How do you evaluate Hospital Compliance?

EMTALA – What’s New in 2015? How do you evaluate Hospital Compliance? Kathy Whitmire Managing Director HomeTown Health, LLC

EMTALA: What’s New in 2015 Objectives: • Describe the general EMTALA requirements • Discuss provisions including On Call and Transfer requirements • Define ways to avoid EMTALA violations

EMTALA - What is it? • The Emergency Medical Treatment and Labor Act (EMTALA) is a federal law that requires anyone coming to an emergency department to be stabilized and treated, regardless of their insurance status or ability to pay, but since its enactment in 1986 has remained an unfunded mandate. • EMTALA was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd)

What is EMTALA's scope? • According to the law, EMTALA applies when an individual "comes to the emergency department.“ • CMS defines a dedicated emergency department DED as "a specially equipped and staffed area of the hospital used a significant portion of the time for initial evaluation and treatment of outpatients for emergency medical conditions." • This means for example, that hospital-basedoutpatient clinics not equipped to handle medical emergencies are not obligated under EMTALA and can simply refer patients to a nearby emergency department for care.

How does CMS define an emergency? An emergency medical condition (EMC) is defined as a Medical condition manifesting itself such as the absence of immediate medical attention may result in: Placing health in serious jeopardy. • Serious impairment to bodily functions. • Serious dysfunction of any bodily organ or part • Pregnant Women That transfer may pose a threat to the health and safety of the woman or unborn child. • For example, a pregnant woman with an emergency condition must be treated until delivery is complete, unless a transfer under the statute is appropriate. • Definition specified at CFR 489.24 (b)

EMTALA - CFR 489.20 Updated EMTALA clarifications under 489.20 defines obligations for physicians responsible for the examination, treatment, or transfer of an individual in a participating hospital, including a physician on-call for the care of that individual. • The regulations created pursuant to section 1867 of the Act are found at 42 CFR 489.24. • https://oig.hhs.gov/authorities/docs/2014/fr-79-91.pdf

Central Log requirement 482.20 (r)(3) Documenting whether the patient: q Refused treatment q Was refused treatment q Transferred q Stabilized and transferred q Admittedq Treated q Left against medical advise (AMA )q Discharged • Document patient’s signature on AMA form or at least the attempt to get the patient’s signature. • Hospital may maintain separate logs for departments that may meet the definition of a DED, e.g. ED, L & D and Pediatrics • Patients who leave before opportunity to log - • Gather: Date, time, individual characteristics • and if possible nature of complaint

Medical Screening Exam 489.24(a)(1)(i) Provide an appropriate Medical Screening Examination (MSE) regardless of diagnosis, financial status, race, sex, color, national origin or disability. • Performed by a physician or other Qualified Medical Personnel (QMP) • QMPs approved by the governing body may include: Physicians, Nurse Practitioners, Physician Assistants and RNs. • Allows a certified mid-wife and other designated QMPs for certifying false labor

Medical Screening Exam 489.24(a)(1)(i) Purpose of Medical Screening Examination (MSE) is to determine with reasonable clinical confidence the presence or absence of an Emergency Medical Condition (EMC). MSE must be conducted using all capabilities of the DED including all specialist on-call.

Medical Screening Exam 489.24(a)(1)(i) Medical Screening Examination 489.24(a)(1)(i) continued… • Record must reflect continual monitoring • Parking patients arriving via EMS • Not allowed neither immediately nor indefinitely (Apply reasonable standard) Note: Triage is not a MSE

EXAMPLE #1 – NO MSE Specifically, the individual presented to the Olive View emergency department with signs of appendicitis and severe abdominal pain that he rated at a 10 on a 10-point scale. Despite his severe pain and symptoms, he was forced to wait for several hours to receive an MSE. After waiting for 6.5 hours, he left to seek medical screening and treatment at another hospital, where he was diagnosed with acute appendicitis with a large peritoneal abscess and had to undergo an immediate laparoscopic appendectomy.. Continued

EXAMPLE #1 – NO MSE According to EMTALA, if an individual comes to a hospital emergency department and a request is made on his/her behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate MSE within the capability of the emergency department to determine whether or not an emergency medical condition exists. $40,750 settlement resolves allegations that provider violated the Emergency Medical Treatment and Labor Act, (EMTALA), by failing to provide an individual with an appropriate medical screening examination (MSE) within the capability of the hospital's emergency department in order to determine whether he had an emergency medical condition.

