EMTALA Education: A Way To Mitigate Risk

In 1986, the U.S. Congress decided by a bipartisan majority to enact statutes to prevent discrimination of patients seen in emergency rooms nationwide. The Emergency Medical Treatment and Active Labor Act was designed to protect patients from being “dumped” and/or refused treatment based on fiscal criteria.(1) EMTALA rights are extended to every person, child or adult, including noncitizens of the United States, who seeks care at an emergency department.(2)

This statute has been hailed as “a sweeping testament to the fundamental proposition that in the wealthiest nation on Earth, no person should be denied emergency medical care.”(3) However, the interpretation and enforcement of these legislative mandates have proven to be a tumultuous and sometimes costly process for those in executive medicine.(4)

Many health care leaders believe EMTALA was a result of “liberal-minded” policymakers; however, that is not the reality of its inception. The reason for such sweeping legislation grew from an increasing number of complaints from patients and/or their families, health care providers and concerned health care employees over EDs refusing to treat indigent people and/or transferring unstable or medically inappropriate patients. This practice is called “patient dumping,” a term also used by the Office of the Inspector General of the Department of Health and Human Services on its website. Moreover, the Centers for Medicare and Medicaid Services has become increasingly aware of hospitals discharging unstable patients ever since implementation, in 1983, of Medicare’s inpatient hospital prospective payment system.(3)

EMTALA helped correct the ongoing failure of existing laws to eliminate the so-called “wallet biopsy” screening actions of several for-profit hospitals.(4,5)

Health care leaders often believe EMTALA does not apply to large safety net hospitals. However, EMTALA has been created as a complaint-driven process; all complaints, no matter the size of the hospital, are screened by the CMS regional offices.

Upon receiving a complaint, a regional office will decide whether to authorize an unannounced visit by the state agency within that geographic location. The subsequent investigation is completed using the guidelines issued under the 68-page State Operations Manual.(6) CMS investigations from 2004 to 2015 resulted in more than 25 percent of U.S. hospitals (including large safety net facilities) being cited for EMTALA violations, with nearly 8 percent of those receiving fines determined by the OIG. Physician actions — or, often, the lack thereof — typically lead to the investigations and subsequent imposition of fines.(4-7)

Some physicians serving in an on-call consultant capacity boast they are exempt from EMTALA regulations. Nothing could be further from the truth. One of the documented high-risk areas for EMTALA violations is the failure of consultants to come to the bedside to evaluate a patient. The ED physician is responsible for determining if the on-call provider should evaluate the patient, and the hospital leadership must have a chain-of-command procedure to address on-call providers who challenge this process or state their refusal to appear bedside.(7)

A chief medical officer can assist in reminding the active medical staff that EMTALA places an unfunded mandate on designated EDs as well as on-call specialists (as deemed necessary by the ED physician) to provide a medical screening examination and stabilizing treatment for all patients.(1) A physician can be held individually liable for a fine of up to $50,000, and, because this is a civil penalty, the fine usually is not covered by malpractice insurance. From 2002 to 2015, eight physicians nationwide were cited and fined by the OIG, representing 4 percent of all EMTALA fines. Seven of these eight physicians were serving as on-call specialists, and their individual penalties ranged from $10,000 to $50,000.(4,5)

Another mistruth is that EMTALA allows on-call providers to request the ED staff to send patients needing their services to their office. Often, orthopedic and obstetrical specialists, who are keen to avoid disruption of their schedules, will make such demands. Unfortunately, such actions have resulted in multiple EMTALA investigations and fines. Hospitals must be able to validate (by chart review) that a physician has completed a medical screening examination and determined that the patient’s condition has stabilized before releasing that patient from the ED to outpatient follow-up medical care. EMTALA reviewers use the same worksheet when completing an investigation, and their checklist includes documentation of treatment, stabilization and appropriateness of discharge and/or transfer.(4,8)

Challenges

Since the establishment of EMTALA regulations, use of the nation’s EDs has increased. Moreover, research reveals that patients aware of the legal obligations EMTALA creates are more likely than other patients to present to an ED.(9)

Further complicating the situation is that many smaller facilities, struggling to maintain an adequate team of specialists, are increasingly dependent upon larger safety net hospitals.(10,11) As a result, larger receiving hospitals have increasing uncompensated care costs.

