HLTH 7660OCA: The Law of Patient Care

Emergency Medical Treatment and Active Labor Act (EMTALA)

Naira R. Matevosyan

March 20, 2015March 20, 2015

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CONTENTS Provisions of EMTALA - p.3 Participating hospitals - p.4 Emergency Medical Condition– p.5 Appropriate medical care - p. 6 What does 'to stabilize' mean ? - p.7 Transfer of the patient – p. 8 When the patient refuses treatment/transfer – p.9 Obligations of receiving hospital – p. 10 Obligations imposed on the ambulance – p. 11 Penalties – p. 12 Reorganizing on-call services – pp. 13 -15 Parting thoughts – p. 16

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Provisions of EMTALA The Emergency Medical Treatment and Labor Act (EMTALA)

was enacted by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (42 U.S.C. §1395dd). EMTALA is the Section1867(a) of the Social Security Act, within the section of the U.S. Code which governs Medicare.

As an "anti-dumping" law, EMTALA was designed to prevent hospitals from discharging or transferring uninsured or Medicaid patients to public hospitals without providing, at minimum, a medical screening (appropriate and consistent with the hospital's customary capacity) and stabilizing the patient's emergency condition.

Under the Anti-Discrimination Law (Title VI of the Civil Rights Act 1964 [42 USC 2000d]), EMTALA is enacted to prevent

discrimination for race, color, creed, or national origin (45 CFR).

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PARTICIPATING HOSPITALS

EMTALA applies only to "participating hospitals." Those are hospitals which have entered into "provider agreements" under which they will accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the Medicare program for services provided to beneficiaries of that program.

As such, EMTALA applies to virtually all hospitals in the U.S., with the exception of the Shriners' Hospital for Crippled Children and several military hospitals. Its provisions apply to all patients, and not just to Medicare patients.

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EMERGENCY MEDICAL CONDITION

A medical condition manifesting by acute symptoms of

sufficient severity such that the absence of immediate

medical attention could reasonably be expected to result in:

placing the health of the individual (including the pregnant woman and the fetus) in serious jeopardy;

serious impairment to bodily functions, or

serious dysfunction of any bodily organ or part.

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APPROPRIATE MEDICAL CARESeveral Courts have held that the "appropriateness" of medical care is determined in

light of the hospital's customary practices and capacity.” [1, 2] If the patient is erroneously diagnosed for not having an EMC when in fact he does, the statute does not apply to that case. [3]

Under EMTALA, provision of appropriate treatment means medical screening examination or intervention within the capability of the hospital's emergency department, including routinely available ancillary services. [4]

Other Courts have ruled that “the hospital could be found in violation of EMTALA for failure to diagnose an EMC through an inadequate screening procedure” [5- 7].

See:

(1) Baber v. Hospital Corporation of America, 977 F.2d 872 (D.W.Va. 1992)

(2) Jones v. Wake County Hospital System, Inc., 786 F.Supp. 538 (E.D.N.C. 1991)

(3) Urban v. King, 834 F Supp 1328 (1993)

(4) 42 USC 1395dd(e)(3)(A) (2005)

(5) Deberry v. Sherman Hospital Association, 741 F. Supp. 1302 (N.D. Ill.1990)

(6) Power v. Arlington Hospital, 42 F3d 851 (4th Cir 1994)

(7) Summers v. Baptist Medical Center of Arkadelphia, 69 F.3d 902 (8th Cir. 1995), rev on reh en banc 91 F.3d 1132 (1996).

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STABILIZING

EMTALA defines:

to 'stabilize' is to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to [a pregnant woman having contractions], to deliver (including the placenta). [8]

(8) 42 USC 1395dd

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TRANSFER OF THE PATIENTAn "appropriate transfer" [9] is when:

The patient has been treated at the transferring hospital, and stabilized as far as possible within the limits of its capabilities;

The patient needs treatment at the receiving facility and the medical risks of transferring him are outweighed by the medical benefits of the transfer;

The weighing process is certified in writing by a physician;

The receiving hospital has been contacted and agrees to accept the transfer, and has the facilities to provide the necessary treatment to him;

The patient is accompanied by copies of his medical records from the transferring hospital;

The transfer is effected with the use of qualified personnel and transportation equipment, as required by the circumstances, including the use of necessary and medically appropriate life support measures during the transfer.

(9) 42 USC 1395dd(c)(1)(iii)

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WHAT IF THE PATIENT REFUSES?Pursuant to 1395dd(b)(2), the hospital meets the requirement of a medical

screening if it:

offers the patient the further medical examination and treatment required under Section 1395dd(a);

informs the patient or another on his behalf "of the risks and benefits of the offered examination and treatment";

and the patient or another acting on his behalf refuses to consent to the examination and treatment.

The regulations additionally provide that:

the medical record must contain a description of the examination or treatment which was refused;

the document to be signed by the patient should include a recitation of the fact that the patient or other acting on his behalf has been informed "of the risks and benefits of examination or treatment". [10]

(10) 42 CFR 489.24(d)(3)

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OBLIGATIONS OF RECEIVING HOSPITAL

Any participating hospital which has "specialized capabilities or facilities" such as burn units, shock-trauma units, or neonatal intensive care units, or which is a "regional referral center" in a rural area, MAY NOT refuse to accept a patient in transfer, if it has the capacity to treat the individual.