Stabilizing Treatment 489.24 (d)(1)(i) Applicable only if: The MSE determines the individual is suffering from an EMC and Hospital has the capacity and capability. The hospital must: Provide further examination and treatment to stabilize the EMC. Definition of Stabilized - 489.24(b) • No material deterioration of the condition within reasonable medical probability occurring during the transfer of the individual. • For women in labor will be the delivery of the child and placenta.

Stabilizing Treatment 489.24 (d)(1)(i) The EMTALA obligation ends when the QMP certifies that: • That no EMC exists (underlying condition may persist) • That an EMC does exists and the individual is appropriately transferred to another facility • That an EMC exists and the individual is admitted to the hospital for further stabilizing treatment. • Admission must be in good faith in order to stabilize the EMC (overnight stay) • Patient refuses stabilizing treatment (Also applicable on transfers) • Hospital should communicate benefits and risks of treatment or transfer and get a written informed refusal from the patient.

Delay in examination or stabilizing treatment 489.24(d)(4) Delay in examination or stabilizing treatment: • Reasonable registration allowable but must not delay an appropriate medical screening examination (May include insurance info) • May not inquire about method of payment • May not require pre-authorization from insurance • Physician consultation must be relevant to EMC

EXAMPLE #2 – Stable Patients Stable patients in Thomas v. Christ Hospital, the Seventh Circuit remanded the case to the district court to determine whether a hospital violated EMTALA by discharging a patient before she was stabilized. • A man brought his wife to the hospital because she was crying profusely, driving recklessly and speaking incoherently. The social worker evaluating her noted she demonstrated manic-like symptoms and was deeply agitated. • The social worker concluded the patient was suffering from a psychosis induced by a steroid she was taking for a respiratory condition. . . . http://www.eslaw.com/Uploads/HealthLaw/EMTALA1.pdf

EXAMPLE #2 continued • Because the hospital’s psychiatric ward had no available beds, the social worker recommended admitting the patient to another part of the hospital or transferring her to another facility. • The emergency room doctor agreed with the social worker’s diagnosis, but didn’t agree that the patient presented a risk to herself or others, and discharged her. Before discharge, the doctor advised the patient to discontinue the steroid and to make an appointment to see her personal physician as soon as possible. • Three days later, the patient died when she struck a light pole while driving 80 miles an hour.

EXAMPLE #2 continued • Her husband sued the hospital for discharging the patient with an emergency medical condition. The trial court granted summary judgment for the hospital and the husband appealed. The hospital didn’t contest that the patient had an emergency medical condition, but instead argued that the patient was stable when discharged. • THE SEVENTH CIRCUIT COURT FOUND the social worker’s medical record entries and her testimony compelling on the issue of the patient’s stability. The court found the facts known and recognized by the hospital staff at the time of discharge indicated that the staff had reason to know that the patient may well have been unstable.

EMTALA Clarifications/Updates https://oig.hhs.gov/authorities/docs/2014/fr-79-91.pdf

EMTALA - CFR 489.20 Reporting Requirement 489.20(m) • Within 72 hours of the discovery to CMS or State Survey Agency EMTALA rights sign 489.20 (q) • Noticeable by all individuals in any area of the ED. • Specifying the examination and treatment rights of individuals and women in labor requesting an examination for a medical condition. • Whether the hospital participates in Medicaid. • Legible within 20 feet or from any vantage point. Retention of Medical Records 489.20 (r) • 5 years for any patient transferred to and from hospital)

On-call list of physicians 489.20 (r)(2) Maintain an On-call list of physicians 489.20 (r)(2) • Either for phone consultation or to present to the ER and provide stabilizing treatment. • Hospitals must be prospectively aware before physicians are allowed to: • Schedule elective surgery, diagnostic or therapeutic procedure during on call duty • Be on simultaneous on call duty at two or more facilities • Participate in a formal community call plan. • To allow exemptions from the on physician on-call list • To determine the frequency and specialty of the on call physician coverage • Sufficient on call specialty coverage reflecting the services offered by the hospital

SEE ARTICLE www.acep.org

ENFORCEMENT of CFR 489.20 EMTALA enforcement actions apply to both physician and hospital when an on-call physician fails or refuses to appear (reasonable time) and fulfill on-call responsibilities.* *Except when hospital arranges for another on-call physician to respond. Note: Hospitals must have planned back-up in the event the physician is called during elective surgery or already responding to another request. Physician Group Names are not acceptable for identifying physicians on-call.