One such urban hospital, Denver Health, reports that its uncompensated care burden over the past 20 years has quadrupled from just over $100 million in 1991 to $450 million in 2011. Moreover, Denver Health’s administrative team has noted that its facility is increasingly faced with caring for complex patients (with multiple co-morbidities) who, in their opinion, had received incomplete care at the transferring facility.(12)

Unfortunately, there is little recourse for tertiary receiving facilities and the risk of termination of CMS funding appears to decrease the appetite for rigorous appeal.(13)

Strategies for Risk Reduction

There are multiple high-risk areas for potential EMTALA violations and these include inadequate screening examinations, lack of documentation of stabilizing treatment, deficient on-call physician behavior, and inappropriate patient transfer. These high-risk areas require hospitals to focus on EMTALA educational programs provided specifically to ED staff, ED physicians and specialists with on-call responsibilites.(7)

Many physicians are deficient in their understanding of EMTALA regulations, even of such basic rules as EMTALA not applying to outpatient settings or individuals who are inpatients.(14-17) Such a lack of knowledge requires that CMOs and others designing EMTALA educational programs not skip over even the most basic regulations.

Also of utmost importance is that care providers understand crucial EMTALA designations, not all of which are easy to interpret. For example, CMS considers as a dedicated emergency department not only those hospital departments or facilities state-licensed as dedicated EDs, but also any hospital departments and facilities that advertise providing treatment for conditions on an urgent basis without an appointment, and those hospital departments or facilities that provided treatment for conditions on an urgent basis (without an appointment) for at least one-third of its visits during the previous calendar year (based upon a representative sample of patient visits).(6,7) By contrast, an independent walk-in clinic not operating under a CMS license is not subject to EMTALA regulations. (See Tag A406 at www.emtala.com/ig.pdf .)

Another example of the complexity of the EMTALA regulations regards arriving patients. The dedicated ED is responsible for screening, stabilizing and transferring (if appropriate) any patient presenting with an emergency medical condition, even if that patient did not present to the ED itself. By EMTALA regulations, the facility is responsible for any patient that is physically on hospital property within 250 yards of the main hospital building.

Moreover, a hospital-owned and -operated ambulance is included in the definition of hospital property. Therefore, a patient is considered on hospital property once he or she has entered the hospital’s ambulance, no matter its physical location. On the other hand, a patient arriving in a nonhospital-owned and -operated ambulance is not considered on hospital property until entering the hospital grounds.(6)

A hospital’s helipad, however, can qualify for an EMTALA exemption if:

• It is being used by an outside agency.

• Transport is being made to a higher level of care.

• The sending hospital has conducted a screening examination, provided stabilizing treatment and completed the appropriate transfer request.

Should the patient deteriorate while on the helipad and the accompanying medical personnel request assistance, then the hospital is obligated to provide another screening exam and stabilizing treatment within its capabilities.

Such nuances illustrate the importance of seeking legal assistance, knowledgeable of EMTALA regulations, when constructing hospital policies and procedures.(6,7)

EMTALA regulations require the dedicated ED to complete, within its capabilities, an appropriate screening exam for each patient, with the definitive endpoint being the determination of whether an emergency medical condition exists. The exam must be performed by qualified medical personnel who have been designated and approved by the hospital emergency department policies and endorsed by the medical executive committee. The personnel do not have to be physicians and, often in smaller facilities, will be a physician assistant, advanced-practice nurse or certified midwife. Should it be determined that an emergency medical condition does not exist, then EMTALA regulations no longer apply. Examples of nonemergency conditions are in-person requests for medical records or for preventive services such as a flu shot.(6,7)

