Kusserow’s Corner: EMTALA Compliance High Risk Area

The Emergency Medical Treatment & Labor Act (EMTALA) grew out the 1946 Hill-Burton Free Care Program to provide Federal grants to hospitals for modernization in return for providing uncompensated services without consideration as to race, color, creed, national origin, or ability to pay. EMTALA continues with the same basic non-discrimination principles that protects against “Patient Dumping.” It imposes legal obligations on hospital penalties to ensure that (1) all patients who come to the hospital with an emergency medical condition or in active labor receive an appropriate Medical Screening Examination; (2) patients with an emergency medical condition are stabilized; (3) patients requiring or requesting a transfer are transferred appropriately; (4) the Emergency Department tracks those physicians that are on call to provide necessary treatment; and (5) through adequate signage, ensure that all patients have the opportunity to review their right to medical screening examination and stabilization for an emergency medical condition. Violations may result in monetary penalties of not more than $50,000 (or not more than $25,000 for hospitals with less than 100 beds) for each violation. It is one of the enumerated high-risk areas identified by the OIG in their compliance guidance documents.

There are a number of EMTALA enforcement and regulatory actions taking place on a regular basis, however there are only a relatively few that are court cases. Those resolved through the courts have resulted in inconsistent interpretation of the statute’s major provisions on appropriate standard of care with respect to the duty to perform a medical screening. This lack of uniformity has limited EMTALA’s effectiveness and in inhibiting enforcement efforts. CMS has attempted to clarify some parts of the provisions that caused confusion with a final rule for the inpatient prospective payment system (IPPS). In spite of this, case law continues to evidence significant problems with interpreting the scope of EMTALA’s core provisions, such as medical screening, stabilization and transfer requirements. However, there is no question that once an emergency medical condition is confirmed through medical screening, the hospital must treat that condition until the patient is stable. After the hospital provides appropriate examination and stabilizing treatment, anything else that happens to the patient as an inpatient or after discharge becomes a medical malpractice, not an EMTALA issue.

Most EMTALA cases continue to be resolved through a settlement agreement with the OIG and involve refusal to accept in their emergency department appropriate transfer of patients or failing to provide adequate medical screening and stabilization of patients. In the last year, there have been a number of cases resolved this way with settlement amounts ranging from $20-180,000 per case. These involved both highly prestigious hospitals, as well as others that are not, including Mahaska Health Partnership, East Texas Medical Center Carthage, Mercy Hospital of Franciscan Sisters of Iowa, Emory University Hospital, Donalsonville Hospital, Sacred Heart Hospital, University of Chicago Medical Center, Hackley Hospital, Southcoast Hospital Group, Duke University Hospital, Hendricks Community Hospital, Texas County Memorial Hospital, and Northside Hospital. Although the penalties under EMTALA are significant, many hospitals have found that private tort litigation by patients and reputational damage often creates a greater risk.

TIPS FOR COMPLIANCE OFFICERS

EMTALA cases suggest the areas of regulatory and enforcement of most interest to the federal government.  Based on what is known from the past court cases, compliance officers should consider:

  1. Ensuring that the departments affected by EMTALA regulations have ongoing monitoring of this risk area that ensure they keep current with changing rules in their operating policies, have proper training of their staff on this written guidance, and verifying everyone is adhering to them.
  2. As part of ongoing auditing, ensuring periodic review of all EMTALA-related policies and procedures to ensure they adequately address legal/regulatory requirements; identifying any gaps that create a risk of noncompliance; verifying they are being followed; and validating they are achieving the desired outcome.  It is critical for hospitals to adopt solid compliance policy and procedures.
  3. Ensuring appropriate medical screening procedures are applied uniformly to all people presenting themselves in the emergency department with similar symptoms. In other words, hospitals would have to be able to demonstrate that all patients were treated uniformly
  4. Verifying the hospital actually provides appropriate medical screening and follows their standards and policies; and validating that the written guidance is effective in ensuring compliance with EMTALA.

When assisting hospitals and Compliance Officers in addressing this high-risk area, we found that each hospital organization, structure, and management varies considerably in how they address EMTALA requirements.  This adds to the complexity and difficulties in proper auditing and monitoring and it will involve a number of different departments.  The issue areas are also varied in that it includes hospital emergency department capabilities and capacity, central log management, qualifications of medical personnel, physician on-call list, processes for addressing signage and stabilization, admissions and transfer procedures, addressing patient walkouts, claims submissions, etc.  As such, when planning to undertake oversight of this high-risk area, it is important to bring together expert resources to ensure proper coverage.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on Google+ or LinkedIn.

Copyright © 2014 Strategic Management Services, LLC. Published with permission.

Comments

  1. Victor Moturi, MBA says:

    Dumping of patients was resolved to some extent by EMTALA. To avoid unnecessary sanctions hospitals that offer emergency services have an obligation to comply. The high cost of care would have been one of the reasons that led to dumbing if patients. How would have Universal Healthcare solved this problem?

  2. I don’t see much material change in conditions for the foreseeable future. The original problem for hospitals was that uninsured persons would be brought in for expensive treatment. Even if the new health exchanges were to reach their objectives, there would still be people who would not have insurance that would require emergency treatment. Keep in mind that in some parts of the country, un-documented aliens without insurance seeking hospitalization. So, let us see what the next couple of years brings to the equation.