EMTALA

February 1, 2024

Posted on by Courtney Patterson

QUESTION:
Recently, we have had several physicians on our medical staff refuse to consult on a case because the patient was covered by Medicaid.  The patient had been admitted to the hospital, so we knew it wasn’t an EMTALA issue, but they still needed to be seen by a specialist.  Have you seen this at other hospitals, and do you have any suggestions on how to handle this?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Perhaps not surprisingly, this issue has come up before.  In an effort to address it, we recommend including language in your Medical Staff Governance Documents to make it clear that, not only do physicians have an obligation to see all patients in the ED, but they also have an obligation to respond to requests for consult (regardless of the patient’s payor status) when they are on call.

For instance, you might spell out in the Bylaws that Active Staff members have a responsibility to serve on the ED on-call schedule, and to “accept inpatient consultations, when on call for the ED.”  Similar language could be added to the Bylaws with respect to other staff categories.

Additionally, the threshold criteria for appointment and clinical privileges could require individuals to “agree to fulfill all responsibilities regarding inpatients, including responding to requests for consult when serving on the ED on‑call schedule.”  The basic responsibilities and requirements of appointment should also include an agreement “to provide emergency call coverage, consultations, and care for unassigned patients.”  This language will help ensure appropriate coverage not only for the ED but also for inpatients who require specialty consultations.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

August 31, 2023

Posted on by Courtney Patterson

QUESTION:
Can a physician assistant or nurse practitioner sign off on an EMTALA transfer certification?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
The EMTALA regulations at 42 CFR §489.24(e)(1)(ii) allow a “qualified medical person” such as an N.P. or P.A. to sign the transfer certification if a physician is not physically present in the emergency department at the time an individual is transferred.  The regulation reads as follows:

(B)       A physician (within the meaning of Section 1861(r)(1) of the Act) has signed a certification that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual or, in the case of a woman in labor, to the woman or the unborn child, from being transferred.  The certification must contain a summary of the risks and benefits upon which it is based; or

(C)       If a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as determined by the hospital in its bylaws or rules and regulations) has signed a certification described in paragraph (e)(1)(ii)(B) of this section after a physician (as defined in Section 1861(r)(1) of the Act) in consultation with the qualified medical person, agrees with the certification and subsequently countersigns the certification.  The certification must contain a summary of the risks and benefits upon which it is based.

Therefore, while an N.P. or P.A. can sign an EMTALA transfer certification if they have been categorically designated as a “qualified medical person” in the medical staff bylaws, rules and regulations, a physician needs to countersign it.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.

July 27, 2023

Posted on by Courtney Patterson

QUESTION:
We have a patient who is extremely disruptive and abusive to staff. We have spoken to the patient and given them several opportunities to curb this behavior. However, it appears to be getting worse. Can we terminate our relationship with this patient?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
Dealing with disgruntled patients can be a common occurrence, but patients who exhibit abusive behavior to practitioners and staff can be extremely disruptive to daily operations and patient care. While it is unfortunate that it has to come to this, you have the option of ending your relationship with that patient. How you go about doing so is key.

Providers who wish to terminate a patient must avoid doing so in a manner that would constitute “patient abandonment.” This can occur when the physician withdraws services after establishing a physician-patient relationship and fails to provide the patient with notice of the physician’s exit. State medical boards often hold physicians accountable and impose disciplinary action when this occurs.

Therefore, when considering terminating a patient relationship, it’s imperative that you provide the patient with written notice that explains, in brief, the reasons why the relationship is being terminated and the importance of continuing treatment.

In order to maintain continuity of care, you should give the patient a sufficient opportunity to make other arrangements and offer assistance/recommendations to help the patient identify alternative services. In the interim, it is important that you continue to provide treatment and access to services for a reasonable time prior to the termination of the relationship. We generally recommend 30 days; however, this may be longer or shorter considering the access to and availability of alternative services.

Keep in mind, however, that when a physician’s relationship with the patient terminates, the hospital’s obligations under EMTALA do not. Should the patient present to the hospital’s emergency department with an emergency medical condition, the hospital will still be required to provide a medical screening exam and stabilizing treatment for the patient regardless of whether you terminated your relationship with them.

