Friday, June 19, 2009

COBRA Laws and EMTALA

Introduction

The Emergency Medical Treatment and Active Labor Act (EMTALA) was created out of concern that patients were being denied emergency medical treatment because of their inability to pay. The initial intent of EMTALA was to address the allegation that some hospitals were transferring, discharging, or refusing to treat patients who did not have insurance. EMTALA was signed into law in 1986, as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). The Centers for Medicare and Medicaid (CMS) issued revisions to EMTALA in 2003, which can be found in the Federal Register on September 9, 2003.

EMTALA contains 2 basic requirements:

  1. For any person who comes to a hospital emergency department, "the hospital must provide for an appropriate medical screening examination . . . to determine whether or not an emergency medical condition exists" (see 42 USC § 1395dd[a]).1
  2. If the screening examination reveals an emergency medical condition, the hospital must "stabilize the medical condition" before transferring or discharging the patient.

The definitions of "medical screening exam" and "emergency medical condition" are discussed in more detail later in this article.

The authority supporting the statute is the taxing and spending clause of the Constitution. In essence, Congress has the right to demand certain services from vendors receiving federal tax dollars. In the EMTALA statute, obligations are tied to hospitals' participation in Medicare. A hospital could relieve itself entirely of EMTALA obligations by dropping out of the Medicare program; however, Medicare is a major funding source for most nonfederally run hospitals.

EMTALA compliance is regulated by the CMS, a division of the Department of Health and Human Services (HHS). There are significant financial consequences for violating EMTALA rules. A hospital and/or the responsible physician may face individual fines imposed by the government as well as civil damages claims. Additionally, the hospital can be excluded from participating in the Medicare program, which may be financially devastating. It is imperative that ED physicians be fully aware of their obligations under EMTALA regulations.

EMTALA Obligations

EMTALA outlines specific obligations for the referring hospital, the treating or transferring physician, and the receiving physician and hospital. The main points are as follows:

Medical screening exam

  • Any person requesting emergency services, who presents to a facility that provides emergency services, must receive a medical screening exam (MSE). The purpose of the MSE is to identify whether an emergency medical condition (EMC) exists.
  • This request can come from the patient, someone accompanying the patient, a law enforcement officer bringing someone to the ED, or someone walking into the ED requesting a blood pressure check.
  • If the MSE reveals an emergency medical condition, it is the obligation of the treating hospital to stabilize the patient prior to discharge or transfer.

Persons covered by the "250-yard rule"

  • In addition to persons who come to the ED requesting treatment, EMTALA rules also apply to any person who presents on the hospital campus and requests or requires emergency services. Known as the "250-yard rule," the hospital campus is defined below2 :
    • 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 buildings but are located within 250 yards of the main buildings, and any other areas determined on an individual case basis by the HCFA regional office, to be part of the provider's campus" (42 CFR 413.65).
    • The "250-yard rule" obligates hospital staff to recognize when a visitor, another employee, or anyone on the hospital campus, is in need of a medical screening examination. This includes, "Anyone whom a layperson would believe, based on the individual's appearance and behavior, that the individual needs examination or treatment."
    • Campus typically includes the parking lot, sidewalks, driveways, and inpatient and outpatient areas.
    • The campus does not include nonmedical businesses such as retail business, private physicians' offices, or other medical entities that have a separate Medicare identity.

Patient transfer

  • The treating physician may transfer the patient in the following scenarios:
    • The emergency medical condition has been stabilized and the patient requires a higher level of care.
    • The emergency medical condition has not been stabilized, but the treating physician certifies that the benefit of transfer outweighs the risk.
    • The patient or health care proxy requests transfer regardless of whether the emergency medical condition has been stabilized.
    • The on-call physician fails or refuses to appear within a reasonable period of time, and without the services of the on-call physician, the benefit of transfer outweighs the risk.
  • When transferring, the treating physician must document the name of the accepting individual and facility. The treating physician must also send pertinent documents, imaging studies, and test results relating to the emergency condition to the receiving facility.
  • The receiving hospital must accept the transfer as long as they have the capacity and space to do so. It is the obligation of the receiving hospital or physician to report any transfer received in violation of EMTALA. The receiving hospital may be penalized for failure to report an EMTALA violation.
  • The transferring hospital must provide all medical treatment within its capacity, which minimizes the risk to the individual's health. Qualified personnel, with the appropriate medical equipment, must accompany the patient during transfer.

On-call physician duty

  • Hospitals must maintain an on-call list of physicians "in a manner that best meets the needs of the hospital's patients." Note that there is no requirement under EMTALA for full-time, on-call coverage by all specialties. However, the hospital is required to adopt a plan of action for situations where the needed on-call specialist is unavailable.
  • On-call physicians may be on call for multiple hospitals simultaneously and may schedule elective procedures during on-call hours.
  • On-call physicians are required to respond in a reasonable time period to assist in the stabilization of a patient with an emergency medical condition.
  • The ED physician's judgment should be deferred to by the specialist in situations where the ED physician requests the presence of the specialist, but the specialist does not believe that his presence is necessary.

