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Illinois Risk Management Services

EMTALA What’s New and What’s Problematic

Illinois Risk Management Services 2

Speaker

Robert A. Bitterman, MD, JD, FACEPPresident, Healthcare & Investment Consulting, Inc.

Moderator

Mary Stankos, RN, MJ, CPHQ, CPPSSenior Director, Risk Management & Claims Supervisor

EMTALA: What’s New &

What’s Problematic

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Presenter

Robert A. Bitterman, MD, JD, FACEP

Life is short, the art long,

opportunity fleeting, experience

treacherous, judgement difficult.

Hippocrates

Objectives

• Learn what’s new

• Identify key problem issues

• Recognize common errors

• Improve compliance & patient care

• Avoid grief and liability

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EMTALA Liability and Grief

• $100,000+ fines - inflation adjustments

• General and EMTALA specific factors

• Aggravating or mitigating factors

• New ‘responsible’ physicians to penalize

• Hospital or physician exclusion from MC

• Civil suits against hospital

What is EMTALA?

• COBRA/OBRA

• ‘Anti-Dumping Law’

• Patient Transfer Act

• Sec. 1867 Social Security Act

• COBRA Sec. 9121

• 42 U.S.C. 1395dd - federal law

Disparate Treatment?

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Core Elements of EMTALA

• Appropriate medical screening exam

• Stabilize or arrange an appropriate transfer of emergency medical conditions

• Accept appropriate transfers

• List on-call physicians

• No delay for economic reasons

How Does EMTALA Apply?

• Federal right to emergency care

• Medicare participating hospitals

• Physicians – voluntary participation on

the hospital’s medical staff

• Limited defined duties

When Does EMTALA Apply?

• Any individual

• Who “comes to the ED”

• Requests examination or treatment for a

medical condition

• Must be screened, stabilized

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When Does EMTALA Not Apply?

• No ‘request’ for MSE

• No EMC identified by the MSE

• Patients whose EMC is stabilized

• Admitted patients (CMS v 6th Cir)

• Scheduled outpatients

Legal Definitions v. Medical Definitions

“The statutory definition renders

irrelevant any medical definition.”

HHS v. Burditt

Definition of ‘Transfer’

• ‘Transfer’ means the movement

(including the discharge) of an individual

away from the facility at the direction of

anyone affiliated with the facility …

unless leave dead or AMA

• ‘Movement’ vs. ‘transfer’ / MC number

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• No material deterioration of the EMC is

likely, within reasonable medical

probability, to result from or occur

during the transfer …

Definition of Stabilized

Definitions

• Extensive legal definitions

• Paradigm change

• Law v. medicine

• Federal law preemption

• Must understand legal implications

• Board of Trustees

• Administration

• Legal, compliance, risk managers

• ED and medical staff leadership

• Nursing staff

• Hospital EMTALA committee

Compliance Checklist

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Adopt & Enforce EMTALA Policy

• ED v. hospital-wide policy

• Hospital duty AND liability

• Draft very carefully!

• ‘Failure to follow own rules’

• Florida AAA case, Scruggs case

• Repeat vital signs in ED or at D/C

• MSE QMP – PA vs. MD

• Chest pain / EKG protocols

• Failure to follow your own rules

Failure to Follow Hospital or ED Policy and Procedure

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Educate Everyone

• New members of the medical staff

• Continuous training for all staff

• DED staff

• On-call physicians

• Physicians who reject transfers

Recent EMTALA Issues

• ACA and EMTALA memo

• ‘Severe pain’ and ‘pain signs’ in the ED

• Civil monetary penalties

• CMS OB MSE issues

• Psychiatric patient issues

• Covid-19 EMTALA waiver

EMTALA & the ACA

• CMS S&C of December 2013

• Conflicting requirements of 3rd party payors

• ED collection practices may violate EMTALA

• Co-payments, down payments, past debts

• Avoid ‘unduly discouraging’ patients and

protect patients from ‘abuse or harassment’

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EMTALA & Severe Pain

• Is ‘severe pain’ an EMC?

• Does failure to treat pain violate EMTALA?

