HCCA’s 2000 Compliance Institute September 25, 2000 Thomas Snyder, Deloitte & Touche, LLP

3B. Investigating the Wonders of Emergency Room ComplianceEMTALAThe Essential Details, Hot Issues, Latest Update, & Illustrations HCCA’s 2000 Compliance Institute September 25, 2000 Thomas Snyder, Deloitte & Touche, LLP (215) 246-2514

EMTALA Overview • Public Policy Debate • Patients Objective – Access • Providers’ Collective Fear - Cost Shifting • MCOs’ Objective - Cost Reduction

EMTALA Challenge An Emergency Department refuses to see a patient who does not have insurance and cannot afford to pay for the services. Is this EMTALA compliant? An Emergency Department sends all self-pay patients who do not have emergent conditions to the walk-in clinic. This benefits both the patient (reduced costs) and the hospital (reduced expenses). Is this EMTALA compliant?

EMTALA Overview • Purpose of EMTALA • To ensure non-discriminatory access to emergency medical care and appropriate inter-hospital transfers. • To prevent dumping and reverse dumping and the disparate treatment of patients (whether as a result of the existence, non-existence or type of insurance, or for any other reason).

EMTALA Overview • Responsibility of Medicare Participating Hospitals that Operate Emergency Departments • to provide the Medical Screening Exam required by law • to treat/stabilize patients with EMCs • to provide appropriate transfer of patients • Medicare Conditions of Participation • adopt policies to ensure compliance with EMTALA • maintain transfer records for five years • maintain list of on-call physicians • post signage in ED regarding EMTALA rights

EMTALA Overview • Other Requirements • Whistleblower protections • Maintenance of physician on-call lists • Reporting requirements • Applicability to Physicians • EMTALA applies to emergency physicians, on-call specialists and other members of the medical staff who are responsible for examination, treatment or transfer of patients.

EMTALA Focus and Enforcement • OIG Workplan – 1999, 2000 • HCFA/OIG Joint Special Advisory - Nov. 10, 1999 • Federal Register – Apr. 7, 2000 (Final with comment period) • Fines – • Fines up to $50,000 for each violation ($25,000 for hospitals with less than 100 beds). • Approximately 25% of hospitals have had an EMTALA action. • In FY’99 there were 61 judgments/settlements - $1,700,000. • Other Costs of Enforcement. • Plan of correction • Legal fees • Public perception

Liability for Non-Compliance • Administrative Sanctions (violations and failure to report violations) • program exclusion • fines • Private Rights of Action under EMTALA • patients v. hospitals • hospitals v. hospitals • Tort Liability for Hospitals/Physicians • EMTALA and Evolving Standards of Care • Evidence of negligence • Institutional liability • Insurance issues

Liability for Non-Compliance • Some Points to Remember • A misdiagnosis or malpractice does not mean a per se EMTALA violation, and; • EMTALA does not require a “bad outcome” in order for there to be a violation, but; • “A bad outcome” can lead to an EMTALA investigation

EMTALA Challenge A hospital without an emergency department has a patient show up with an emergency medical condition. Is the hospital obligated under EMTALA?

Emergency Department • Focus on Function, Not Form – Lack of an established emergency department does not mean that emergency services are not provided. • Campus Rule - campus includes all contiguous facilities and off site facilities using the hospital’s provider number. (see new regulations) • Includes driveways, garages, sidewalks, and lobbies. • Also includes hospital owned ambulances whether or not they are on hospital grounds. • Ravenswood Case (1998)

EMTALA Challenge The Emergency Department physician, after examining a patient who presented with a headache, determines that the patient is probably suffering from a migraine but considers that the patient may have a vascular disorder (aneurysm). As a result she discusses the issue with the patients family physician who orders an MRI, which the patient will have later in the day. The emergency physician documents the MSE, orders pain relief medicines and discharges the patient with instructions to get the MRI? Is the physician EMTALA compliant?

MSE & EMC • Medical Screening Exam (MSE)-process to reach, with reasonable clinical confidence, the point at which it can be determined whether a medical emergency condition does or does not exist. • Emergency Medical Condition- means a medical condition manifesting itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in: • placing the health of the patient (or unborn child) in serious jeopardy. • serious impairment to any bodily functions • serious dysfunction of any bodily organ or part. • pregnancy with contractions.

EMTALA Challenge An Emergency Department physician is tied up with a cardiac arrest that is going to take a while. The physician delegates the MSE duties to a physician assistant. Can the physician assistant perform the MSEs in compliance with EMTALA?