EMTALA obligations are fulfilled when:

  • An appropriate MSE identifies no emergency medical condition.
  • The patient refuses to consent to treatment offered or refuses to consent to transfer offered.
  • The emergency medical condition is stabilized.
  • A patient with an EMC is stabilized, admitted, and develops a new EMC.
  • EMTALA obligations do not apply when an individual who is on the hospital campus for outpatient, nonemergency services develops an emergency medical condition after beginning the outpatient treatment (these situations are covered under CMS's "Conditions of Participation" rules).

Enforcement

EMTALA legislation is enforced by CMS. A hospital that has more than 100 beds may be fined up to $50,000 per violation, and a hospital with fewer than 100 beds may be fined up to $25,000 per violation. Individual physicians may be fined as well, including on-call physicians who fail to appear. On-call physicians who request that an unstable patient be transferred when the risk of transfer outweighs the benefit may also be fined. Ultimately, a hospital may have its Medicare provider agreement revoked in response to EMTALA violation.

Patients Covered Under EMTALA

EMTALA regulations apply to all hospitals that participate in the federal Medicare program and apply to all patients (not just Medicare beneficiaries). Federal and military hospitals do not receive funds from Medicare and are thereby excluded from EMTALA; however, most abide by the regulations. EMATLA rules protect "any individual who comes to the Emergency Department" as well as those covered by the "250-yard rule." EMTALA defines an "Emergency Department" as follows:

  • Licensed by the state as an emergency department (this applies to states that license ED's separately from hospitals), or
  • Held out to the public as an emergency department or urgent care center, or
  • Have provided at least 1/3 of its visits on an urgent basis without requiring a previously scheduled appointment in the previous year

Once a patient is inside an ambulance, the ambulance may be diverted en route without violating EMTALA, since the patient has not physically "come to the Emergency Department." If the ambulance is owned by the hospital, yet is being utilized as part of the community EMS system, then those patients are not covered by EMTALA as long as the ambulance is being directed by EMS and not the hospital that owns it.

Medical Screening Examination

The term medical screening examination (MSE) may lead physicians to misinterpret their responsibilities under EMTALA. It is important to understand that the MSE is not equivalent to a triage assessment. The definition of the MSE is "an evaluation reasonably calculated to identify emergency medical conditions suggested by presenting signs and symptoms." By definition, this evaluation may require the use of any diagnostic aids and/or specialty consultations normally available in the ED. For example, a patient presenting with chest pain, dyspnea, and diaphoresis may require an ECG, chest radiograph, and cardiac enzyme levels as part of the medical screening examination.

The MSE must be performed by a qualified medical provider (QMP). Although the statute does not preclude a nurse or mid-level provider from performing the MSE, compliance generally is ensured if a physician evaluates the patient. In the case of a nurse or mid-level provider, the QMP must have a job description for this role, qualifications and competencies must be established, and a formal designation for approved individuals must be in their personnel file.

Emergency Medical Condition

Emergency medical condition is defined as the following:

"A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual in serious jeopardy, or serious impairment to any bodily functions or serious dysfunction of any bodily part or organ."

The physician and hospital do not violate EMTALA by failing to treat an unidentified emergency medical condition despite a good faith evaluation. For example, assuming an appropriate evaluation was provided, no EMTALA violation will be found if an emergency physician discharges a patient with an acute pulmonary embolism after erroneously concluding the patient's symptoms were attributable to costochondritis. Once a physician diagnoses the patient's condition, however, appropriate treatment must be provided if the patient's health is at risk.

Emergency medical conditions also include psychiatric emergencies (substance abuse, withdrawal syndromes). These patients must receive a medical screening examination calculated to identify underlying medical problems causing or contributing to their psychiatric condition.

Stabilization

Stabilization is defined as the treatment of the emergency medical condition to reasonably ensure that no deterioration would result from the patient's transfer or discharge. An EMTALA violation is not automatically found simply because a patient's condition deteriorated following discharge or transfer from the ED. Rather, the reviewing body (either the local peer review organization or a court) examines the facts known to the emergency physician at the time of the stability determination.

Unfortunately, no clear formula exists, in either the legal profession or the medical profession, to determine whether a patient's condition can be considered stable. For example, emergency physicians may disagree on whether a patient with a diagnosis of new-onset angina is stable enough for transfer, even though vital signs are normal and no ongoing chest pain is present. The intent of the legislation is to promote cautious and conservative judgments before patient transfer or discharge.

