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AVOIDING EMTALA WHEELS OF MISFORTUNE UNDER THE FINAL REGULATIONS

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AVOIDING EMTALA WHEELS OF MISFORTUNE UNDER THE FINAL REGULATIONS

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    1. AVOIDING EMTALA WHEELS OF MISFORTUNE UNDER THE FINAL REGULATIONS

    2. 2 If EMTALA (Emergency Medical Treatment and Labor Act) makes you feel like this…

    3. 3 Parts of new regs better Final EMTALA rules published Sept. 9, 2003, effective Nov. 10, 2003, modifying 42 CFR Parts 413, 482 and 489; see Fed. Reg. Vol. 68, No. 174, pp. 53222 – 53261 for Preamble, pp. 53261-53264 for new rule. (All references to 42 CFR.) Revised Interpretive Guidelines 5/13/04 (Appendix V, State Operations Manual, www.cms.hhs.gov/medicaid/survey-cert/sc0434.pdf) New regs ease compliance burden in some areas, other areas still murky Not many bright line rules; CMS/OIG can still determine after the fact whether violation has occurred Will review basic EMTALA and new rule

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    6. 6 ER statistics (www.healthlaweyrs.org/hlh/docs/040329_CDC_survey.pdf) In 2002, 110.2 million visits to EDs, about 38.9 visits per 100 persons. (Increase from 89.8 million in 1992, or 23%) Increasing trend for people over 44 yrs. Leading complaints abd. pain, chest pain, fever, cough 1 of 100 ED patients required immediate attention (unconscious, or needed resuscitation) Most frequent diagnoses contusions, acute URI, open wounds, abd. pain 12% result in admission Average 3.2 hours in ED

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    11. 11 New regulations Where EMTALA applies on/off campus (§ § 413.65, 482.12, 489.24) Application to inpatients (§ 489.24) Ambulance issues (§ 489.24) Preauthorization and financial inquiries (§489.24) Physician on-call panels (hottest issue) (§ 489.24)

    12. 12 Financial inquiries/preauthorization, §489.24(d)(4) Hospital cannot delay MSE or emergency treatment to ask about payment/insurance Hospital may not seek authorization for screening or stabilization until after MSE and after INITIATING any further treatment to stabilize emergency ER physician or staff may contact patient’s physician re medical history/needs if it doesn’t inappropriately delay treatment

    13. 13 Financial inquiries/no delay Hospitals may follow reasonable registration processes, including asking re insurance as long as inquiry does not delay screening or treatment. “Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation.” Carefully develop policy/procedure on who can say what! No intimidation of patients!

    14. 14 Physician on-call panels, §489.24(j) Each hospital must maintain on-call list of physicians in a manner that best meets needs of hospital’s patient who are receiving services required by EMTALA in accordance with resources available to hospital, including availability of on-call physicians.

    15. 15 On-call rule Hospital must have written policies/procedures: To respond to situations in which particular specialty is not available or on-call physician cannot respond due to circumstances beyond physician’s control; and To provide that ES are available for patients with emergencies if it permits physicians to schedule elective surgery when on call or to have simultaneous on-call duties

    16. 16 On-call developments On-call stipends more common. 42% of hospitals paying now vs. 39% in 2002, (Governance Institute). Fewer physicians on-call due to new rules, resulting in more transfers and less specialty care. Physicians have more leverage over hospitals than before.

    17. 17 Top 10 on-call rules 1. Hospital must maintain on-call list of physicians who agree to provide on-call services. 2. If on-call physician doesn’t come in, physician (and maybe hospital) violates EMTALA. Hospital Board to monitor and enforce on-all obligations, including discipline as needed. No rule of three, no pre-determined ratio. Gov’t won’t dictate particular call schedule due to varying capabilities. Gov’t gives flexibility to develop call schedule within capabilities.

    18. 18 Top 10 on-call rules 4. PA, NP can respond, if OK with on-call and ER physicians, if consistent with scope of practice laws, hospital rules. Case-by-case determination, not automatic. Hospital can permit on-call physician to have simultaneous call (if both hospitals aware) and schedule elective surgery, with back up plan (on-call doc#2 or transfer). Specialty not required to be on call at all times, as long as policies/procedures available. OK to exempt senior staff if it doesn’t adversely affect patient care.

    19. 19 Top 10 on-call rules Best practice for hospitals to offer particular services to public through on call coverage CMS will look favorably on referral agreements with other hospitals to facilitate appropriate transfers of patients (not required because some hospitals may be unable to obtain them). 10. Individual physicians names, not groups, must be on on-call list.

    20. 20 On-call Enforcement If patient is transferred, gov’t will determine after the fact whether call was sufficient and will consider no. of physicians on staff and in specialty practice demands in treating other patients, (conferences, vacations, days off and other factors) Policies and procedures when specialist is not available or on-call physician is unable to respond

    21. 21 How much call is enough? We don’t know. Neither does gov’t. Ultimately must pass smell test: Did hospital use best efforts to organize itself and physicians to provide best on-call capabilities? Scope of on-call panels must be defensible.

    22. 22 If docs are not on-call but come in… IG §489.24(j)(1): physicians who refuse to be on on-call lists but take calls selectively for patients with whom they or colleague have doctor-patient relationship may violate EMTALA. If Hospital permits physicians to selectively take call while hospital’s coverage for service is not adequate, Hospital may violate EMTALA by encouraging disparate treatment.

    23. 23 Time to come to ER EMTALA policies or Med. Staff Bylaws must specify reasonable time to respond (telephone and in person) when requested by ER doctor. If physician fails to arrive, hospital and physician may violate EMTALA. Must specify exact length of time – can’t just say “reasonable” or “prompt” because they are not enforceable by hospital and therefore inappropriate.

    24. 24 10 Steps To Avoid EMTALA Wheels of Misfortune 1. Offer EMTALA education and training to key staff, including medical staff Review/revise existing EMTALA policies/procedures. Review authorization/registration procedures. 4. Bd. to approve policy to appraise emergencies off-campus. 5. Review scope of on-call panels, revise as needed.

    25. 25 10 steps to avoid trouble… 6. Address simultaneous call, scheduling elective surgery. 7. Review transfer/back-up physician policies. 8. Explore transfer agreements with other hospitals. 9. Create internal reporting system for EMTALA incident (early notification to correct problem). 10. Create procedure to address requests for gaps in coverage, with final decision-maker (Board or Medical Executive Committee)

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