3B. Investigating the Wonders of Emergency Room
Compliance
EMTALA
The 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
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Patients Objective – Access
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Providers’ Collective Fear - Cost Shifting
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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
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To ensure non-discriminatory access to emergency
medical care and appropriate inter-hospital
transfers.
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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
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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
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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
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Whistleblower protections
Maintenance of physician on-call lists
Reporting requirements
 Applicability to Physicians
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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
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OIG Workplan – 1999, 2000
HCFA/OIG Joint Special Advisory - Nov. 10, 1999
Federal Register – Apr. 7, 2000 (Final with comment period)
Fines –
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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
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patients v. hospitals
hospitals v. hospitals
 Tort Liability for Hospitals/Physicians
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EMTALA and Evolving Standards of Care
Evidence of negligence
Institutional liability
Insurance issues
Liability for Non-Compliance
 Some Points to Remember
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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)
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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:
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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)
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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
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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?
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Transfer
 A transfer of an UNSTABLE patient must be an
appropriate transfer.
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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 facility means 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 facility means
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
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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
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By-Laws must define responsibilities.
Response times are to be delineated.
• “Reasonable” response time is not sufficient
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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)
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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
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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
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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 premedical 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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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Does not include:
• Free standing facilities
• Non-provider based entities
• Remote locations that are separately licensed
New Regulations
 Responsibilities of the off-campus facilities:
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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 offcampus facility when it is determined that the patient
needs to be transferred to another hospital.
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Protocols must 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
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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:
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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 offcampus facility.
EMTALA and Managed Care
 MCO’s Obligation to Provide and Pay for
Emergency Services:
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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
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EMTALA only provides a private right of action against
“hospitals.”
ERISA Preemption.
EMTALA and Managed Care
 HCFA/OIG Special Advisory Bulletin
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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