3B. Investigating the Wonders of Emergency Room Compliance EMTALA The Essential Details, Hot Issues, Latest Update, - PowerPoint PPT Presentation

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3B. Investigating the Wonders of Emergency Room Compliance EMTALA The Essential Details, Hot Issues, Latest Update,

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Title: 3B. Investigating the Wonders of Emergency Room Compliance EMTALA The Essential Details, Hot Issues, Latest Update,


1
3B. Investigating the Wonders of Emergency Room
ComplianceEMTALAThe Essential Details, Hot
Issues, Latest Update, Illustrations
  • HCCAs 2000 Compliance Institute
  • September 25, 2000
  • Thomas Snyder, Deloitte Touche, LLP
  • (215) 246-2514

2
EMTALA Overview
  • Public Policy Debate
  • Patients Objective Access
  • Providers Collective Fear - Cost Shifting
  • MCOs Objective - Cost Reduction

3
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?

4
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).

5
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

6
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.

7
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 FY99 there were 61 judgments/settlements -
    1,700,000.
  • Other Costs of Enforcement.
  • Plan of correction
  • Legal fees
  • Public perception

8
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

9
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

10
EMTALA Challenge
  • A hospital without an emergency department has a
    patient show up with an emergency medical
    condition. Is the hospital obligated under EMTALA?

11
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
    hospitals 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)

12
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?

13
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.

14
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?

15
MSE EMC
  • Medical Screening Exam (contd)
  • 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.

16
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.

17
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.

18
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 (ID) of the
    abscess. Can the physician discharge the patient
    without doing the ID after making arrangements
    for the patient to be treated by a surgeon that
    afternoon?

19
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
    patients 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.

20
Transfer
  • Transfer - the movement of an individual outside
    a hospitals 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.

21
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?

22
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.

23
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?

24
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.

25
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.

26
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?

27
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

28
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.

29
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?

30
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.

31
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.

32
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?

33
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.

34
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.

35
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.

36
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.

37
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.

38
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 PP manual. None had
    the same required AMA form.

39
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.

40
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 providers 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

41
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.
  • 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.

42
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.

43
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.

44
EMTALA and Managed Care
  • MCOs 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.

45
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.

46
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
    patients payment status.
  • 7. Provide necessary stabilizing treatment for
    emergency medical conditions.

47
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.

48
EMTALA Document Checklist
  • 1. ED Logs and Labor and Delivery (LD) 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 LD) 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

49
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
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