• Statutory definition of EMC …

• CMS makes same error with psych/SA patients

in definition of an EMC and in differentiating

‘stabilization’ v. ‘treatment’

EMC Statutory Definition

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

… serious bad things …

EMTALA & ‘Severe’ Pain

• Any pain is a ‘medical condition’

• Perform usual MSE; no shortcuts

• ‘Medical screening’ is a misnomer

• Scope of exam = ‘whatever it takes’

• EMTALA / Joint Commission require treatment of pain / opioids in the ED?

• Refill pain prescriptions?

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EMTALA & the ‘Pain Score’

• Pain is a symptom – not a VS or an EMC

• Expectations of CMS / Joint Commission

• Higher ‘pain score’ at d/c = unstable?

• Proven failure; abandon and replace with “Was

pain evaluated and addressed?”

EMTALA & ‘Pain Signs’ in ED

• Opioid epidemic

• State actions

• Pain management signs in the ED

• CDC guidelines March 2016

• EMTALA preemption – CMS rulings

• ‘Undue coercion’

Civil Monetary Penalties

• Inflation adjustments … > $100,000 fines

• New ‘factors’ the OIG considers

• General vs. EMTALA specific factors

• ‘Aggravating factors’

• ‘Mitigating factors’

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Civil Monetary Penalties

• OIG redefined ‘responsible physician’;

contrary to statutory definition

• Intent is to hold physicians liable for failure

to accept patients in transfer, even though

only hospitals have a duty to accept transfers

• Fine and/or exclude physician from MC

• Ramifications for accepting hospitals / EDs

‘Responsible Physician’

• Possible solution …

• Physicians ‘advise’ hospital on whether

to accept patient in transfer

• Hospital retains decision-making authority

• Transfer center / procedure

• Who can perform the MSE?

• State nurse practice act issues

• Nursing assessment v. MSE

• OB MSE requires a diagnosis, a differential

diagnosis, and a ‘medical plan of care’?

• CMS v. Tennessee Hospital Association

OB MSE Under EMTALA

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• Labor, true labor, false labor issues

• Does a MSE require a ‘face-to-face’ exam?

• Does CMS have the authority to change

medical standards of care?

OB MSE Under EMTALA

• AnMed Health $1.3M penalty

• Emergency physicians incompetent to do MSE

• On-call psychiatrists must see all ED patients

• Must admit all psychiatric patients?

• ACEP ‘discussions’ with CMS / OIG

• AHA / AFH written complaints to CMS

• CMS 2019 FAQs memo on psychiatric MSEs

Psychiatric Patient Issues

Covid-19 EMTALA Waivers

• CMS ‘blanket waiver’ issued

• Allows ‘redirection’ off-campus for MSE

• Remainder of EMTALA still applies

• On-campus or off-campus testing issues

• CMS Covid-19 and EMTALA guidance

• CMS ‘Frequently Asked Questions’ memo

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What’s Presently Problematic

• Government enforcement – CMS & OIG

• Disregard for statutory definitions

• Failure to follow federal court precedents

• Boarding psychiatric patients in the ED

• Civil litigation against hospitals

• Purpose – identify EMC

• Who gets an MSE?

• Who performs the MSE?

• Where perform the MSE?

• What is an ‘appropriate’ MSE

• Refusal of the MSE

Medical Screening Exam

• Any individual ….

• Minors

• Evidence collection / sexual assault / SANE

• Police blood alcohols

• Detox requests

• Hospital ‘owned & operated’ ambulances

Who Gets a MSE?

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• Statute silent

• CMS regulations require:

• Within scope of state licensure

• Qualified by bylaws or R&R (‘QMP’)

• Credentialed by the medical staff

• Meet requirements of 42 CFR 482.55

• Authorized by hospital board

Who Performs MSE?

• Nurse triage doesn’t count

• Emergency physicians

• Credentialed members of medical staff

• Residents

• Mid-level providers

• No informal appointments

Who Performs ED MSE?

Who Screens Pregnant Women?

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Who Screens Pregnant Women?

