EMTALA

March 2, 2017

Posted on by hortyspringer

QUESTION:        I’m the orthopedic surgeon on call at Hospital Big.  Our ED just got a call from the ED at Hospital Small.  Their orthopedic surgeon isn’t on call tonight, and they have an ED patient with an emergency medical condition they can’t stabilize.  They want to transfer the patient here so that I can treat and stabilize the patient.  The truth?  I’m tired of Hospital Small treating me like their on-call orthopod.  They should have theirs on call more often, and not just send me their ED patients who are uninsured.  I’m going to tell them not to ship the patient.  Any problem with that?

ANSWER:             The main problem is that this is likely going to be an EMTALA violation for Hospital Big.

A receiving hospital has the right to refuse an EMTALA transfer request if the proposed transfer is “lateral.”  A lateral transfer occurs when the same emergency medical condition (“EMC”) stabilizing services are provided and available at both the sending hospital and the proposed receiving hospital.  Such a refusal does not violate EMTALA even though it may be in the patient’s best interest for the transfer to be accepted.

The exception to this rule is where the sending hospital cannot stabilize the patient’s EMC and the receiving hospital has “specialized capabilities,” compared to the sending facility that can, here, the on-call orthopod.  The receiving hospital also has to have the capacity (available OR and staff) to stabilize the patient’s EMC.  In that situation, the receiving hospital has to accept the patient; it cannot refuse the proposed transfer.

Common areas in which “specialized capabilities” have been found by CMS include orthopedic surgery, neurosurgery, OB and mental health care (particularly inpatient mental health care).  These are only common examples; conceivably, any services provided at the proposed receiving hospital that are not available at the sending hospital are “specialized capabilities.”

We’ve been involved in specific investigations and enforcement efforts where CMS has responded to complaints by strictly holding the receiving hospital accountable.  Here, that would be Hospital Big.  By EMTALA, a hospital cannot delegate to an on-call specialist the authority to decline a transfer.  To address this, many hospitals have instituted an approach where the ED physician makes the decision to accept or decline a proposed transfer.

It is best for the ED physician (as the “acceptance decision-maker”) to discuss the proposed transfer with the on-call specialist, as the specialist may have legitimate reasons for why the transfer should not be accepted.  But it is the ED physician (or other hospital-designated individual) who makes that final decision.

This can no doubt create some unfair situations for Hospital Big’s on-call orthopedic surgeon.  And it might be best for the right management person at Hospital Big to reach out to her counterpart at Hospital Small, to try and address what appear to be transfers by which Hospital Small is taking advantage of Hospital Big’s on-call specialist(s) (at least from Hospital Big’s point of view).

But the key is, CMS has been enforcing the specialized capabilities transfer rule this way for over 15 years, and we still encounter the question asked above at hospitals and by medical staff physicians.  EMTALA’s penalties are the potential termination of the hospital’s Medicare provider agreement and fines of up to $50,000 per EMTALA violation.  That would be the most painful outcome for any kind of wrong EMTALA patient transfer decision.

January 7, 2016

Posted on by hortyspringer

QUESTION:        Our hospital is interested in using an electronic application that allows individuals to schedule a time to come to our Emergency Department by picking a time slot through our website. Is that going to get us in trouble under the Emergency Medical Treatment and Active Labor Act (“EMTALA”)?

ANSWER:            It’s a good question. The CMS EMTALA Central Office says that simply using such an electronic application is not in and of itself an EMTALA violation. The key point is how patients are treated when they arrive at the ED.

Per the Central Office, the use is not an EMTALA violation because the potential for an EMTALA violation is interpreted as beginning when the patient presents to the ED or is on the hospital’s property. Once a person arrives at the ED or is on the hospital’s property, EMTALA obligations begin equally for everyone, regardless of any prior contact or communication made. So long as the hospital maintains the obligation to perform an appropriate medical screening examination and stabilizing treatment to everyone equally once a person presents for ED care, any other arrangement is irrelevant to EMTALA compliance.

This means that how the electronic application is used is a key to EMTALA compliance. If it’s used so potential patients can see how crowded the ED might be at any given time and plan an arrival time, and if patients are then triaged and screened according to standard procedure, there should not be an EMTALA problem. If, however, the application is used to allow a patient to move to the front of the line when he or she arrives at the ED or on hospital property regardless of what the hospital’s triage and screening processes say, then there would be an EMTALA concern, and so the potential for a violation.

