Illinois College of Emergency Physicians On Our Watch Preparing for Overcrowding and Bioterrorism in the Emergency Department EMTALA: An Everyday Violation

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Illinois College of Emergency PhysiciansOn Our
WatchPreparing for Overcrowding and Bioterrorism
in the Emergency DepartmentEMTALA An Everyday
Violation

• January 10, 2003
• Presented ByMichael R. CallahanKatten Muchin
  Zavis Rosenman525 West Monroe StreetChicago, IL
  60661312.902.5634

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Introduction

• Hospitals participating in the Medicare program
  must comply with the obligations set forth in the
  Emergency Medical Treatment and Active Labor Act
  (EMTALA).
• Congress passed EMTALA as part of the
  Consolidated Omnibus Budget Reconciliation Act of
  1986.
• Briefly, EMTALA requires the hospital
  participating in the Medicare program to provide
  a medical screening examination to all persons
  who present at the hospital, regardless of the
  persons ability to pay for treatment or
  services. If the patient has an emergency
  medical condition, the hospital must either treat
  the patient or stabilize the patient and transfer
  the patient to another facility.

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EMTALA The Legal ObligationThe Statute and
Regulations

• 42 U.S.C. 1395dd
• 42 C.F.R. 489.24
• See also State Operations Manual Provider
  Certification
• Investigation Procedures
• Interpretative Guidelines

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EMTALA The Legal ObligationThe Statute and
Regulations

• Step 1 Medical Screening Examination
• In the case of a hospital that has a hospital
  emergency department, if any individual (whether
  or not eligible for benefits under the Medicare
  program) comes to the emergency department and a
  request is made on the individuals behalf for
  examination or treatment for a medical condition,
  the hospital must provide for an appropriate
  medical screening examination within the
  capability of the hospitals emergency
  department, including ancillary services
  routinely available to the emergency department,
  to determine whether or not an emergency medical
  condition exists.

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EMTALA The Legal ObligationThe Statute and
Regulations

• Step 2 Emergency Medical Condition
• If the medical screening examination reveals that
  an emergency medical condition does exist, the
  hospital must either
• treat the patient in order to stabilize the
  medical condition or
• stabilize the patient in order to transfer the
  patient to another medical facility

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EMTALA The Legal ObligationKey
Components/Definitions

• Comes to the Emergency Department
• means that the individual is on hospital property
• hospital property is defined to include
  ambulances owned and operated by the hospital
  (even if the ambulance is not on hospital
  property) nonhospital owned ambulances on
  hospital property
• In July of 1998, the Health Care Financing
  Administration (HCFA) revised its interpretive
  guidelines for EMTALA (Revised Guidelines).
  Among other revisions, HCFA clarified that
  EMTALA obligations apply to all hospital-owned
  facilities, including off-campus and
  non-contiguous facilities, which are operated
  under the hospitals Medicare provider number.

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EMTALA The Legal ObligationKey
Components/Definitions

• On May 9, 2002, HHS proposed major changes to
  EMTALA, including a clarification to the
  definition of comes to the emergency department
• Proposed rule now refers to the hospitals
  dedicated emergency department which is a
  specially equipped and staffed area of hospital
  used a significant portion of the time for
  emergency medical conditions and is located
• on main hospital campus or
• off main campus but treated by Medicare as a
  department of hospital
• Patient or individual on behalf of patient
  requests examination or treatment or a prudent
  layperson observer would believe an examination
  or treatment is needed

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EMTALA The Legal ObligationKey
Components/Definitions

• Presents on hospital property, other than
  dedicated emergency department, and requests
  services or there is a reasonable belief of need
• Hospital property means entire hospital campus,
  parking lot, sidewalk and driveway but excludes
  areas and structures within 250 yards of main
  building not part of hospital such as physician
  offices, rural health center, skilled nursing
  facilities, restaurants, shops or other
  non-medical facilities
• Would also include other departments on the
  hospital that provide emergency services, such as
  labor, delivery and psych, or departments that
  hold themselves out as providing such services on
  an urgent and unscheduled basis

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EMTALA The Legal ObligationKey
Components/Definitions

• If patient presents but request and condition
  make it clear that there is no emergency, scope
  of screening is only that which is necessary to
  determine whether patient does or does not have
  an emergency medical condition
• EMTALA triggered if patient presents to hospital
  at a site other than the dedicated emergency room
  or other similar department but requests or needs
  emergency services
• Outpatients who come for treatment but later
  manifest an emergency medical condition are not
  considered to have come to the hospital for
  EMTALA purposes but need be treated consistent
  with Medicare Conditions of Participation