• Labor & delivery is DED

• Definition of EMC

• ‘Pregnant with contractions’ v. ‘labor’

• Certification of ‘false labor’ v. no EMC

• Use ACEP algorithm

Who Screens Pregnant Women?

• L&D nurses v. physicians

• QMP v. L&D nurse

• MSE v. nursing assessment

• Mid-level providers – NPs, PAs, Midwives

• Certification of ‘false labor’ v. MSE

• Within scope of state licensure

• Qualified by training & education

• Competency tested and certified

• Credentialed by medical staff

• Individual designation by board

• Satisfies 42 CFR 482.55

OB Nurse QMP Requirements

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Who Screens Patients with Psychiatric Symptoms?

• Psychiatric nurses/ mental health workers

• Crisis intervention team

• Emergency physicians

• Mid-level providers

• On-call psychiatrists

• AnMed Health case

Who Does Psych Screening?

• Must psychiatrists take ED call?

• When must psychiatrist come to the ED?

• When ‘necessary’ or ‘required’ to

screen patient or stabilize an EMC

• Use of MHWs or county crisis teams

• Differentiate stabilization v. treatment

• Statue silent

• Regulations silent

• Interpretation of the federal courts

• Interpretation of CMS and the OIG

What is an ‘Appropriate’ MSE

under EMTALA?

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‘Appropriate’ Screening - Courts

• Process, not adequacy

• Not a medical malpractice standard

• ‘Reasonably calculated’ & uniform

• Condition as perceived by MD

• Testing issues

• Failure to follow own policies

• Adopted court’s process rule in 1998

• Enforces law differently

• Adequacy is the issue

• QIO retrospective ‘objective’ analysis;

essentially a malpractice standard

• Testing issues

‘Appropriate’ Screening - CMS

‘Appropriate’ Screening – Tech

• Telemedicine is the future?

• Tele-doc-in-triage

• Tele MSE

• Tele neurology

• Telepsychiatry – psychiatric screening

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Definition of ‘Emergency Medical Condition’ (EMC)

• Usual medical/surgical emergencies

• Obstetrical special definition

• Psychiatric special definition

EMC Statutory Definition

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

… serious bad things …

EMC Definition – CMS

A medical condition manifesting itself by

acute symptoms of sufficient severity

(including severe pain, psychiatric

disturbances and/or symptoms of

substance abuse) such that the absence of

immediate medical attention could

reasonably be expected to result in

… serious bad things …

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Psychiatric EMC – CMS

• Psych, BH, ETOH, SU = ‘protected class’

• CMS believes the symptoms = an EMC

• ‘Threat to self or others’ / acute psychosis

• Suicidal ideation v. suicidal intent

• Objective standard, not actual knowledge?

• ‘Threshold’ issue

Stabilization of Psych Patients

• Stabilization is the whole ballgame.

• Admission in good faith ends EMTALA.

• Admission to ‘observation’ does not.

• EMC must be ‘resolved’?

• Suicidal patient unstable until not suicidal?

Definition of Inpatient

• Admitted for bed occupancy

• Inpatient hospital services

• Overnight stay expected

• Even if doesn’t happen

• Formally admitted

• Admit to ‘observation’ doesn’t count

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Legal Definition of Stabilized

No material deterioration of the EMC is likely, within reasonable medical probability, to result from or occur during the transfer …

Psychiatric ‘Stabilized’ - CMS

“Psychiatric patients are considered stable

when they are protected and prevented

from injuring or harming him/herself or

others.”

CMS Interpretive Guidelines §489.24(d)(1)(i).

QIO Physician Worksheet

“Note to Physician Reviewer: Terms relating to ‘stabilization’ are specifically defined under EMTALA. These terms DO NOT REFLECT the common usage in the medical profession, but instead focus on the medical risks associated with a particular transfer/discharge.”

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CMS & OIG Enforcement

• “The suicidal patient remains unstable

until no longer suicidal.”

• “The EMC must be resolved before

the patient is stabilized.”

• Ramifications …

CMS EMTALA Guidelines

“The underlying medical condition may

persist, as long as the acute emergency that

caused the individual to seek care in the ED

has been resolved.”