EMTALA’s definition of an emergency includes any medical condition with acute symptoms of sufficient severity that the lack of emergent medical attention reasonably could be expected to place the health of the individual, including that of an unborn child, in jeopardy. Additional qualifications for emergent care are an expectation of serious impairment to bodily functions or any bodily organ or part thereof. For women with contractions, the dedicated ED must have qualified personnel evaluate the patient and document presence or absence of active labor, stability of the mother as well as of the unborn child, and whether emergent transport is needed based on the capacity and capability of the facility.(6,16-19)

Stablizations and Transfers

A hospital must provide necessary stabilizing treatment to patients requiring it. The EMTALA definition of a stabilized patient is very specific and might not corollate with a physician’s interpretation of stabilization. Furthermore, EMTALA ceases to apply once a patient is stable. Stabilization requires, within reasonable probability, that no material deterioration of the condition is likely and that if a transfer is arranged, the patient will not experience harm. In the case of a woman in labor, stabilization of the medical condition has occurred once both the child and the placenta have been delivered. Additionally, both the mother and child must be declared by appropriate medical documentation to be stabilized and, once again, within reasonable probability, that no material deterioration is anticipated.(6,19-20)

The transfer of patients has created significant difficulties for hospitals, resulting in multiple fines. Successful organizations avoid EMTALA citations by developing a rigorous documentation process surrounding a proper screening examination, stabilization before initiating a transfer, or thorough transfer records. Documents must be maintained for five years and include the physician on-call lists and the central log. Moreover, the facility patient assessment process must be consistent, for when a designated reviewer comes to investigate, he or she will pull multiple charts of patients with similar diagnoses.(6,7,17-19)

A patient transfer is reasonable if an institution demonstrates it does not have the capacity (beds) or the capability (specialized services and personnel) to manage the patient safely. If a hospital cannot stabilize a patient, then a transfer to an appropriate facility is allowed if the physician or other qualified medical personnel can certify that the benefits of transfer will outweigh the increased risks. The transferring provider also must document that the receiving hospital has the capacity and capability to initiate the specialized requested services.

Moreover, the transferring facility is responsible for sending copies of the patient’s pertinent medical records and completing the transfer documentation. A unique stipulation under EMTALA regulations is that a receiving hospital is required to report (within 72 hours) any alleged violations, such as a patient presenting with an unstable condition, the “dumping” of a patient without prior approval, or discovering that the transfer was initiated after the sending hospital’s on-call physician refused or failed to appear within a reasonable time to provide stabilizing treatment. Interestingly, a facility is not required to report itself.(6,7,17)

A patient in observation status, often in the ED, remains under EMTALA regulation until either admitted or discharged following stabilizing treatment. Additionally, EMTALA ceases to apply once a screening examination has been performed and it is determined by the physician or other qualified personnel that an emergency medical condition no longer exists. Furthermore, if an emergency condition has been stabilized and the patient will not require further testing or treatment, then the patient may be discharged from the ED and EMTALA will cease for that encounter.(6,7,17)

As stated, the CMO should take an active role in ensuring his/her institution has a robust EMTALA education program. Many larger health care systems decide on internal development versus outsourcing to a recognized vendor. A meeting with legal counsel, the compliance officer and quality improvement officials can determine the best pathway for developing appropriate training.

Many organizations will require an initial face-to-face training for high-risk providers, such as ED and on-call physicians. The requirement for EMTALA training can be encouraged by the medical executive committee as a condition for initial appointment and at two-year reappointment. Various professionals can be chosen to deliver the in-person training, and the CMO should validate any online module for reliability and ease of access.(6,7,17-22)

Conclusion

EMTALA will continue to be a challenge for U.S. hospitals. The rules sometimes are open for debate and the federal court system has not always been consistent in its interpretation of the regulations.(11-13) Hospitals must adopt a proactive strategy and continually educate their ED staffs and on-call providers about the importance of adherence to the regulations and documentation.

There is no perfect system for prevention of EMTALA violations, but focusing on the high-risk areas will decrease the probability of an adverse review process.(1) CMOs can assist their organizations by helping to ensure training programs address identified shortfalls.(19-22)

References

1. Zuabi N, Weiss LD, Langdorf MI. Emergency Medical Treatment and Labor Act (EMTALA) 2002-2015: Review of Office of Inspector General patient dumping settlements. West J Emerg Med. 2016;17(3):245-51.