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EMTALA The Legal ObligationKey
Components/Definitions

• EMTALA would apply to inpatients only if never
  considered stabilized. If stabilized, it does
  not but other requirements such as Medicare
  Conditions of Participation may apply. Proposed
  rule states that EMTALA does not apply would
  apply either to an inpatient who was not admitted
  in an emergent condition or one who was but was
  later stabilized
• No EMTALA requirements if a patient presents to
  an off campus but provider based entity or
  department which does not routinely provide
  emergency care. Should provide whatever
  assistance it can and contact EMS personnel.
  Hospital needs to develop appropriate policies to
  define its procedures for this situation
• EMTALA would not apply to hospital based
  entities, such as a rural health clinic, as
  opposed to a department that is on the hospital
  campus

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EMTALA The Legal ObligationKey
Components/Definitions

• Stabilization
• With respect to an emergency medical condition,
  stabilized means
• no material deterioration of the condition is
  likely, within reasonable medical probability, to
  result from the transfer.
• In the Revised Guidelines, HCFA clarified that
• a patient will be deemed stabilized if the
  treating physician attending to the patient has
  determined, within reasonable clinical
  confidence, that the emergency medical condition
  has been resolved.

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EMTALA The Legal ObligationKey
Components/Definitions

• Stabilization (Continued)
• for patients whose emergency medical condition
  has not been resolved, a determination of whether
  the patient is stable may occur in one of two
  circumstances
• stable for transfer occurs when the attending
  physician determines, within reasonable clinical
  confidence, that the patient is expected to leave
  the hospital and be received at the second
  hospital with no material deterioration in
  his/her medical condition and the treating
  physician believes the receiving facility has the
  capability to manage the patients medical
  condition.
• stable for discharge occurs when, within
  reasonable clinical confidence, it is determined
  that the patient has reached the point where
  his/her care could be reasonably performed as an
  outpatient or later as an inpatient, provided the
  patient is given a plan for appropriate follow-up
  care with discharge instructions.

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EMTALA The Legal ObligationKey
Components/Definitions

• Medical Screening Examination
• A medical screening examination is the process
  required to determine, with reasonable clinical
  confidence, whether an emergency medical
  condition exists.
• Triage is not equivalent to a medical screening
  examination.
• Depending on the patients symptoms, a medical
  screening examination can be a simple process
  (brief history and physical examination) or a
  complex procedure involving various ancillary
  services.
• A medical screening examination need not be
  performed by a physician.
• A medical screening examination is not an
  isolated event. The record must reflect
  continued monitoring of the patients condition
  until he/she is stabilized or appropriately
  transferred. There should be evidence of the
  evaluation prior to discharge.

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EMTALA The Legal ObligationKey
Components/Definitions

• Emergency Medical Condition
• For purposes of EMTALA, an emergency medical
  condition means a medical condition manifesting
  itself by acute systems of sufficient severity
  such that absence of immediate medical condition
  could reasonably be expected to result in
• placing the health of the individual in serious
  jeopardy
• serious impairment
• serious dysfunction or
• in regard to a pregnant woman, there is
  inadequate time to effectuate a safe transfer
  before delivery or the transfer may threaten the
  health or safety of the woman or unborn child.

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EMTALA The Legal ObligationAdditional
Considerations

• Signage
• Under EMTALA, a hospital is required to post
  signage, in a conspicuous place and in language
  clearly understandable by the population served
  by the hospital, specifying the rights of
  individuals with emergency conditions and women
  in labor.
• Signage must indicate whether the facility
  participates in the Medicaid program.

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EMTALA The Legal ObligationAdditional
Considerations

• On-Call List
• Hospitals must have an on-call list of physicians
  available to stabilize individuals with emergency
  medical conditions.
• If a hospital offers a service to the public, the
  service should be available through on-call
  coverage to the emergency department.
• Proposed rule would provide that physician,
  including specialists and subspecialists do not
  have to be on call at all times. Hospital needs
  to develop policies to respond to situations
  where specialty coverage is not available on the
  on-call physician cannot respond for reasons
  beyond their control.