EMTALA requires that a patient be stabilized within the hospital's "capabilities." This becomes especially relevant in the case of an adult visitor who develops an emergency medical condition while in a pediatric hospital. In this situation, the pediatric ED staff would be required to attempt stabilization of the adult patient to the best of their capabilities and not simply call EMS and wait for their arrival. In the case of an adult who develops chest pain, this may include establishing intravenous access and providing supplemental oxygen therapy.

Transfers

Once a patient's emergency medical condition has been stabilized, the patient may be transferred to receive a higher level of care at another hospital. A patient with an incompletely stabilized emergency medical condition may still be transferred without violating EMTALA rules under any one of the following circumstances:

  • The patient, while understanding the risks and benefits of transfer, provides a written request for transfer despite being informed of the hospital's EMTALA obligations to provide treatment.
  • The treating physician certifies that the benefits of transfer outweigh the risks.
  • The on-call physician fails or refuses to appear within a reasonable period of time and without the services of the on-call physician the benefit of transfer outweighs the risk.

Additionally, a patient with an emergency medical condition may be discharged with a plan to have subsequent treatment provided as an outpatient if such a plan is consistent with medical routine and does not jeopardize the patient's health. For example, a closed supracondylar fracture may be "stabilized" in the ED by providing an examination, splinting, and pain control and by arranging for subsequent outpatient surgical repair.

Women in Labor

As defined previously, EMTALA stands for the "Emergency Medical Treatment and Labor Act." Although EMTALA principles apply similarly to emergency medicine patients and women in labor, the definitions of "emergency medical condition" and "stabilization" are more clearly defined. The definitions below apply to women in labor.

  • All laboring patients are considered unstable and are thereby deemed to have an emergency medical condition.
  • Stabilization may be achieved an any one of the following 3 ways:
    • The physician declares the labor to be false.
    • Labor ceases.
    • The infant and placenta are delivered.
  • Transfer rules apply equally to women in labor. Therefore, a women in labor who has not been stabilized (achieved delivery of infant and placenta) may be transferred if the benefits of transfer outweigh the risks.

EMTALA Special Circumstances

EMTALA waivers

Sanctions for noncompliance with EMTALA rules may be waived under certain special circumstances such as severe storms or disease pandemics. A temporary EMTALA waiver is issued by the Secretary of the US Department of Health and Human Services (HHS) under section 1135 of the Social Security Act. Interestingly, the HHS Secretary may also waive The Health Insurance Portability and Accountability Act (HIPPA) under section 1135(b) of the Social Security Act. This waiver is designed to allow an ED, affected directly by a declared disaster, to maximize its delivery of care to the greatest number of people.3

An ED operating under an EMTALA waiver may be protected against sanctions stemming from lack of medical screening examination or transferring an unstable patient. However, if the ED withholds treatment or transfers a patient due to his inability to pay, they will receive sanctions regardless of the temporary waiver. Examples of recent EMTALA waivers occurred during the following disasters: Hurricane Katrina, New Orleans (2005); Hurricane Dean, Texas (2007); Indiana and Iowa Storms (2008).

Blood alcohol testing

In many states, law enforcement officers may bring patients to the ED and request blood alcohol testing. This is not technically viewed as requiring an MSE; however, if the patient requests an MSE, or the staff becomes aware of information suggesting that an MSE is appropriate, then EMTALA obligations must be met.

Sexual assault nurse examiner cases

Many ED's employ sexual assault nurse examiners (SANE) to identify injuries and collect forensic evidence for patients who present with a chief complaint of sexual assault. It must be remembered that these patients are also covered under EMTALA, and the SANE examiner must offer the patient an MSE.

Summary

EMTALA was enacted as a remedial statute intended to remove economic considerations from important medical decisions in the ED. Since the inception of EMTALA, most legal cases brought about by this legislation have dealt with insured patients rather than the uninsured patients EMTALA was designed to protect. Despite the high number of EMTALA violations cited since its inception, studies have shown wide gaps in EMTALA understanding among both ED and on-call physicians. It is incumbent upon us, as emergency physicians to familiarize ourselves with and abide by, the EMTALA regulations or face the aforementioned penalties.

Keywords

COBRA, EMTALA, anti-dumping, emergency, active labor, COBRA laws, Consolidated Omnibus Budget Reconciliation Act, COBRA, Emergency Medical Treatment and Active Labor Act, patient anti-dumping law, section 1867(a) of the Social Security Act, CMS, Centers for Medicare and Medicaid Services, Health Care Financing Administration, HCFA, paying for emergency medical treatment, patients with no insurance, medical treatment, transfer of patients, transferring patients

References

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  2. Code of Federal Regulations. Revised as of October 1, 2002. From the U.S. Government Printing Office via GPO Access. 42CFR413.65. [Full Text].

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Source : http://emedicine.medscape.com/article/790053-overview?src=emed_whatnew_nl_0#EMTALA
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