We recommend checking your state medical boards for template letters that you can use when terminating a patient relationship. And, as always, if this unfortunate circumstance arises, consider consulting with an attorney to discuss how to approach ending your relationship with the patient to avoid running into “patient abandonment” issues.

If you have a question regarding terminating a patient relationship or questions you’d like to see featured in a future Health Law Express, email Mary Paterni at mpaterni@hortyspringer.com.

May 25, 2023

Posted on by Courtney Patterson

QUESTION:
We had an incident at one of our physician offices a couple of miles from the hospital’s main campus. Someone mentioned there may be some EMTALA concerns. Since the issue didn’t occur in the hospital’s emergency room, there is no cause for concern regarding EMTALA, correct?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR:
EMTALA may or may not be a concern here – depending on how the physician office operates. EMTALA requires that if an individual comes to a hospital’s emergency department “and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department.”

However, just because the incident did not occur in the hospital’s emergency room does not automatically mean that EMTALA was not triggered. EMTALA responsibilities also extend to individuals who present anywhere on a hospital’s campus – not just in the emergency department – and request to be examined or treated for an emergency medical condition or if a prudent person would believe that the individual is suffering from an emergency medical condition. The hospital’s campus includes spaces like the parking lot, sidewalk, driveway, and hospital departments, including any building owned by and within 250 yards of the hospital.

Even if the physician office is several miles away, EMTALA might still apply. EMTALA can also apply to off-site departments or facilities that are deemed to be “dedicated emergency departments” of a hospital.  This would require two things.  First, the office in question would have to be operated as an “outpatient department of the hospital” (i.e., a provider-based entity under 42 C.F.R. §413.65) AND either holds itself out to the public as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; OR provided at least one-third of all of its visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.

So while EMTALA is likely not an issue of concern for events that took place in this physician office several miles away, remember that events that occur outside of a hospital’s emergency department may also trigger EMTALA obligations.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

January 26, 2023

Posted on by Courtney Patterson

QUESTION:
From time to time, patients in our emergency department will leave without being seen (“LWBS”). Can we get in trouble under the EMTALA law when that happens?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY JOHN WIECZOREK:
Generally no, as long as you document the event correctly. Here is what the CMS Interpretive Guidelines for EMTALA say about LWBS:

If a screening examination reveals an emergency medical condition (EMC) and the individual is told to wait for treatment, but the individual leaves the hospital, the hospital did not “dump” the individual unless:

  • The individual left the emergency department based on a “suggestion” by the hospital;
  • The individual’s condition was an emergency, but the hospital was operating beyond its capacity and did not attempt to transfer the individual to another facility; or
  • If an individual leaves a hospital Against Medical Advice (AMA) or LWBS, on his or her own free will (no coercion or suggestion), the hospital is not in violation of EMTALA.

The Guidelines tell the surveyors to look for this:

In cases where an individual (or person acting on the individual’s behalf) withdrew the initial request for a medical screening examination (MSE) and/or treatment for an EMC and demanded his or her transfer, or demanded to leave the hospital, look for a signed informed refusal of examination and treatment form by either the individual or a person acting on the individual’s behalf. Hospital personnel must inform the individual (or person acting on his or her behalf) of the risks and benefits associated with the transfer or the patient’s refusal to seek further care. If the individual (or person acting on the individual’s behalf) refused to sign the consent form, look for documentation by the hospital personnel that states that the individual refused to sign the form. The fact that an individual has not signed the form is not, however, automatically a violation of the screening requirement. Hospitals must, under the regulations, use their best efforts to obtain a signature from an individual refusing further care.

So as long as you follow these guidelines, you should be OK.  But make sure your ED staff understand these rules.

December 22, 2022

Posted on by jwilbert

QUESTION:

Our hospital has noticed that on-call coverage by other local hospitals has gotten thinner since the pandemic.  If other hospitals adopt lighter on-call schedules, it means more patients are transferred to our hospital and our on-call physicians have more of a burden.  Is it acceptable for these other hospitals to have limited (or zero) on-call requirements for their specialists?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:

The Emergency Medical Treatment and Labor Act (“EMTALA”) requires every Medicare-participating hospital with an Emergency Department to have an on‑call schedule.  Specifically, each hospital is required to have “a list of physicians who are on call for duty after the initial examination to provide further evaluation and/or treatment necessary to stabilize an individual with an emergency medical condition.”  42 C.F.R. §489.20(r)(2).

