emtala: what’s new & what’s problematic · 6 •no material deterioration of the emc is...
TRANSCRIPT
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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
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