MSE & EMC • Medical Screening Exam (cont’d) • Triage is not an MSE. • Must be applied consistently. • Must not be delayed. • Must be performed by qualified Medical Staff - as defined in the bylaws. • Location- cannot be different for different classes of patients. • May require diagnostic test(s). • It is an ongoing process - continues until discharge. • Once it is determined that a medical emergency condition does not exist, obligations under EMTALA no longer apply.

Stabilization • To Stabilize- “to either provide such medical treatment of the condition necessary to 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 facility, or that the woman has delivered the child and the placenta.”

Stabilization • Stabilization Treatment • If an emergency medical condition is determined to be present after the MSE, the hospital must provide stabilizing treatment within the scope of its abilities. • Includes stabilization for transfer or discharge within capabilities and capacity.

EMTALA Challenge A patient arrives at the Emergency Department with an abscess on her arm. The physician in the Emergency Department has the capability to perform an incision & drainage (I&D) of the abscess. Can the physician discharge the patient without doing the I&D after making arrangements for the patient to be treated by a surgeon that afternoon?

Stabilization • Stable for Transfer- the treating physician has determined, within reasonable clinical confidence, that the patient is expected to be received at the next facility, with no material deterioration in his/her medical condition; and the physician reasonably believes the receiving facility has the capability to manage the patient’s medical condition and any reasonable foreseeable complication of that condition. • Stable for Discharge- the patient has reached the point where his/her continued care, including diagnostic work-up and treatment, could reasonably be performed as an outpatient or later as an inpatient.

Transfer • Transfer - the movement of an individual outside a hospital’s facilities at the direction of any person employed by (or affiliated or associated with) the hospital. It does not include dead persons or persons leaving “against medical advice.” • Appropriate Transfer - the transfer of an “unstable” patient from one facility to another upon (i) the determination and certification by the physician that the benefits of transfer outweigh the risks or (ii) the written request of the patient, and for which the four (4) requirements of an appropriate transfer are met.

EMTALA Challenge A hospital emergency physician transfers a patient to another hospital for an MRI of the head to evaluate trauma. The patient appears stable and so no forms required of an unstable transfer are utilized. The radiologist at the hospital that performed the MRI notes that there is some intracranial hemorrhage evident and informs the emergency physician at the sending hospital and sends the patient back where the patient receives appropriate treatment. Are there any EMTALA issues here?

Transfer • A transfer of an UNSTABLE patient must be an appropriate transfer. • The transferring hospital provides medical treatment within its capacity that minimizes the risks to the patients health • The receiving hospital has available space and qualified personnel and has agreed to the transfer. • The transferring hospital sends all medical records related to the emergency condition. • The transfer is effected by qualified personnel and equipment. • Applies to transfers for diagnostic testing to determine emergency medical condition even if intent is to return to the ER.

EMTALA Challenge Hospital ‘A’ is on diversion because they are at capacity. Hospital ‘B,’ a nearby facility is well aware of the diversion status but sends a patient to Hospital ‘A’. Additionally, the transfer is a lateral transfer, meaning that Hospital ‘B’ could effectively provide the services that the patient requires. Can Hospital ‘A’ refuse the transfer since they are on diversion?

Transfer • Lateral Transfer - transfers between facilities of comparable resources • multi-hospital systems, convenience of the physician. • Refusals of Transfers - transfers can be refused by the receiving hospital under certain circumstances • Formalized diversionary status • Lateral transfers • NOTE: Use extreme caution in any refusal of a transfer.

Capabilities • “the capabilities of a medical facilitymeans that there is physical space, equipment, supplies, and services that the hospital provides (e.g., surgery, psych., Ob-gyn, intensive care, pediatrics, trauma).” For off-campus facilities the capabilities are that of the hospital as a whole. • “the capabilities of the staff of a facilitymeans the level of care that the personnel of the hospital can provide within the training and scope of their professional licenses.”

EMTALA Challenge A specialty hospital is licensed for 300 beds. All of the beds are occupied. Can the hospital refuse a transfer of a patient that requires the specialty care provided by the hospital?

Capacity • Past experience over licensed capacity • Capacity includes whatever a hospital customarily does to accommodate patients in excess of its occupancy limits. • Examples are moving patients to other units, calling additional staff, borrowing equipment from other facilities

Other Requirements • On-Call Physician Coverage • By-Laws must define responsibilities. • Response times are to be delineated. • “Reasonable” response time is not sufficient • Response times should be tracked. • There should be a mechanism for disciplinary action against violators. • The hospital has discretion on policy. • There must be a policy on what to do when a specialty is not on-call, or cannot respond. • Physicians on call cannot see patients in their offices, they must come to the ER.