EXAMPLE #3 – On Call Availability Specifically, the patient came to the DCH emergency department with a gunshot wound in his abdomen region. • The emergency department physician determined that the on-call general surgeon needed to evaluate and treat the patient and the staff contacted the on-call general surgeon multiple times. • The on-call general surgeon indicated that he was performing a previously scheduled elective surgery in the operating room.

EXAMPLE #3 – On Call Availability • DCH's emergency department was unable to find another general surgeon to evaluate and provide stabilizing treatment to the patient. • The on-call general surgeon then performed a second previously scheduled elective surgery in the operating room, without first evaluating and providing stabilizing treatment to the patient in the emergency department. • After waiting approximately two hours at DCH, the patient died, never having received an evaluation or stabilizing treatment from a general surgeon

EXAMPLE #3 – On Call Availability OCTOBER 30, 2014 FINDING: • $40,000 fine was imposed for EMTALA violation by the on-call physician failing to conduct an appropriate medical screening examination and provide stabilizing treatment to a patient who came to the DCH emergency department with an emergency medical condition.

Appropriate Transfer 489.24(e) The Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986—often referred to as the patient anti-dumping law—requires a hospital to: • stabilize a patient's emergency condition within its capabilities prior to transfer, and • a hospital may not transfer an unstable patient unless the patient requests transfer or a physician certifies that the benefits of transfer outweigh the risks. Under EMTALA hospitals/physicians can be fined up to $50,000 per violation.

Transfer 489.24(e) Definition of Transfer 489.24(b) “The movement (including the discharge) of an individual outside a hospital’s facilities at the direction of any person employed by the hospital” 489.24(e)(3) Hospital cannot penalize or take adverse action against QMPs or employees for reporting an EMTALA violation

Transfer 489.24(e) Transfers should be exercised after: • Patient has been logged • Patient has received an appropriate medical screening examination • Patient emergency has not been stabilized • Hospital has minimized the risks of the individual’s health or the unborn child but does not have capacity and capability to stabilize the EMC.

Transfer 489.24(e) Appropriate Transfer Requirements : • Individual is in agreement with the transfer after being informed of risks and benefits (when patient unconscious physician certification applies) • Physician has certified that medical benefits outweigh the risks of the transfer (QMP may certify in the absence of a physician) • Hospital has contacted an accepting facility with the appropriate space(capacity) and staff/equipment (capability). • Transferring hospital must send all pertinent records with the patient • Transfer is effected through qualified personnel and transportation equipment

Recipient Hospital Responsibilities 489.24(f) • Medicare Participating Hospitals within US boundaries • Hospitals that have special capabilities including but not limited to: • Burn units • Shock-trauma units • Psych Hospitals • Neonatal ICU • Regardless of whether the hospital has a DED • Hospital may not refuse an appropriate transfer of an unstable individual who requires the specialized capabilities if the receiving hospital has the capacity to treat the individual’s EMC.

Recipient Hospital Responsibilities 489.24(f) • Must accept patients that were put on observation status • Transport Service should not be a condition for accepting the transfer • Physician may not refuse on their own (over the phone) diagnosis of patient • An equally capable hospital may not refuse an appropriate transfer if the transferring hospital: • Has a serious capacity problem • Mechanical failure of equipment • Loss of power

EXAMPLE #4 – Patient Dumping A TN provider paid $40,000 to settle allegations by the OIG that it broke the law when it transferred a patient that had come to its emergency department after consuming a bottle of antifreeze without first stabilizing the patient's medical condition. Emergency room personnel, it is alleged, determined the patient should be admitted to an intensive care unit and, despite the availability of a bed in the hospital ICU, the patient was sent elsewhere because the hospital did not accept the patient's insurance.

EXAMPLE #4 – Patient Dumping The Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986—often referred to as the patient anti-dumping law—requires a hospital to stabilize a patient's emergency condition within its capabilities prior to transfer, and a hospital may not transfer an unstable patient unless the patient requests transfer or a physician certifies that the benefits of transfer outweigh the risks. Under EMTALA providers can be fined up to $50,000 per violation. https://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp

ENFORCEMENT of CFR 489.20 EMTALA enforcement actions apply to both physician and hospital when an on-call physician fails or refuses to appear (reasonable time) and fulfill on-call responsibilities.* *Except when hospital arranges for another on-call physician to respond. Note: Hospitals must have planned back-up in the event the physician is called during elective surgery or already responding to another request. Physician Group Names are not acceptable for identifying physicians on-call.

