Kusserow on Compliance: Reminder to compliance officers—EMTALA is a high risk area

EMTALA enforcement is on the rise, and a good example of this was AnMed Health, a hospital located in South Carolina. The hospital recently agreed to pay $1.3 million for violating EMTALA; the largest such settlement to date and it included a CIA. This was as result of failing to provide appropriate screening examinations and stabilizing treatment to patients presented to the emergency department (ED) with psychiatric conditions. As large as the penalty was, the OIG indicated it would have likely been much larger, but AnMed was credited with being cooperative with the OIG during the investigation and having engaged in significant corrective action. It is worth recalling that the OIG issued new regulations that (1) increased the civil monetary penalty amounts for EMTALA violations and (2) encourage providers to self-report EMTALA violations to CMS in order to potentially receive more lenient penalties where there is a violation of the law. Compliance officers should ensure the EMTALA high-risk area is being addressed by ongoing monitoring and auditing. The following offers a suggestions and tips for Compliance officers provided by the Policy Resource Center that have detailed audit guides for high-risk areas, including EMTALA, as well as many related policies and procedures. For more information, contact them directly.

EMTALA Policies

Comprehensive EMTALA policies should address:

  • Who conducts screening with detailed screening protocols
  • Processes for reassessing patients after initial screenings
  • Screenings to be conducted by a physician or qualified medical personnel
  • Documentation and uniformity of screenings regardless of ability to pay
  • Conduct and timeframes for stabilization of patients as obligated under EMTALA
  • Process and patients’ rights for transfers
  • Requirements for physician certifications and medical record documentation for transfers
  • Processes for transfers into the hospital
  • Transfers to medical records and patient consent
  • Refusal for emergencies transfers and state-specific transfer requirements
  • Prohibition of retaliation against whistleblowers that make reports
  • Creating a method to internally report and address potential violations and timely conduct investigations
  • Any changes in the law or accreditation standards.

Training on Policies

The key to a successful EMTALA program is education so that the policies can be followed appropriately by frontline staff. All new staff assigned to the ED should first undergo intensive training on EMTALA policies and annual refresher training is advisable. The training should address scenarios of real life situations that prepare for making quick decisions on the job.

Determine EMTALA Investigating and Reporting Responsibility

EMTALA complaints can come from many sources, including other hospitals, patients, family members and ambulance companies. They frequently also are reported to CMS and the OIG.  It is critical that reported EMTALA issues are addressed promptly and appropriately and how this is handled is viewed seriously by regulatory and enforcement agencies. Clinical leadership should play a key role in this process, but they should understand when and how they would work with the compliance officer and legal counsel who will need to be involved in guiding investigations and interactions with government agencies. Investigations at the direction of legal counsel, especially outside counsel, will preserve privilege, especially since EMTALA provides for the potential for a private cause of action in malpractice cases.

22 Ongoing Auditing EMTALA Tips

  1. Verify that policies/procedures specifically address EMTALA compliance.
  2. Check to see that transfer policies and arrangements are being followed
  3. Determine if there are long delays in the ED
  4. Review triage and screening protocols and training
  5. Review on-call polices and contracts to ensure the ED has adequate coverage
  6. Review bylaws related to who can conduct screenings
  7. Ensure that staff members are not requesting payment prior to screening patients
  8. Review transfer forms and logs
  9. Conduct a medical record audit for screening and transfers
  10. Confirm whistleblower protections
  11. Review internal reporting chain
  12. Review training materials and documentation
  13. Verify specialists are on staff to meet the screening and stabilization requirements, as well as inpatient capabilities for stabilizing emergency patients
  14. Ensure there are no payments requested prior to screening patients
  15. Verify policies prohibit retaliation against whistleblowers that make reports
  16. Verify a method for internally reporting (e.g. hotline) and addressing potential violations
  17. Check to see there is a central log that is properly maintained for disposition and compliance with legal requirement
  18. Confirm that the physician on-call list reflects coverage of services available to inpatients
  19. Verify triaging of patients is being performed properly
  20. Verify all physicians come to the facility when called and are in compliance with the timeframes set forth in policies
  21. Confirm all transfers of individuals with un-stabilized EMCs are initiated either by (a) a written request for transfer or (b) a physician certification regarding the medical necessity for the transfer
  22. Verify there is an established a transfer request log to capture necessary information.

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.

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Copyright © 2017 Strategic Management Services, LLC. Published with permission.