The Centers for Medicare & Medicaid Services (“CMS”) expects a hospital to provide adequate on-call coverage consistent with the services provided at the hospital and the resources the hospital has available.  If a hospital has physicians on the Medical Staff who routinely provide services in their specialty to patients in the community, the hospital is expected to also provide a reasonable amount of on-call coverage in that specialty.

Prior to 2003, CMS informally operated under the “three‑physician rule.”  This rule stated that if there were three or more specialists on a hospital’s Medical Staff, CMS expected that hospital to provide on-call coverage 24 hours a day, 365 days a year.  In other words, under the three-physician rule, physicians were each expected to provide about 10 days of on-call coverage per month.

In 2003, CMS specifically disavowed the three‑physician rule.  In lieu of the three‑physician rule, CMS said it will use an “all relevant factors” test by which CMS will:

  • consider all relevant factors, including the number of physicians on staff, other demands on these physicians, the frequency with which the hospital’s patients typically require services of on‑call physicians, and the provisions the hospital has made for situations in which a physician in the specialty is not available or the on‑call physician is unable to respond.

CMS has refused to give any firm guidance on the number of days of coverage a hospital must have per physician under the “all relevant factors” test.  Thus, a hospital will only know if its on-call schedule is compliant if, after a complaint and CMS investigation, the hospital is found to be in compliance with EMTALA.

If you have reason to believe that another hospital’s on-call coverage is inadequate or nonexistent, you may want to first gather data to attempt to confirm this is the case.  If the data seem to confirm a problem exists, you might want to arrange a meeting with the other hospital to discuss the issues.  EMTALA allows for hospitals to work together to develop “community call plans” – this might allow all the involved hospitals to make better use of their resources.

There’s certainly no easy solution to on-call problems.  Hopefully, gathering data and communicating will result in better outcomes than any of the alternatives.

February 24, 2022

Posted on by Courtney Patterson

QUESTION:
Last week we had a 35-week pregnant patient present to our emergency department in active labor.  Her obstetrician was not on our medical staff and the on-call obstetrician was contacted to come in.  In the course of the phone call between the ED physician and the on-call obstetrician, the obstetrician realized that she knew this patient, and she informed the ED physician that she had treated her in the past but had terminated that physician-patient relationship the previous year because the patient had been noncompliant in connection with her previous pregnancy and related complications.  The on-call physician didn’t want to come in to treat the patient because she had gone through a formal process of sending the patient a letter, with the required advance notice, and didn’t want to reestablish that relationship.  Does the on-call physician really have to see a patient in this situation? It seems unfair.

OUR ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
Unfortunately, yes.  While it’s not a popular answer and it does seem unfair from the perspective of the obstetrician at issue who likely did everything required of her to formally terminate that physician-patient relationship – a process that usually requires written notification with at least 30 days’ advance notice (and sometimes longer in the case of a pregnant patient) – the Emergency Medical Treatment and Active Labor Act (“EMTALA”) requirements trump the fact that the obstetrician terminated the physician-patient relationship.  In this case, the obstetrician is responding to the ED as the on-call physician, and she has to respond.

In the absence of a statute like that in effect in Virginia, which specifically provides that a physician-patient relationship created by a response to the ED by an on-call physician is “deemed terminated” upon the discharge of the patient from the ED or, if the patient is admitted, upon the patient’s discharge from the hospital and the completion of any follow-up care prescribed by the on-call physician, the obstetrician will likely have to go through the advance notice and termination process again.

The situation would be different if this patient presented to the ED and told the ED that the obstetrician was her treating physician.  In that case, when the ED contacted the obstetrician to inform her that one of her patients was in the ED, the obstetrician would have been able to inform the ED that she had terminated the physician-patient relationship, and the ED would then have resorted to contacting the on-call obstetrician.

August 19, 2021

Posted on by Courtney Patterson

QUESTION:
“Sometimes people who come to our ED simply leave without telling anyone if they have to wait any length of time. Are we on the hook for an EMTALA violation when that occurs?”

ANSWER:
Generally, you are not.  EDs are busy places and individuals may have to wait for care behind others based on priority and other factors.  Some individuals may decide to leave and seek care elsewhere.  That, in and of itself, is not an EMTALA violation.  However, there are several instances where CMS has cited hospitals for “coercing” an individual to seek treatment at another facility.  This type of activity – whether done directly by telling the individual they would be better off going somewhere else, or indirectly by routinely keeping people in the ED waiting so long that they get frustrated and leave– could create risk for the hospital.

