lourdes Medical Center

2. ? ? ? ? ? ? ? Objectives • Review EMTALA basics • Review new CMS EMTALA regulations • Questions and Answers

3. History of COBRA • Consolidated Omnibus Budget Reconciliation Act of 1986 • “Anti-dumping” • Investigated by CMS • Enforced by the OIG

4. Historical Perspective • The antidumping act is the most significant piece of federal legislation in all of American history. There is no national law of this type applicable to any other medical specialty or hospital service. • EMTALA has spawned more appellate-level litigation concerning the rendering of Emergency Services than any other legal source in our history. • William Curran JD, LLM, Harvard University

5. Improved Access to Emergency Care • Federal right to Hospital-Based Emergency Services • “Any individual” entitlement • Includes minors • Non-discrimination: Uniform process • Preempts state and local laws • Societal good

6. EMTALA • Requires hospitals to provide emergency health care treatment to anyone needing the care regardless of citizenship, legal status or their ability to pay. • EMTALA laws also apply to InPts until that patient has been stabilized. (Important related to transfers and follow up care).

7. What is EMTALA? • Emergency Medical Treatment & Active Labor Act • Attached to the COBRA of 1985 (Consolidated Omnibus Budget Reconciliation Act ) • Designed to stop hospital and EDs from refusing to treat the poor or uninsured or transferring them to charity hospitals before their conditions were stabilized • Effectively made EDs “America’s healthcare safety net” • Hospitals must provide education for RNs and staff to ensure compliance with EMTALA

8. Who is Responsible for EMTALA Enforcement? Center for Medicare and Medicaid Services (CMS) Local and regional Professional Review Organizations State Department of Public Health Office of the Inspector General (OIG) of the Department of Health and Human Services (DHHS) imposes fines In January 2005, OIG reiterated that hospitals need to address EMTALA as a compliance program

9. Unfunded Congressional Mandate • EMTALA is the governments’ largest health care program • Allegations of abuses from illegal aliens • Monopoly power of US government - largest payer of services • Growing uninsured population (>16% of population)

10. EMTALA Activity to Date • Fiscal 2000-05: Average $1.27 Million/yr • 40-50 settlements/year • Judgments during fiscal 1999: $1,725 million • 61 settlements • Judgments during fiscal 1998: $1.82 million • 53 settlements • Judgments 1987-1997: $1.84 million • 79 settlements

11. Why So Much Scrutiny? • Changed environment • Evolving Legal environment • HIPAA - increased dollars to investigate Fraud and Abuse • Consumer empowerment

13. COBRA Duties of a Hospital • Provide a Medical Screening Exam (MSE) to all patients who present regardless of their ability to pay - to determine if an Emergency Medical Condition exists • Triage does not meet the screening requirement • Hospital premises includes hospital-owned ambulances and off-campus locations billing under the same Medicare Provider number

14. MSE as a Process • Hospital must provide a ‘standard’ screening exam to all who present with similar complaints, regardless of their ability to pay • The issue for EMTALA is whether the hospital deviated from its customary (‘standard’) process to evaluate a patient with a similar condition, as perceived to exist by the examining physician

15. Medical Screening Examination: Defined • “A MSE is the process required to reach, with reasonable clinical confidence, the point at which it can be determined whether a medical emergency does or does not exist.” • “If a hospital applies in a non-discriminatory manner a screening process that is reasonably calculated to determine whether an emergency medical condition exists, it has met its obligations under EMTALA.”

