Physician Reviewer Training: EMTALA

1. Physician Reviewer Training:EMTALA Sharon Hoffarth, MD, MPH, FACPM Chief Medical Officer

2. Objectives • Understand EMTALA from a regulatory perspective • Understand the Physician Review Worksheet – the format, the regulatory definitions, the meaning behind the questions • Understand the importance of a rationale that supports each response • Understand the links between questions to provide consistency to the PR’s answers and rationales • Understand Primaris’ internal process for conducting an EMTALA review

3. Historical Perspective • “Patient dumping” • Sentinel cases in Kentucky and Missouri • EMTALA - Part of the Social Security Act Revised §1866 and added §1867 - Known as COBRA 1985, effective 1987 - Applies to any and all individuals - Regardless of insurance/Medicare status

4. Basic Tenets of EMTALA • Applies to any facility with a designated ED & their physicians • Facilities are obligated to provide medical screening exam (MSE) • Sufficient to reasonably indicate the presence orabsence of an emergency medical condition (EMC) • If an EMC exists, then facility must: • Treat until stable or • Perform an appropriate transfer • Patient-retained rights • Decline treatment • Refuse appropriate transfer • Request inappropriate transfer

5. Fundamental Requirements • Medical screening examination (MSE) sufficient to determine whether an Emergency Medical Condition (EMC) exists • Necessary treatment provided to stabilize an emergency medical conditions (including labor) prior to discharge or transfer • Determination of the necessity of transfer and a safe mode of transfer, as appropriate • The QIO must also identify any other concerns, particularly quality of care issues

7. Medical Screening Examination (MSE) – Appropriate? 1a. Did the hospital provide a medical screening examination that was appropriate to the individual’s medical complaint(s) and symptoms? - Triage is NOT an MSE; MSE is a process that may involve multiple steps and reassessment over time - Must be performed by a Physician or a Qualified Medical Person (QMP) – for a psychiatric complaint, this may mean evaluation by a psychiatrist or other qualified mental health professional

8. Medical Screening Examination (MSE) – sufficient? 1b. Did the hospital provide (within its capability – including ancillary services routinely available and consultations by on-call specialist physicians) a medical screening examination that was, within reasonable clinical confidence, sufficient to determine whether or not an EMERGENCY MEDICAL CONDITION (as defined below) existed?

9. Medical Screening Exam -- Sufficient to Determine Whether an Emergency Medical Condition Exists • Consider whether evaluation by or consultation with psychiatrist or other mental health professional is indicated • Must be sufficient to r/o out underlying: - Trauma - Disease/organic condition that might cause or contribute to the presenting symptoms • Substance Abuse • Sufficient to r/o medical, toxic, psychiatric, and trauma causes for the apparent state

10. Emergency Medical Condition (EMC) 2. Did this individual have an EMERGENCY MEDICAL CONDITION as defined by Part (1) of the statutory definition noted above? (Individual conditions meeting the definition in Part 2 above are discussed in subsequent questions.) www.medlaw.com

11. Emergency Medical Condition -- Regulatory Definition Acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that absence of immediate medical attention could reasonably result in: • Placing pt’s health in serious jeopardy • Serious impairment to bodily functions • Serious dysfunction of any bodily organ/part • This includes the health of a pregnant woman or fetus (Inadequate time to effect a safe transfer before delivery and/or transfer may pose threat to health of the woman or her unborn child) • This also includes psychiatric conditions and substance abuse

12. Emergency Medical Condition – Psychiatric Conditions • Medical conditions includes psychiatric conditions • Severe depression • Insomnia • Suicide attempt or ideation • Dissociative state • Inability to comprehend danger • Inability to care for one's self www.medlaw.com

13. Emergency Medical Condition -- Pregnancy • Was this a pregnant woman who was having contractions? - If “Yes” and the pregnant woman was transferred/discharged, at the time of the transfer/discharge, could it be determined with reasonable medical certainty that there would be adequate time to effect a safe transfer to another hospital before delivery? - If the pregnant woman with contractions was transferred/ discharged, at the time of transfer/discharge, could it be determined, with reasonable medical certainty, that the transfer/discharge would not pose a threat to the health or safety of the individual or the unborn child?

14. Stabilizing Treatment 4. If an Emergency Medical Condition (EMC) existed, at the time of transfer/discharge, was the individual’s EMC stabilized, (meaning that no material deterioration of the condition was likely, within reasonable medical probability, to result from or occur during the transfer/discharge of the individual from the hospital, or in the case of a pregnant woman in labor, that the pregnant woman had delivered the child and the placenta)? - Basically, can the individual be safely discharged home?

15. Stabilizing Treatment – Available Resources? 5a. Is there any evidence that the hospital was equipped with such staff, services, or equipment necessary to “stabilize” (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 hospital, or that a pregnant woman has delivered both the child and the placenta) the emergency medical condition?

16. Stabilizing Treatment – available resources? 5b. If the hospital had the capability to stabilize the individual and the individual was not stabilized prior to transfer/discharge, is there any information available to indicate WHY the emergency medical condition was NOT stabilized prior to the discharge/transfer?

17. Appropriate Transfers Transfer is “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 the movement of an individual who….leaves the facility without the permission of any such person.”

18. Appropriate Transfer to Another Hospital 6a. If the individual was transferred to another hospital, is there evidence that the sending hospital lacked the capabilities and facilities to provide further medical examination and treatment to stabilize the individual’s medical condition? 6b. If the individual was transferred to another hospital, did the transferring hospital provide further examination and stabilizing treatment, within its capabilities (including ancillary services routinely available to it) to minimize the risks of transfers to the individual’s health and, where relevant, the health of the unborn child?