The bottom line, all must be treated equally when they arrive at the ED.

May 28, 2015

Posted on by hortyspringer

QUESTION:        We have a very small neurosurgery department at our hospital, where the active members of the medical staff are obligated to provide ED call. Assuming that we only have two neurosurgeons that are able to cover ED call, does this mean they must each take 180 days of call each year? Our physician leaders are telling us that this is a tremendous burden, but we do not want to violate EMTALA.

ANSWER:        A tough question, made even tougher by the fact that CMS has provided very little guidance on the reasonableness of hospital call schedules. In fact, the best rule of thumb comes from historical guidance from CMS that CMS now specifically denounces!

To begin, it is important to keep in mind that CMS does not require 24/7/365 coverage. Instead, it uses a rather nebulous “all relevant” factors test to evaluate the reasonableness of a hospital’s coverage arrangements. Frankly, this is not a very helpful rule, so many organizations that we work with take a “rule of three” approach, as it relates to provider on-call responsibilities. This approach is based on prior, informal guidance from CMS that said if there were three physicians in a particular clinical specialty on a medical staff, the hospital had the obligation to provide emergency services on a 24/7/365 basis for that specialty. This has been extrapolated to mean that, in a single physician specialty, call would need to be provided only one-third of the time (i.e., 10 days/month). This would mean the hospital above would have neurosurgery coverage for 20 days out of the month.

While CMS has explicitly denied the rule of three ever existed, we think this is a relatively safe position to take in terms of EMTALA compliance. Of course, we have seen other facilities adopt a “rule of four” or even a “rule of five” where they have found the obligation created under the “rule of three” to be too burdensome or if there are other “relevant factors” that would justify another approach (e.g., the number of physicians available to take call, other demands on these physicians, frequency of emergency cases in that specialty, etc.).

February 19, 2015

Posted on by hortyspringer

QUESTION:    Our pediatricians have asked that their Nurse Practitioners be permitted to be listed on the on-call list of the Hospital in lieu of their collaborating physician. Is this permissible under the Emergency Medical Treatment and Active Labor Act (“EMTALA”)?

ANSWER:    No. Nurse Practitioners (or other nonphysician practitioners) cannot be listed on the Emergency Department on-call coverage list. EMTALA requires hospitals to “maintain a list of ‘physicians’ who are on call for duty, after the initial Emergency Department examination, to provide treatment necessary to stabilize an individual with an emergency medical condition.” 42 U.S.C.A. §1395cc(a)(1)(I).

EMTALA specifically requires the physicians on a hospital’s medical staff to be individually listed to provide on-call services necessary to stabilize a patient.

Nurse Practitioners may not independently participate in the emergency on-call roster (formally or informally by agreement with their collaborating physicians) in lieu of the collaborating physician. The collaborating physicians (or their covering physician) must be listed for on-call coverage and must personally respond to all calls in a timely manner, in accordance with requirements set forth in the Bylaws and EMTALA On-Call Policy. Following discussion with the Emergency Department, the collaborating physician may direct a nurse practitioner to see the patient, gather data, and order tests for further review by the collaborating physician. However, the collaborating physician must still personally see the patient when requested by the Emergency Department physician.

A Nurse Practitioner (and other APRNs and Physician Assistants) may be used to assist the on-call physician in responding to call. Any decision to use any of these nonphysician practitioners to respond initially to the Emergency Department should be made by the on-call physician in conjunction with the Emergency Department physician.

If the on-call physician and the Emergency Department physician do not agree, the Emergency Department physician is the final decision-maker. (If the Emergency Department physician disagrees with the on-call physician’s decision to send a Nurse Practitioner or other nonphysician practitioner, the Emergency Department physician is to request the on-call physician to come in.) This decision must be based on the patient’s medical needs and the capabilities of the hospital, and must be consistent with hospital policies and/or protocols.

Nonphysician practitioners – qualified medical personnel (“QMP”) under EMTALA – can perform the medical screening examination under EMTALA. This also means that the QMP has been granted the clinical privileges necessary to perform the medical screening examination, and that the privileges come within the applicable state licensing regulations for that QMP category. The EMTALA requirement in this situation is that the hospital’s governing Board has approved, in writing, the category of nonphysician practitioners who will be performing the medical screening examination.

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