Penalties for Violating EMTALA Civil Monetary Penalties (CMPs) may include: • Termination of the hospital or physician's Medicare provider agreement. • Hospital fines up to $50,000 per violation ($25,000 for a hospital with fewer than 100 beds). • Physician fines $50,000 per violation, including on-call physicians. • In addition, the hospital may be sued for personal injury in civil court under a "private cause of action"

Penalties for Violating EMTALA 489.20 states that both CMS and the OIG have administrative enforcement powers with regard to EMTALA violations. • There is a 2-year statute of limitations for civil enforcement of any violation. • IMPORTANT - A receiving facility, having suffered financial loss as a result of another hospital's violation of EMTALA, can bring suit to recover damages.

Penalties for Violating EMTALA NOTE: An adverse patient outcome, an inadequate screening examination, or malpractice action do not necessarily indicate an EMTALA violation; however, a violation can be cited even without an adverse outcome. • There is no violation if a patient refuses examination &/or treatment unless there is evidence of coercion.

In Summary –To Avoid a Violation • The EMTALA law renders many common practices among physicians and hospitals illegal, even though physicians may think that what they are doing is prudent or simply good business. • Physicians may view their actions as harmless, but substantial fines may result. Here are common errors by physicians on call to emergency departments (ED) and the situations pertinent to each. • When asked to come in to see an ED patient: • Debating with the ED physician over the necessity of coming in. Once the request is made to come in, the duty attaches. In addition, • EMTALA places the decision power with the physician with "eyes on“ the patient.

When asked to come in to see an ED patient: • Debating with the ED physician over the necessity of coming in. • Once the request is made to come in, the duty attaches. In addition, EMTALA places the decision power with the physician with "eyes on“ the patient. • 2) Refusing to come in and suggesting that the patient • be seen by another specialist. • The on-call physician must respond to all ED requests. A neurosurgeon's refusal to come in based on a bona fide belief that another specialist would be better suited to the patient's needs still will be cited.

When asked to come in to see an ED patient: • Refusing to come in and ordering the patient • transferred to another facility because of severity or • scope of condition. • EMTALA requires the requested physician to respond. Phone evaluation is not sufficient if the ED physician asks the specialist to come in to see the patient. If the patient is too serious after specialty evaluation, the duty of making the transfer belongs to the specialist. If the ED physician asks only for a phone consultation, then merely giving a phone consult is not a violation, but should be documented by the ED physician as a phone consultation.

When asked to come in to see an ED patient: • 4) Instructing the ED physician to admit or to run various • testing and delaying coming in to see the patient until • a later time. • EMTALA requires prompt response within a "reasonable" time. These times are not extended by necessary or prudent testing or by admission. Delays in seeing admitted patients often lead to violations for failure to promptly stabilize the patient.

When asked to come in to see an ED patient: • 5) Declining the patient based on the patient's apparent • needs exceeding the physician's scope of practice. EMTALA requires physicians to render care within their privileges, not their scope of usual practice. The physician specialist must come in and justify in writing any transfers and effect the transfer.

When asked to come in to see an ED patient: • 6) Declining the patient because of the payer plan • status or self-pay status. • EMTALA requires services to be rendered regardless of means or ability to pay. Where evaluation or stabilizing care, including surgery, is not complete, EMTALA prohibits seeking advance approval from insurance companies or plans. (EMTALA does not, however, require the payer to make payment for the services.)

When asked to come in to see an ED patient: • 7) Declining the patient because he or she was • previously discharged from the physician's practice • for prior litigation or non-compliance. • While the patient has the right to decline the on-call physician, the on-call physician does not have the right under EMTALA to decline the patient.

When asked to come in to see an ED patient: • 8) When covering more than one hospital on call: • Asking that a patient be sent to the hospital where • the on-call physician is currently seeing patients • instead of going to the patient's location. • EMTALA requires all care to be rendered in the hospital where the patient presents. The only circumstances where the request to transfer would be valid would be if the needs of the patient could not be met in timely fashion where the patient presented, the requested transfer would allow more timely intervention for patient safety and response of the on-call physician was not possible (i.e., currently involved in surgery). Thorough documentation would be important.

Thank you! Kathy Whitmire, Managing Director HomeTown Health REFERENCES: http://statelaws.findlaw.com/florida-law/hospital-liability-the-federal-emergency-medical-treatment-and-l.html https://www.thesullivangroup.com/products_services/ps_emtala_quiz.asp http://www.acep.org/News-Media-top-banner/EMTALA/ http://www.eslaw.com/Uploads/HealthLaw/EMTALA1.pdf https://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp http://www.aans.org/Media/Article.aspx?ArticleId=9997

How do you evaluate Hospital Compliance?