EMTALA Challenge A patient left a hospital Emergency Department “against medical advice”(AMA). The patient left without any notice to Emergency Department staff. The staff noted in the patient record that the patient left AMA, the time it was discovered, and that they were unable to get an AMA form signed by the patient. Is there any EMTALA violation here?

Other Requirements • Against Medical Advice (AMA) • Hospital has an obligation to show further examination and/or treatment was offered prior to patients refusal. • Need to document discussion of risks of AMA. • Must document attempts to have patient sign AMA form which contains risks of AMA. • Should document the circumstances around the AMA withdrawal. • The Special Advisory Bulletin indicates that routinely keeping patients waiting so long that they leave AMA can be a violation of EMTALA.

Other Requirements • Central Patient Log • Hospital has discretion on how to maintain. • Should include, directly or by reference, the logs of other areas where a patient might seek emergency services, such as Labor and Delivery, Pediatrics. • Should track all individuals who seek care and whether he/she refused treatment, was refused treatment, transferred, admitted and treated, stabilized and transferred, or discharged.

EMTALA Gray Areas • An inpatient is transferred? Do the EMTALA requirements apply? Does it make a difference if they are transferred for a problem similar to that for which they came to the ED. • Private physician referrals to ED for procedure such as foley catheter insertion, g-tube placement or dressing change. Does the ED QMP have to see the patient? • Patient leaves the ER without permission because he/she is waiting excessively.When the ED is very busy, is there an affirmative responsibility to offer transfer to waiting patients? • Lateral transfers. Do they place the hospital at risk for EMTALA violations?

Recent Case Findings • General • Diversionary status implementation difficult to effectuate because of Administration demands. • Emergency Staff meeting minutes states that staff should do its best to direct insured patients to the fast track. • Collecting cash payments on all self pay patients pre-medical screening. • No evidence of any unstable transfers. • Not tracking 48 hour returns. • Very poor documentation of AMA discharges.

Recent Case Findings • Signage not consistent with regulations • too few locations • not in all treatment areas. • not in fast track treatment area- which is usually used as minor surgical suite. • not in Labor & Delivery area. • placement in areas not very visible • behind door when door is opened. • behind chair in which patient sits for triage.

Recent Case Findings Transfers • Inadequate transfer form completion • Nursing assessments incomplete or absent. • Transfer times not noted. • Times at which receiving hospital were notified of transfers not noted. • Transfer forms are not being used for diagnostic transfers.

Recent Case Findings Bylaws • Bylaws that are inconsistent with policies • Bylaw that requires all ER patients to be seen by a physician; Policy states certain patients can be seen by a nurse only. • Bylaws indicate that a physician or physician designee must do medical screening exam; policy states that registered nurses must do medical screening.

Recent Case Findings Bylaws (cont.) • Bylaws inadequate • No on-call participation requirement. • On-call response times not specified. Verbiage only indicated timely response. • On-call response times were located in Emergency Department Staff by-laws only. • Indicated that the Medical Screening Exam must be done by Physician or Physician “designee.” Designee is not defined.

Recent Case Findings Policies and Procedures • Insufficient Policies and Procedures • No policy on what to do if on-call physician did not respond in adequate fashion. • No policy for acceptable response times. • No policy for tracking response times. • Three (3) differing policies for AMA discharges located in varying areas of P&P manual. None had the same “required” AMA form.

Recent Case Findings Policies and Procedures (cont.) • Noncompliance with policies & procedures • Policy requiring assignment of triage level to all patients upon arrival, and times. • Policy indicating that vital signs must be done at frequency consistent with patients condition. • Policy indicating that physician must witness patient consent signature on transfer form (not an EMTALA requirement). • Patient assessments were to be done pre-discharge; not documented on majority of patients.

New Regulations • “Comes to the emergency department” – means, with respect to an individual requesting examination or treatment, that the individual is on hospital property. Property means the entire main hospital campus, including the parking lot, sidewalk, and driveway, as well as any facility that is located off the main campus but has been determined to be a department of the hospital. It also means hospital owned ambulances on or off the hospital grounds. • Campus- means the physical area immediately adjacent to the provider’s main buildings, other areas and structures that are not strictly contiguous to the main building but are located within 250 yards of the main buildings, and other areas determined on an individual basis to be part of the provider's campus. • Does not include: • Free standing facilities • Non-provider based entities • Remote locations that are separately licensed

New Regulations • Responsibilities of the off-campus facilities: • The standard for capabilities is that of the hospital as a whole, not just the capability of the off-campus site. • Limited to hours of operation. • Hospital is not required to locate additional resources • Exception: The standard for capability is that of the off-campus facility when it is determined that the patient needs to be transferred to another hospital. • Protocolsmust be established for the handling of potential emergent patients and must include direct contact between off-campus personnel and ED staff and may provide for dispatch of practitioners, when appropriate to provide screening or stabilization.

