Emergency Medical Treatment and Labor Act (EMTALA) “New and Improved…plus stuff that’s not true.” David Wright Centers for Medicare and Medicaid Services (CMS) Dallas Regional Office

Civil Liability versus Administrative Enforcement Two Year statute of Limitations on Civil Cases alleging EMTALA Violation CMS not involved, complainant not required to file complaint or have substantiated violation

EMTALA-Related Requirements EMTALA Compliance Plan Reporting Requirement Signage Medical Records Requirement On-Call Physician List Central Log

Reporting Requirement Report to CMS or the state any time you have reason to believe the hospital received an individual who has been transferred in an unstable emergency medical condition from another hospital, in violation of the transfer requirements (489.24(d)).

Signage It’s the law! If you have a Medical Emergency or are in labor, you have the right to receive, within the capabilities and capacity of this hospital’s staff and facilities: An Appropriate medical screening examination. Necessary stabilizing treatment (including treatment for an unborn child) and, if necessary, an appropriate transfer to another facility. Even if you cannot pay or do not have medical insurance or you are not entitled to Medicare or Medicaid. This hospital does / does not participate in Medicaid.

Medical Records Retention The hospital must maintain medical and other records related to individuals transferred to or from the hospital for a period of five years from the date of the transfer.

On-Call Physicians Ensure ED is prospectively aware of which physicians, including specialists and sub-specialists are available to provide treatment necessary to stabilize individuals with emergency medical conditions. Hospital must determine and enforce response times. Physician must come in, cannot refer patient with emergency medical condition to private physician’s office.

On-Call Continued Hospital Discretion, Simultaneous call, Elective Surgery Still must provide for emergency services if physician unavailable due to elective surgery or simultaneous call If on-call chooses to send non-physician practitioner, treating physician may still request on-call present in person.

Central Log To track the care provided to each individual who comes to the hospital seeking care for an emergency medical condition, including whether the individual refused treatment, was refused treatment, admitted, treated, stabilized, transferred or discharged.

EMTALA Requirements Screening Stabilizing Treatment Delay in examination or treatment Appropriate Transfer Recipient Hospital Responsibilities

Screening Determine presence/absence of emergency medical condition. Performed by Qualified Medical Personnel. EMTALA applies until patient stabilized or determination that there is no emergency medical condition.

Screening Cont’d Present to Dedicated ED (Licensed, Held Out, 1/3 Presentations-calendar year) Request for Medical Treatment only. Everyone must be screened. Non-Dedicated ED-Request for Emergency Medical Treatment only (Prudent Layperson standard) Eliminates application to non-emergency off-campus sites. Parking of EMS patients. Must still be assessed upon presentation

Never say never… FAMILY LAWYER: HOSPITAL WORKER STEPPED OVER DEAD PATIENT DAYS BEFORE BODY WAS DISCOVERED. The Los Angeles Times (10/24, Dolan) reports on allegations that a hospital employee in San Francisco saw the body of a patient lying in an “emergency stairwell” and stepped over it days before the fatality was discovered. Haig Harris, an attorney representing the deceased patient’s family, says he was informed that the hospital employee saw the body of Lynne Spalding, 57 and reported it to a nurse, though it is unclear it took days for anyone to take action.

Stabilizing Treatment Within capability and capacity of hospital, must ensure that: the Emergency Medical Condition is removed, or the patient is Stable for Discharge

Stabilizing Treatment EMTALA obligation ends when patient admitted as inpatient, even if not stabilized. Expectation of overnight stay.

Delay in Examination or Treatment Hospital may not delay providing an appropriate medical screening examination in order to inquire about the individual’s method of payment or insurance status.

Delay Cont’d Prior Authorization explicitly prohibited until after screening and initiation of stabilizing treatment Reasonable registration, including insurance information, allowed.

Reason for Transfer Patient request (in writing, with risk / benefit understanding). Physician certification that benefits outweigh the risks.

Appropriate Transfer Transferring hospital minimizes risks (within capability and capacity). Receiving facility agrees to accept. Transferring hospital sends all medical records. Transfer effectuated with appropriate personnel and transportation.

Recipient Hospital Responsibilities Participating hospitals with specialized capabilities may not refuse a request for an appropriate transfer of an individual requiring that capability if the facility has the capacity to treat the individual.

Recipient Hosp Resp Cont’d Capability or Capacity only reason for refusal of transfer request under EMTALA This requirement applies to any participating hospital with specialized capabilities, regardless of whether the hospital has a dedicated emergency department. (Effective, October 1, 2006)

EMTALA Waiver 72 Hours after issuance of waiver and activation of Hospital’s disaster protocol Allows for otherwise inappropriate transfers due to circumstances arising out of emergency Allows for screenings at alternate locations per State emergency plan Evaluations still rest on capability and capacity

Regulatory Changes (OPPS ’09) Continued non-application to unstabilized inpatients Community Call Indefinite Pandemic Flu Waiver

Recent EMTALA Issues False Labor-Mid-wives, and QMPs may determine (effective October 1, 2006) On-call refusal to come in / refusal to accept transfer Triage vs. Screening (or “Screening Out”) Coercion 250-Yard Rule Diversion/Parking of EMS Patients Helipads and Helicopter Transfers Hospital-Owned and Operated Ambulances Declared Emergency

CMS Review Procedures Possible Outcomes: No violation Past Violation, No termination Violation, Immediate and Serious Threat Violation, No Immediate and Serious Threat All investigations referred to QIO prior to finding of violation (MMA)

EMTALA Penalties CMS: Medicare Termination DHHS Office of the Inspector General: Hospital CMP of $50,000 per violation for hospital ($25,000 if less than 100 Beds) Physician CMP of $50,000 per violation Exclusion from Medicare and Medicaid programs

Three Keys to Compliance: Consistency Complaint system Knowledge

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CMS EMTALA Websites General EMTALA Information www.cms.gov/emtala CMPs Imposed by the Office of the Inspector General http://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp

EMTALA Contacts David Wright PH: (214) 767-6426/ FAX: (214) 767-0270 E-Mail: David.Wright@cms.hhs.gov Dodjie Guioa PH: (214) 767-6179/Fax: (214) 767-0270 E-Mail: Dodjie.Guioa@cms.hhs.gov Dorsey Sadongei PH: (214) 767-3570/Fax: (214) 767-0270 E-mail: Eudora.Sadongei@cms.hhs.gov Sergio Mora PH: (214) 767-4432/Fax: (214) 767-0270 E-Mail:Sergio.Mora@cms.hhs.gov