The receiving hospital MUST accept the transfer in most cases, so long as it has the ability to treat the patient and its capabilities exceed those of the referring hospital, even if only because of overcrowding or temporary unavailability of personnel.

A participating hospital MUST " report to CMS or the State survey agency any time it has reason to believe it may have received an individual who has been transferred in an unstable emergency medical condition from another hospital in violation of the requirements of Section 489.24(d). [11]

(11) 42 USC 1395dd(g); 42 CFR 489.24(f)

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AMBULANCE

The statute imposes no requirements on ambulance services per se. The responsibilities of the ambulance service and its employees are solely a matter of statutory law.

A patient in a non-hospital-owned ambulance in transit is not considered to have "come to the emergency department" even if the ambulance is in contact with the hospital by telephone or by radio telemetry. The hospital may deny access to the patient in transit if it is in "diversionary status" -- that is, if it does not have the staff or facilities to accept additional patients.

Before, an ambulance owned by a hospital was obligated to transport the patient to that hospital, even if another or even a more suitable facility was closer. The 2003 regulations have now removed the obligation for hospital-owned ambulances if they are "integrated" with EMC services. The net effect is that these ambulances will now be free to transport patients to a suitable hospital facility and will not be required to automatically transport the patients to the hospitals which own them.

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PENALTIES

The hospital which negligently violates the statute may be subject to a civil money penalty of up to $50,000 per violation. If the hospital has fewer than 100 beds, the maximum penalty is $25,000 per violation.

A physician who is responsible for providing an examination or treatment, including but not limited to an on-call physician, may be liable for a civil money penalty for signing the medical certificate if he knew or should have known that the benefits of transfer did not in fact outweigh the risks of transfer, or if he misrepresents the patient's condition or the hospital's obligations under the statute.

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ON - CALL SERVICESA physician who is on-call and who fails or refuses to appear after being called

from the emergency department, may be subject to a penalty under the statute, or may subject his hospital to a penalty. [1395dd(d)(1)(C)]

Can an on-call physician direct that the patient be transferred to his office in lieu of his showing to the emergency department?

No. When a physician is on-call for the hospital and is usually seeing patients in a schedule and in a private office, it is not acceptable to refer EMC cases to his office for exam or treatment. The physician must come to the hospital to examine the patient. BUT, if the transfer is medically indicated, such as where the physician office has specialized equipment necessary for stabilizing the patient not available at the transferring hospital, the treating physician may send the patient to the physician’s office if it is a provider-based part of the hospital (they share the same CMS certification number). It must be clear that this transport is not done for the convenience of the specialist but that:

There was a genuine medical reason to move the patient;

All patient with the same EMC, regardless of their ability to pay, are similarly moved to the specialist’s office, and

The appropriate medical personnel accompany the individual to the office.

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OBSTETRIC UNITSThere are emergency conditions in obstetrics, when transferring the patient is not

an option: severe eclampsia, stage-2 labor with transverse fetus, embolism with amniotic fluids, uterine rupture in progress, perimortem labor, and others.

The average waiting time for an on-call physician is 12-45 minutes. An EMTALA optimization must consider reorganizing the obstetric unit and training the personnel on the preparedness to perform at least the following procedures:

Application of the tongue holder during the epiglottal paralysis

Intra-cardiac injection of adrenaline

Switching-on and monitoring the ethanol drip

Scoring the FHR and the biophysical profile of the fetus

Intracorporal and extracorporal C-section, O'Leary sutures, Bakri tamponade

Internal cephalic version

Labor arrest and application of the obstetrical forceps

External ligation of the uterine arteries and internal iliac arteries

Manual detachment of the placenta

Epidural anesthesia.

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ON-CALL: Continued

According to the EMTALA, a list of the on-call physicians must be maintained. An on-call physician must respond within a reasonable amount of time, specified in minutes by hospital bylaws, policies, and procedures.

According to CMS's Letter No. 07-23 (06/22/07), there is no EMTALA prohibition against the treating physician consulting with another physician by telephone, video conference, or any other means of communication. It is only when the treating physician requests an in-person appearance by the on-call physician that a failure by the latter to appear in person may constitute an EMTALA violation. In 2003, the DHHS clarified that on-call physicians may have simultaneous on-call duties and schedule elective surgery during the time that they are on-call. [12]

(12) 68 Fed. Reg. 53,264 (Sept. 9, 2003).

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PARTING THOUGHTS

We remain concerned, that community call plans that are established to provide on-call physicians to a group of geographically located emergency departments will raise anti-trust claims.

The DHHS has directed all such inquiries to the U.S. Department of Justice Anti-Trust Division for further review under the business review process.

The DHHS also refers any HIPAA related concerns involving emergency departments’ discussion of patients in connection with a community call plan, to the Office of Civil Rights, which is charged with technical guidance and enforcement of the HIPAA Privacy Rule.