New Regulations • Protocols • Department is an urgent care, primary care center or other facility staffed by physicians, RNs, or LPNs • Training, protocols for handling of emergency cases, & designation of QMP. • Must perform, or initiate, MSE. • Begin stabilization treatment. • Arrange appropriate transfer. • Department is not staffed by physicians, RNs, or LPNs • Protocols to contact the emergency department staff. • Protocols to report the symptoms and describe appearance. • Protocols to arrange transfer to main hospital or assist in an appropriate transfer.

New Regulations • Responsibilities of the off-campus facilities: • Movement or appropriate transfer is dependent on capabilities of main hospital • Movement to the main hospital is not considered a transfer. • Transfers to another hospital • Follow protocols to assist in arranging an appropriate transfer. • The protocols must include procedures and agreements established in advance with other hospitals or medical facilities in the area. • Requirement for stabilization is that of the off-campus facility.

EMTALA and Managed Care • MCO’s Obligation to Provide and Pay for Emergency Services: • Federal and state statutes require MCOs to provide emergency services. • Medicare/Medicaid HMO members entitled to same level of services. • No obligation to pay for commercial patients. • EMTALA Not Applicable to MCOs • EMTALA only provides a private right of action against “hospitals.” • ERISA Preemption.

EMTALA and Managed Care • HCFA/OIG Special Advisory Bulletin • Dual staffing raises concerns of discrimination, but is not a per se violation of EMTALA. • Pre-authorization is not acceptable until patient has had MSE and is stabilized. Medical consultations are OK. • Use of ABNs and Other Financial Responsibility Forms should not be requested before MSE and stabilization. • Inquiries of patients about financial responsibility require special handling. • Voluntary (AMA) withdrawals require certain steps.

EMTALA Compliance Checklist • 1. Develop necessary policies and procedures to comply with EMTALA. • 2. Post required signage in the “emergency department”. • 3. Maintain medical and other records related to individuals transferred to and from the hospital for five years from the date of transfer. • 4. Maintain a list of physicians who are on call. • 5. Maintain a central log documenting each individual seeking treatment. • 6. Provide an appropriate medical screening examination. • Do not delay medical screening, examination and/or stabilizing treatments to inquire about a patient’s payment status. • 7. Provide necessary stabilizing treatment for emergency medical conditions.

EMTALA Compliance Checklist (cont.) • 8. Provide an appropriate transfer of an unstable patient to another medical facility only if the benefits of the transfer outweigh the risk. • Provide treatment to minimize the risk of transfer. • Obtain the consent of the receiving hospital to accept the transfer. • Send pertinent records to the receiving hospital. • Ensure that qualified medical personnel and transportation equipment are used to transfer an unstabilized patient. • 9. Provide EMTALA training to hospital staff and medical staff. • 10. Do not penalize or take adverse actions against a physician or QMP because that individual refuses to authorize the transfer of an unstable patient or against any hospital employee who reports a violation of these requirements.

EMTALA Document Checklist • 1. ED Logs and Labor and Delivery (L&D) Log: • Time and mode of arrival • Chief Complaint • Disposition of patient and discharge time • 2. Policies: • Protocols for off-campus departments • ED Admissions and Discharge Policy • Retention and Storage of Logs and Records Policy • ED (and L&D) Registration Policy • Voluntary withdrawal (AMA) Policy • EMTALA Policy, if stand alone • Physician On-Call Policy and on-call lists • ED Triage Policy • ED and Hospital Transfer Policy w/ consent form • Diversionary Status Policy • ED Money Collection Policy

EMTALA Document Checklist (cont.) • 4. Bylaws: • On-call responsibilities • ED regulations and EMTALA responsibilities • Definition of who can perform MSEs (QMPs) or Board Resolution that states the same. • 5. Other: • Signage • Dual Staffing arrangement information • Prior audit information • Patient complaints log • EMTALA training documentation • Emergency Department staffing schedules • ED Committee minutes • Quality assurance minutes as they relate to EMTALA • Managed care contracts • Ambulance ownership information

HCCA’s 2000 Compliance Institute September 25, 2000 Thomas Snyder, Deloitte & Touche, LLP