2. Ruget JP, Ruger TW, Annas GJ. The elusive right to health care under US law. N Engl J Med. 2015;372(26):2558-63.

3. Rosenbaum S. The enduring role of the Emergency Medical Treatment and Active Labor Act. Health Aff. 2013;32(12):2075-81.

4. U.S. Department of Health and Human Services-Office of the Inspector General. Civil Monetary Penalties and Affirmative Exclusions. https://oig.hhs.gov/fraud/enforcement/cmp/cmp-ae.asp . Accessed July 24, 2018.

5. Terp S, Wang B, Raffetto B, et al. Individual physician penalties resulting from violation of Emergency Medical Treatment and Active Labor Act: A review of Office of the Inspector General dumping settlements, 2002-2015. Acad Emerg Med. 2017;24(4):442-6.

6. Centers for Medicare and Medicaid Services. State Operations Manual: Appendix V. https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_v_emerg.pdf . Updated July 16, 2010. Accessed May 30, 2018.

7. Lepper G. 2016 EMTALA Update: A practical look at the impact of EMTALA. https://www.greensfelder.com/media/event/237_Lepper-MHA-EMTALA-2016.pdf . Accessed May 28, 2018.

8. Centers for Medicare and Medicaid Services. EMTALA physician review worksheet. https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107_exhibit_138.pdf . Updated Feb. 20, 2015. Accessed May 25, 2018.

9. McDonnell WM, Gee CA, et al. Does the Emergency Medical Treatment and Labor Act affect emergency department use? J Emerg Med. 2012; 44(1):209-16.

10. Sanders R. The problem with EMTALA. J Orthop Trauma. 2010;24(6): 346.

11. Kao DP, Martin MH, et al. Editor’s Correspondence regarding: Consequences of federal patient transfer regulations: Effects of the 2003 EMTALA revision on a tertiary referral center and evidence of possible misuse. Arch Intern Med. 2012;172(11):891-2.

12. Rosenbaum S, Cartwright-Smith L, et al. Case studies at Denver Health: “patient dumping” in the emergency department despite EMTALA, the law that banned it. Health Aff. 2012;31(8):1749-56.

13. Terp S, Seabury SA, Arora S, et al. Enforcement of the Emergency Medical Treatment and Labor Act, 2005 to 2014. Ann Emerg Med. 2017;69(2): 155-62.

14. Zibulewsky J. Medical staff knowledge of EMTALA at a large, tertiary-care hospital. Am J Emerg Med. 2003;21(1):8-13.

15. McDonnell WM, Roosevelt GE, Bothner JP. Deficits in EMTALA knowledge among pediatric physicians. Pediatr Emerg Care. 2006;22(8):555-61.

16. Menser TL, Radcliff TA, Schuller KA. Implementing a medical screening and referral program for rural emergency departments. J Rural Health. 2015;31(2):126-34.

17. Klove CA. The rules become “reality EMTALA”. https://www.uclahealth.org/compliance/workfiles/PDF2/EMTALA_FINAL.ppt . Accessed June 1, 2018.

18. Gowani ZS, Lee DH. The ethics of institutional transfers: emergency transfers in the context of EMTALA. J Hand Surg Am. 2016;41(6):e147-9.

19. Scott J. Obstetric transport. Obstet Gynecol Clin N Am. 2016;43(4):821-40.

20. Angelini D, Howard E. Obstetric Triage: A systematic review of the past fifteen years (1998-2013). MCN Am J Matern Child Nurs. 2014;39(5): 284-97.

21. Becker TK, Skiba JF, Sozener CB. An educational measure to significantly increase critical knowledge regarding interfacility patient transfers. Prehosp Disaster Med. 2015; 30(3):244-8.

22. Hyman DA, Studdert DM. Emergency Medical Treatment and Labor Act: What every physician should know about the federal antidumping law. Chest. 2015;147(6):1691-6.