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EMTALA The Legal ObligationAdditional
Considerations

• June 13, 2002 DHHS Program Memorandum regarding
  EMTALA on-call requirements makes the following
  points
• In addition to proposed rule discussed above,
  guidance states that where hospital lacks
  capacity to treat a patient, transfer consistent
  with EMTALA requirements is appropriate
• Where there is limited physician availability and
  hospital resources, CMS allows hospitals
  flexibility to comply with EMTALA obligations by
  maintaining a level of on-call coverage that is
  within their capability. There is no set
  requirement on how often physicians are required
  to be on-call. Key is to document
• Allowing the hospital and medical staff the
  flexibility to exempt certain physicians based,
  for example on age or years of service, is
  acceptable as long as it does not affect patient
  care adversely.

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EMTALA The Legal ObligationAdditional
Considerations

• Although there are no set ratios relating to the
  number of physicians required to provide 24/7
  coverage in any specialty, CMS will look to
  various factors such as numbers of physicians,
  demands on these physicians and for emergency
  services and alternative coverage or transfer
  arrangements when determining whether EMTALA
  coverage obligations have been met made by the
  hospital
• In response to a question as to whether hospitals
  in the same community can share on-call coverage
  so that there is 100 coverage in one or more
  specialties, CMS essentially stated that this
  option was available but emphasized the need to
  adopt appropriate policies, procedures and bylaws
  defining these responsibilities and options,
  particularly if circumstances do not permit
  either hospital to provide needed coverages on
  its own
• Call schedules must list physician by their
  individual names. Naming a specific physician
  group is not permitted

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EMTALA The Legal ObligationAdditional
Considerations

• CMS, while recognizing that hospital may have
  particular problems with availability of on-call
  physicians, raised concerns over a policy which
  would permit an on-call physician to schedule an
  elective procedure at the same time
• Physicians can be on call simultaneously at more
  than one hospital consistent with standards
  discussed above

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EMTALA The Legal ObligationAdditional
Considerations

• Central Log
• Hospitals must maintain a central log to track
  care provided to individuals who come to the
  hospital seeking care for an emergency medical
  condition.
• Multiple logs are permitted (i.e., logs from
  different departments).

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EMTALA The Legal ObligationAdditional
Considerations

• Managed Care Enrollees
• See Notice of Proposed Special Advisory Bulletin,
  63 Fed. Reg. 67486 (Dec. 7, 1998).
• It is not appropriate for a hospital to request
  or a health plan to require prior authorization
  before the patient has received a medical
  screening examination.

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EMTALA The Legal ObligationAdditional
Considerations

• Continued Obligation?
• Do transfer/discharge obligations survive for so
  long as patient has an EMC? See Roberts v. Galen
  of Virginia, Inc., 119 S. Ct. 685 (1999). But
  see comments on proposed rule.
• Once an emergency medical condition has been
  determined not to exist or the emergency medical
  condition is stabilized, prior authorization for
  further services may be sought.
• Regardless of whether a hospital will be paid by
  the managed care payor, it is obligated to
  provide the services required by EMTALA.

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EMTALA The Legal ObligationAdditional
Considerations

• Continued Obligation? (Continued)
• Notwithstanding the foregoing, a hospital may
  continue to follow a reasonable registration
  process for emergency room patients, including
  requesting insurance information, so long as
  those procedures do not delay the provision of
  necessary treatment and so long as those
  procedures are applied equally to all patients.
• In St. Anthony Hospital v. DHHS, a hospital was
  found liable under EMTALA for refusing to accept
  a patent transfer because it had specialized
  capabilities or facilities not otherwise
  available at the transferring hospital.

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EMTALA The Legal ObligationEnforcement

• HCFA
• Surveys and investigations through state survey
  agencies.
• Common violations of EMTALA include failure to
  screen inappropriate transfer of an unstable
  patient lack of notices failure to maintain a
  central log failure to adhere to hospital
  policies and procedures (e.g., who is qualified
  to perform MSE, on-call obligations.
• Statement of Deficiencies
• Plan of Correction
• Notice of Termination
• Fast Track (23 days)
• Non immediate jeopardy cases (90 days)

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EMTALA The Legal ObligationEnforcement

• OIG
• Investigation by PRO
• Recommendation to OIG
• Civil money penalties
• Up to 50,000 (or not more than 25,000 in case
  of a hospital with less than 100 beds). Note
  No showing of improper motive is required. See
  Roberts v. Galen of Virginia, Inc., 119 S. Ct.
  685 (1999).
• May also be asserted against physicians
• Civil actions may also be brought by individuals
  and medical facilities against offending hospital
  (but not physician or physician group).