19. Appropriate Transfer to Another Hospital -- Transportation • If the individual was transferred to another hospital, to minimize the risks of transfer, did the transfer of the individual require the use of qualified personnel and transportation equipment, including life support measures if medically appropriate? • If the individual was transferred to another hospital, were the transportation equipment and personnel appropriate to the transferred individual’s needs?

20. Medical Benefits of Transfer to Another Hospital 9a. At the time of the transfer, did a physician, or if a physician was not physically present, another qualified medical person (in consultation with a physician, who subsequently countersigned the certification) certify in writing that, based upon the reasonable risks and benefits to the individual, and based upon information available at the time of transfer, the medical benefits reasonably expected from medical treatment at another facility outweighed the increased risks to the patient from effecting the transfer?

21. Medical Benefits of Transfer to Another Hospital 9b. Do you agree that at the time of transfer, based upon the reasonable risks and benefits to the individual and based upon information available at the time of transfer, the medical benefits reasonably expected from medical treatment at another facility outweighed the increased risks to the individual being transferred? 9c. If the individual (or a legally responsible person acting on the individual’s behalf) requested the transfer in writing, was he/she informed of the hospital’s obligations and of the medical risks of transfer?

22. Medical Benefits of Transfer to Another Hospital 10. Did the transferring hospital receive the agreement of the receiving hospital to accept the transfer and to provide appropriate medical treatment? 11. Does the documentation suggest that the transferring hospital sent to the receiving hospital all available and pertinent medical documentation related to the emergency medical condition?

23. Medical Benefits of Transfer to Another Hospital • If the individual refused to consent to necessary stabilizing medical treatment or to an appropriate transfer, is there evidence the hospital first offered the individual the further medical examination and treatment or appropriate transfer, informing him/her of the risks and benefits, and obtained the individual’s informed, written refusal?

24. Recipient Hospital Refusal 13. Is there any evidence that a Medicare-participating hospital that refused a transfer request has specialized capabilities or services (not available at the transferring hospital) that an individual required? - Reverse dumping prohibited - Hospitals with specialized capabilities may not refuse appropriate transfer - Patient requires such specialized capabilities - Receiving hospital has capacity to treat patient

25. Delay in Treatment 14. Is there any evidence that the hospital under review delayed for an inappropriate length of time the provision of an appropriate medical screening examination or further medical examination and treatment?

26. Quality of Care 15. Do you have any specific concerns about the quality of care rendered to the individual that have not already been addressed fully above?

27. Summary • Please summarize the key facts of the case below and any concerns or clarifications to your answers above with regard to this case. Remember, do not state an opinion regarding whether EMTALA was violated.

28. Initiation of an EMTALA Investigation • Patient/family complaint • Routine state survey • Receiving hospital complaint • Self disclosure • Employee

29. EMTALA Investigation Prior to QIO Involvement • Complaint acknowledgment (CMS) • Investigate complaint (CMS & DHSS) • DHSS state surveyors on-site • Interviews • Medical record & policy reviews • ED log reviews

30. EMTALA Investigation – QIO Sequence • Compliance determination (CMS) • Immediate medical opinion (QIO) • Advisory in nature only • Statement of deficiencies (CMS) • Plan of correction (from Hospital, and accepted by CMS) • Resurvey (DHSS)

31. EMTALA Investigation – After Determination of a Violation has been Finalized • Due process provided to the hospital through the QIO • 60-day review period • Opportunity to discuss • Case is re-reviewed and opinion forwarded to CMS • CMS refers to OIG • Consideration of exclusion and/or Civil Monetary Penalties

32. EMTALA – Common Pitfalls to Avoid • Specialist on-call says: “I can’t/won’t/don’t want to come in.” • On-call physician says: “Call the surgeon/internist.” • Patient’s Physician on the phone says: “Send her to my office!” • “There’s a Code in room 2.” • “The doctor hasn’t answered my page.” • Patient says: “I just want to get checked out.” • Family says: “Can we take him in our car?”

33. EMTALA – Common Pitfalls to Avoid • Insufficient systems in place • Lapses in judgment • Turf disputes • Elopements • Misunderstanding of “stabilized” • Process not in place/followed

34. QIO’s Internal EMTALA Review Process –Physician Reviewer Requirements • Actively practicing • Specialty • Same specialty as attending physician or • Type of service under review • Practice in similar setting • No conflicts of interest • Agree to testify

35. QIO’s Internal EMTALA Review Process :Physician Reviewer -- Due Diligence • Consider the information an ED treating physician: • Had, could have had, and/or should have had available to him/her at the time of the individual's visit • Is responsible to be aware of EMTALA provisions (e.g., §1867 provisions), and • Could have discovered reasonably and which was necessary to adequately care for the individual (e.g., the physician should have taken an adequate history) at the time of the individual's visit.

36. QIO’s Internal EMTALA Review Process -- Summary • Two levels of review • 5 day review: the PR has 24 hours to review and return the completed Worksheet • 60 day review: the PR has at least a week to review and return the Worksheet • Primaris will overnight materials to the PR • The Nurse Reviewer will make arrangements with you to return the case file

37. EMTALA References • 42 CFR 489.24 and 42 CFR 489.20 • Special responsibilities of Medicare hospitals in emergency cases • 42 CFR 1003 • Civil monetary penalties & assessments • State Operations Manual • Interpretive Guidelines • 42 USCA Section 1395dd

38. For questions and additional information, call Rita Ketterlin at 1-800-735-6776, ext. 153