16. Scope ofMedical Screening Exams • Provide all necessary testing and on-call services within the capability of the hospital to reach a diagnosis that excludes an EMC • Patient may be “screened” out of the ED by a QMP to another area. Example: Suture removal

17. Emergency Medical Condition: Defined • Medical condition with acute symptoms of sufficient severity (including severe pain), that without immediate medical attention could result in: • Placing patient’s health in serious jeopardy • Serious impairment to bodily functions • Serious dysfunction of any bodily organ or part • Labor is an EMC if there is inadequate time for transfer

18. Registration Process • May not delay care in order to gather financial/insurance information • May follow normal registration process if the patient would normally be waiting • Best practice: not obtain financial information prior to performing a MSE • May Respond to financial inquiries prior to providing treatment (New Standard)

19. Prior Authorization “Managed healthcare plans cannot deny a hospital permission to examine or treat their enrollees. They may only state what they will and will not pay for, and regardless of whether a hospital is to be reimbursed for the treatment, it is obligated to provide the services specified in EMTALA.”

20. “Comes to the ED” • EMS Telemetry does not constitute “coming to the ED” • Telephone contact by a patient does not constitute “coming to the ED”

21. DedicatedEmergency Department • Encompasses Emergency Department, Urgent Care Centers, Labor and Delivery Units, and Psychiatric Units • One-Third of all annual visits are for treatment of Unscheduled Emergencies

22. Informed Consent to Refuse an MSE • Hospital must take all reasonable steps to secure the individual’s written refusal • Explain hospital’s obligations under the law • Secure signature • Documentation is critical

23. Physician On-Call • Must respond within a reasonable time • Hospital must have a policy or procedure to be followed when a particular specialty is not available or when the on-call physician cannot respond • Medicare does not set requirements for on-call • Medicare does not determine ratios for coverage

24. Physician On-Call • The hospital is required to provide on-call physicians to the ED • No requirements for 24/7 on-call coverage • On-call physicians represent the hospital, not themselves • Hospitals may exempt medical staff from on-call such as senior medical staff

25. On-Call Requirements • On-call physicians may have simultaneous calls and may perform elective surgery while on call • CMS recommends that policies and procedures are in place regarding the unavailability of the on-call physician and a back-up contingency plan in such circumstances. They did not provide any details on the elements of a contingency plan.

26. No F/U Care = Not Stable EMTALA INTERPRETIVE GUIDELINES : 489.24(c)(I): "A patient is considered stable for discharge (vs. for transfer from one facility to a second facility) when, within reasonable clinical confidence, it is determined that the patient has reached the point where his/her continued care, including diagnostic work-up and/or treatment, could be reasonably performed as an outpatient or later as an inpatient, provided the patient is given a plan for appropriate follow-up care with the discharge instructions."

27. Disagreement Resolution If there is a disagreement between the treating physician attending to the patient in the ED and an off-site physician as to whether an Emergency Medical Condition exists or whether a patient has been stabilized, the medical judgement of the treating physician takes precedence over the judgement of the off-site physician.

28. Duties (cont.) • Provide stabilizing care • Stabilizing may require that delivery of the baby and placenta are delivered • Not transfer potentially unstable pts if the hospital has the capabilities and capacity • If necessary to transfer due to lack of response of the on-call physician, the name must be documented

29. Stabilization • No material deterioration of the EMC is likely, within reasonable medical probability, to result from or occur during the transfer • Does not require the resolution of the EMC

30. Stabilization Treatment • The new regulation indicates that the EMTALA obligation ends when a patient is admitted, even if they are unstable • CMS has an expectation of an overnight stay and are concerned with patients being inappropriately admitted to remove the EMTALA obligation

31. EMTALA’s Definition of “Transfer” • “Transfer” means the movement (including discharge) of an individual outside a hospital’s facility at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital • Excludes patients who leave the facility AMA • Excludes patients declared dead

32. Transfers (cont.) • Physician convenience is not an acceptable reason for transfer • Transfer is defined as any time a patient leaves the campus, including discharge, unless AMA or deceased

33. Accepting Transfers • “Hospitals with specialized capabilities or facilities shall not refuse to accept appropriate transfers of individuals who require such specialized capabilities.” • Who accepts transfers: • Physician on-call • Emergency Physician • Physician Access Line • Administrative transfer teams

