Once an ED patient is in observation status, providers might assume their EMTALA obligations are over. This is not the case, emphasizes Todd B. Taylor, MD, FACEP, an EMTALA compliance consultant based in Phoenix. “Observation is an outpatient status, even if exactly the same care is being provided as inpatient [status],” Taylor says. “As such, [observation] is merely an extension of the ED care.”
This means ED patients in observation status are “under the full EMTALA burden,” according to Taylor. “All the same EMTALA ‘landmines’ present in the main ED extend to observation status. The increased risk occurs when those responsible for the observation unit do not recognize this fact.”
This includes on-call specialists. If contacted to consult on a patient in observation status, the on-call consultants’ EMTALA obligation is the same as if it were an ED patient. If contacted, the consultant must respond appropriately based on the request. EMTALA requirements also apply if the ED patients in observation status require transfer. “Put another way, observation is considered under EMTALA to merely be an extension of the medical screening examination begun in the ED,” Taylor offers.
ED providers still are trying to decide if the patient has an emergency medical condition, or if the emergency medical condition is stable. EMTALA does not end until the patient has been determined not to have an emergency medical condition, the patient’s emergency medical condition has been stabilized, or the patient is admitted as an inpatient. “‘Stabilized’ under EMTALA is a legal, not medical, definition,” Taylor notes.
A patient can be “stable” from a medical standpoint, but not meet the EMTALA definition of “stable,” and vice versa. For example, a patient in the ICU on a ventilator who is producing good vital signs and oxygenation is “stable” from a medical standpoint, but not based on the EMTALA definition. Likewise, someone with a trimalleolar fracture of the ankle may seem unstable from a medical standpoint. “But once splinted, it is stable under EMTALA,” Taylor explains.
To avoid problems with patients in observation status, Taylor says EDs should “use the same diligence in planning, organizing, and running such a program as you might for an ICU. Then, add EMTALA compliance.”
For patients who do not clearly meet admission criteria, ED observation units offer an opportunity to gather information over time. “This may help clarify the circumstances instead of sending the patient home with instructions to ‘come back if it gets worse,’ or arguing with family members who want mom admitted over the physician’s preference to send her home,” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services.
If EPs have nagging concerns about a patient, observation is a way to keep the patient under a watchful eye without receiving administration complaints about unnecessary admissions or denial of payments for admissions that are not deemed to be medically necessary. “From an EMTALA standpoint, it avoids the threat of citations or litigation triggered by discharging the patient,” Frew adds.
However, EMTALA citations and litigation still can occur. Frew says the greatest potential allegation is the hospital failed to provide an adequate medical screening exam initially, and should have actively treated or stabilized the patient instead of sending them to the ED observation unit.
To avoid EMTALA or malpractice issues with ED observation units, Frew says the decision to use observation should be made only after a thorough medical screening exam with adequate testing. If the EP lacks enough information to be certain about ruling out an emergency medical condition, more information might be obtained through additional (or different) testing, from the expertise of the on-call specialist, or a transfer to a more advanced hospital.
Additionally, Frew says ED providers should document the reason for using observation and that EDs should put in place protocols or give orders for frequency of assessment in observation. “In some cases, CMS has accepted observation as a reasonable alternative to specific testing,” Frew notes. “But that poses another potential compliance or liability threat: Inadequate monitoring of the patient.”
Historically, CMS has demanded regular and thorough documentation of the patient’s condition during observation. “CMS has cited violations when it is not present,” Frew cautions. “Observation units often are not staffed with sufficient numbers of adequately trained staff to assure proper monitoring and documentation.” In one such case, the patient presented with complaints of stomach pain and vomiting blood. After some time in the ED, the patient’s symptoms appeared to resolve. The EP decided to discharge the patient home to follow up with their gastroenterologist.
“The patient argued against discharge, but the physician insisted. When the patient went to leave, he vomited ‘coffee grounds’ blood,” Frew reports.
The patient was moved to the observation area. About four hours later, the ED nurse discovered the patient was deceased. There were no documented assessments or vital signs taken during the four-hour period. The nurse maintained she looked in on the patient who appeared to be sleeping, so she did not assess or take vital signs. “In this case, there were both EMTALA citations and malpractice claims,” Frew notes.
The malpractice lawsuit alleged failure to adequately monitor the patient. “Obviously, these circumstances raise the potential for myriad claims involving standard of care,” Frew says. “But EMTALA enforcement or civil claims do not focus on negligence or standard of care issues.”
Once an ED patient is in observation status, providers might assume their EMTALA obligations are over. This is not the case. Observation is an outpatient status, even if exactly the same care is provided as inpatient status. As such, observation is merely an extension of ED care.
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