However, assuming those types of activities are not in play, the best thing to do when an individual leaves the ED without being seen is to document the individual’s departure as soon as it is discovered and keep any other documentation that may have been created based on any interactions with the individual before he or she left.

July 1, 2021

Posted on by Courtney Patterson

QUESTION:   “In reference to the case in this week’s HLE, does EMTALA apply to inpatients?”

ANSWER:      The obligations under EMTALA do not apply to a hospital once a patient is admitted as an inpatient in good faith.

However, the issue in the Harmon case was whether the patient had been formally admitted as an inpatient or simply placed in observation. If it is ultimately determined that the patient had been admitted as an inpatient, then he will no longer have a claim under EMTALA, as the Hospital’s obligation to effectuate an appropriate transfer would have ended prior to his attempt to kill himself by jumping out of the car during the transfer to the other facility.

Conversely, if it is determined the patient was put into observation but not admitted as an inpatient, he will be free to pursue his EMTALA claim. This is because CMS has stated that such action does not end a hospital’s EMTALA obligations. This can be found in the Interpretive Guidelines, which state:

“Individuals who are placed in observation status are not inpatients, even if they occupy a bed overnight. Therefore, placement in an observation status of an individual who came to the hospital’s [emergency department] does not terminate the EMTALA obligations of that hospital or a recipient hospital toward the individual.” (Emphasis added)

TAG A-2411/C-2411, Rev. 191,07-19-19

The court in Harmon cites entries in the patient’s medical record that support both arguments (i.e., that the patient was admitted vs. put into observation), so it declined to make a finding on this factual question at this point in the litigation.

October 29, 2020

Posted on by hortyspringer

QUESTION:        I heard on a recent audio conference that nurse practitioners are not permitted to be listed on the emergency department call schedule.  But, it’s commonplace at our Hospital for the hospitalists to split call amongst the doctors and the nurse practitioners.  It’s been this way for years.  Did something change?

 

ANSWER:          The Emergency Medical Treatment and Active Labor Act (“EMTALA”) has always required that a physician be listed on the on-call roster for the emergency department (“ED”). Nurse practitioners, physician assistants, and other non-physicians do not suffice to satisfy this legal requirement.

That does not necessarily mean your hospital has been doing things wrong, however.  When the term “on call” is thrown around by those involved in hospital and medical staff compliance matters, sometimes things get jumbled up a bit – because that term can mean a number of things.

It is perfectly acceptable for nurse practitioners, physician assistants, and other non-physicians to be on call for their private group practice or for their employer (for example, physician assistants who are part of an employed or contracted hospitalist group that covers all patients admitted to the hospital).  These individuals likely are responding to calls about the practice’s patients (sometimes from the ED and sometimes from the floor) and they may even agree to take on some unassigned patients who present to the hospital, if no one else is available to assume those patients’ care.

This is different than the ED’s on-call roster.  The on-call roster is used by the hospital to ensure that services that are designed to meet the needs of the community are available within the ED.  This is the roster of physicians who respond in the event that a patient comes to the ED and is determined to be suffering from an emergency medical condition that requires stabilization.  In some (most) hospitals, if the patient lacks an existing patient-physician relationship with the type of specialist (e.g., cardiology, oral and maxillofacial trauma surgeon) whose services are required, the patient is considered “unassigned” and, by policy, the physician listed on the ED’s on-call roster must respond to the hospital to care for the patient (as requested by the ED physician).  In some hospitals, all patients who come to the ED after normal business hours are assigned to the ED’s on-call physician, though that is less commonly the policy.

To summarize: When an individual is covering their own practice’s patients, that person is not generally considered to be on the ED’s on-call roster.  As long as hospital policy allows it, a practice can choose any of its practitioners to respond to calls to the practice about their own patients.

For the ED roster that is designed with EMTALA compliance in mind, however, a physician must be listed (by name, not by group practice).  It is likely that this is the way your hospital has been managing things, since the requirement for a physician to be listed has not changed.  The confusion generated during the recent audio conference that you listened to probably lies in the ambiguity over the term “on-call roster.”