34. Hospital-Owned Ambulances • EMTALA does not apply if the ambulance is operating under a community-wide EMS protocol • Hospital owned ambulances may transfer to other hospitals when acting as first responders

35. Psychiatric Patients • Once deemed “stable”, defined as protected; patient can be transferred, even for economic reasons • Stable for transfer includes the use of physical or chemical restraints

36. EMTALA Exclusions • Patients coming for a previously-scheduled appointment • Patient who develops an Emergency after the start of a scheduled encounter ― protected under the Medicare hospital conditions of participation. Example: Patient post-knee-replacement who develops Chest Pain in Physical Therapy

37. CMS’ Review of Complaints • The CMS enforcement of EMTALA is 100% complaint-driven • CMS indicates that self-reporting of violations will mitigate damages

38. How is an EMTALA Investigation Initiated? • Any individual or organization may make a complaint • Complaint goes to one of 10 CMS regional offices (RO) • RO refers the complaint to the states’ agency • The agency must investigate (unannounced) within 5 working days

39. Investigation Process • Investigators do not tell physicians/ hospital staff that “mere discussions” of the facts, data gathering, and conversations on actions taken to come into compliance can be used against them in actions taken by the OIG • Discussions are discoverable in civil proceedings

40. What is aRoutine Investigation? • EMTALA policy and procedure • Signage • List of on-call physicians for 5 years • Provision of an MSE/Stabilizing treatment • Provision for appropriate transfers • Adequacy of policy of no delay of examination or treatment to inquire about insurance

41. What Does theInvestigating Team Look For? • Log of all cases for the past 6-12 months • Will look closely at AMA, LWOTs, Revisits • EMTALA policy • Transfer forms • ED physician committee meeting minutes • Bylaws / rules and regulations of the medical staff • Physician on-call lists

42. Survey Team Recommendations • “No action” • “In-compliance” but previously out of compliance - the hospital identified the problem on its own • Recommendation of Medicare provider termination (23 days) - serious issue • Recommendation of Medicare provider termination (90 days) - not a serious threat

43. Bad News • Since 1997, OIG has tripled its investigative staff dedicated to EMTALA enforcement from six to 18 attorneys • Majority of cases involving physicians concern on-call responsibilities • OIG: “We are not specifically targeting physicians.”

44. Recent Cases: • Patients Not Being Seen: Dameron Hospital Assoc. in CA. paid 75K • 16 patients who went to the hospital ED with a variety of complaints and left after 3-6 hours without being seen

45. Recent Cases (cont.) • Failed to Provide Appropriate MSE • Kaiser Foundation Hospital in CA paid 10K • Pregnant woman went to ED with Abdominal and Back Pain ― Labor and Delivery nurse advised the patient to go to the hospital where her physician had privileges

46. Recent Cases (cont.) • Baptist Medical Center in Alabama pd 45K • Patient presented after falling on her knee. After X-rays, was given morphine and discharged. While waiting for transport, she became ill and the hospital refused (as per son) to provide further medical assistance. • Patient went home, later returning in respiratory distress and died

47. Recent Cases (cont.) • Bothwell Regional Health Center, Missouri pd 22.5K for failure to provide MSE • Psychotic patient presented to the ED by a deputy sheriff. A nurse told deputy sheriff that the hospital did not admit psychiatric patients and the sheriff took the patient to a hospital 90 miles away where he was treated and admitted.

48. Recent Cases (cont.) • St James Psychiatric Hospital, LA pd 30K for patient dumping • The hospital failed to accept appropriate transfers of 2 patients with Psychiatric Emergencies who needed the specialized capabilities of the hospital

49. Cost of Investigations $ $ $ $ $ $ • Fishing expeditions by CMS beyond examining facts of allegation, regulatory minutia • Hospital has no recourse vs bogus complaints • Average cost of investigation >$200,000, before fines • 30% of ED Nurse Managers involved lose their jobs

50. Physician Penalties • Physicians are penalized $50,000 per violation and may face exclusion from the Medicare/Medicaid programs