CMS Interpretive Guidelines 489.24(d)(1)(i).

Stabilized v. ‘EMC Resolved’

“EMTALA requires only that a hospital

stabilize an individual’s EMC; it does not

require a hospital to cure the condition.”

Green v Touro Infirmary, 992 F2d 537 (5th Cir.

1993).

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Duty To Stabilize Arises When?

• Hospitals have an EMTALA duty ‘to

stabilize’ patients only when they

‘transfer’ (or discharge) the patient.

• CMS and the OIG believe that EMTALA

controls the care of an emergency patient

boarded in the ED.

Federal Courts – Duty to Stabilize

“There is no duty under EMTALA to provide stabilization treatment to a patient with an EMC who is not transferred.”

“EMTALA mandates stabilization only in the event of a transfer, and does not obligate hospitals to provide stabilization treatment for patients who are not transferred or discharged.”

Boarding Patients in the ED

“Defer not time,Delays have dangerous ends.”

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Boarding Psychiatric Patients

• Who’s responsible?

• Role of emergency physician

• Role of psychiatrist or mental health team

• Role of security / sitters

• Medication issues

• Handoffs / reevaluations; time of transfer

Hospital Scope of Services Issue

• Does EMTALA require all hospitals with only

‘voluntary’ psychiatric inpatient units to also

admit ‘involuntary’ committed patients?

• Must hospital inpatient psych units also admit

‘forensic patients’ or violent patients, even if law

enforcement refuses to provide 24/7 security?

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Psychiatric Patient Transfers

• Can hospitals with inpatient psychiatrist

units transfer psychiatric patients for

economic reasons, such as unfunded

patients to State hospitals or Medicaid /

managed care patients to ‘contracted

hospitals’?

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Economic Transfers

“This amendment [EMTALA] does not prevent

hospitals from making appropriate and safe

transfers of patients for economic reasons.”

Statement of Sen. Durenberger,

131 Congressional Record S13982, Oct. 23, 1985

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Where Can You Transfer?

• CMS requires EDs to transfer psychiatric

patients only to acute care hospitals with an

inpatient psychiatric unit.

• What about freestanding psychiatric crisis

centers, residential treatment programs,

state mental health facilities, holding

centers, or prison psychiatric wards?

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‘Appropriate’ Transfer

• Stabilize within capability

• Secure accepting facility; and physician?

• Send medical data

• Transfer by QMP and equipment

• Obtain patient’s consent?

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EMTALA Transfer Form

• Legal document – use to advantage

• Stable vs. unstable patients

• Certification of ‘risks & benefits’

• Signature, date, and time

• VS & reassessment at time of transfer

• Physician’s role v. role of midlevel

Accepting Psychiatric Transfers

• Must MC participating psychiatric hospitals

accept patients in transfer from EDs in

hospitals without inpatient psychiatric

services, regardless of whether the patient is

stable or unstable as defined by law?

• See case of St. Anthony Hospital v. OIG

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EMTALA Litigation

‘There is no better way of exercising the

imagination than the study of law. No poet

ever interpreted nature as freely as a

lawyer interprets truth.’

Jean Girandoux

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EMTALA Civil Litigation

• Hospitals, not physicians

• Court’s mantra that ‘EMTALA is not a federal malpractice act’ is a myth.

• Statutory liability

• Failure to follow your own rules – P&P

• Circumvent state tort reforms

• Confusion still exists & confusion = risk

• Written P&P create risk

• Economic issues create risk

• CMS interpretations create risk

• Psychiatric patients are very high risk

• Lack of on-call services also increases risk

Conclusions

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• Acknowledge EMTALA’s reach

• Hospital/medical staff cooperation

• Draft P&P and privileges carefully

• Documentation critical

• Education, education, education

EMTALA Compliance

Thank You

Robert A. Bitterman, MD JD FACEP

robertbitterman@gmail.com

Questions?

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‘Responsible Physician’

• … means a physician who is responsible for

the examination, treatment, or transfer of an

individual in a participating hospital,

including a physician on-call for the care of

such an individual. 42 USC 1395dd(d)(1)(B).

• Written before section (g) amendment