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Governmental or Accrediting Body Pronouncements
Affecting Issues of Overcrowding, Bioterrorism or
Other Similar Disasters

• CMS
• November 29, 2001 Guidance on EMTALA and hospital
  capacity
• Recipient hospital generally required to accept
  transfer of a patient in need of available
  specialized capabilities and where it has
  capacity to receive and transferring hospital
  does not have the capability or capacity. See
  St. Anthony Hospital.
• The capacity to render care is not reflected
  simply by the number of persons occupying a
  specialized unit, the number of staff on duty, or
  the amount of equipment on the hospitals
  premises. Capacity includes whatever a hospital
  customarily does to accommodate patients in
  excess of its occupancy limits (489.24(b)). If
  a hospital has customarily accommodated patients
  in excess of its occupancy limits by whatever
  means (e.g., moving patients to other units,
  calling in additional staff, borrowing equipment
  from other facilities) it has, in fact,
  demonstrated their ability to provide services to
  patients in excess of its occupancy limits.

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Governmental or Accrediting Body Pronouncements
Affecting Issues of Overcrowding, Bioterrorism or
Other Similar Disasters

• November 8, 2001 Question and Answer to
  Bioterrorism and EMTALA
• EMTALA applies and therefore stabilizing
  treatment must be provided within the hospitals
  capability and capacity and/or within the
  provisions of a community response plan developed
  by a state or local government. For example, if
  a patient presented at a hospital which was not
  designated to treat victims of bioterrorism as
  part of a state or local community plan, transfer
  to a designated facility after first determining
  that the patient fits this description without
  performing a screening would not be treated as an
  EMTALA violation

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Governmental or Accrediting Body Pronouncements
Affecting Issues of Overcrowding, Bioterrorism or
Other Similar Disasters

• JCAHO
• EC.1.4
• The organization has an emergency management
  plan.
• If the organization determined that it will grant
  emergency privileges during a disaster, then the
  requirements of MS.5.14.1 should be followed.
• MS.5.14.1
• Emergency privileges may be granted when the
  emergency management plan has been activated and
  the organization is unable to handle immediate
  patient needs.

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Governmental or Accrediting Body Pronouncements
Affecting Issues of Overcrowding, Bioterrorism or
Other Similar Disasters

• EC.2.8
• Personnel have been oriented to and educated
  about the environment and possess the knowledge
  and skills to perform their responsibilities in
  the environment
• Hospital staff participating in the emergency
  management plan among other things, must be able
  to describe or demonstrate a multitude of tasks
  and responsibilities involving drills, emergency
  equipment management, utility systems and
  communications systems
• EC.2.9
• The hospital conducts emergency drills regularly
• EC.2.9.1
• Drills are conducted regularly to test emergency
  management

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Governmental or Accrediting Body Pronouncements
Affecting Issues of Overcrowding, Bioterrorism or
Other Similar Disasters

• The response phase of the emergency management
  plan is tested twice a year, either in response
  to an actual emergency or in planned drills.
  Drills are conducted at least four months apart
  and no more than eight months apart.
• Testing includes
• For organizations that offer emergency services
  or are designated as disaster receiving stations,
  at least one drill yearly that includes an influx
  of volunteer or simulated patients.
• Participation in at least one community-wide
  practice drill yearly (where applicable) relevant
  to the priority emergencies identified by the
  organizations hazard vulnerability analysis,
  that assesses communication, coordination, and
  the effectiveness of the organizations and
  communitys command structures.

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Governmental or Accrediting Body Pronouncements
Affecting Issues of Overcrowding, Bioterrorism or
Other Similar Disasters

• Notes 1. Tests of a and b may be separate,
  simultaneous, or combined. 2. Drills
  that involve packages of information
  that simulate patients, their families, and
  visitors are acceptable. 3. Tabletop
  exercises, though useful in planning
  or training, are not acceptable substitutes
  for test a. 4. Staff in each freestanding
  building classified as a business occupancy,
  as defined by the Life Safety Code, that do
  not offer emergency services nor
  are designated as disaster receiving
  stations need only participate in one
  emergency preparedness drill annually.
  Staff in areas of the building that
  the organization occupies must participate
  in such drills. 5. In test b,
  community-wide may range from a contiguous
  geographic area served by the same health
  care providers, to a large borough, town,
  city, or region.