Excerpts from Emergency Medical Treatment and Active Labor Act (EMTALA) manual
3.3 Who is Qualified to Perform the Medical Screening Examination?
A physician or other "qualified medical person" may perform the medical screening examination. The hospital must state in its bylaws or governing body approved rules and regulations who the hospital deems to be "qualified medical persons" for purposes of providing the medical screening examination. According to the Health Care Financing Administration (HCFA):
• While it may be prudent for a hospital to require a physician to conduct a screening examination in every instance, there may be hospitals, especially rural primary care hospitals, in which a physician is not available to provide a medical screening examination. Even when physicians are present in the hospital, there may be circumstances that are so clearly not emergency medical conditions that other qualified medical personnel may conduct the initial screening examination. However, it is up to the hospital to determine under what circumstances a physician is required to perform an appropriate medical screening examination. [59 Fed. Reg. 32086, 32099, (June 22,1994)]
• A "physician" is a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the state in which he performs such function or action. If state law permits podiatrists, dentists, optometrists, or chiropractors to provide the health care services that are a necessary part of a medical screening examination for a particular person, then they too may be deemed to be physicians for purposes of the EMTALA medical screening examination.
• Other "qualified medical persons" may include physician assistants, nurse practitioners, and registered nurses. "Qualified medical persons," however, must be capable of determining whether an emergency medical condition exists and ordering any necessary diagnostic procedures, without exceeding the scope of their professional licenses. These persons must be able to order whatever diagnostic procedures may be necessary to assess the person and be capable of interpreting the results to the extent necessary to determine whether the person has an EMTALA-defined emergency medical condition. In addition, a qualified medical person must have access to and be capable of using all of the hospital’s resources, including ancillary services available to the emergency department.
• Registered nurses, without advanced training or resources, generally do not meet the above criteria. If the hospital would like to use registered nurses to conduct limited medical screening examinations (e.g., obstetrical nurses), the hospital should consider adopting specific written policies addressing the education and training required and circumstances under which the registered nurse must consult with a physician. (Note that only a physician may make transfer decisions or determine whether a pregnant woman having contractions is in false labor — the latter a determination which ends the hospital’s EMTALA obligations.)
• Although hospitals may designate and use non-physician personnel to conduct medical screening examinations, there are risks in doing so. HCFA has reserved the right to "second guess" a hospital’s designation of "qualified medical personnel." HCFA has stated:
• Although we are requiring the hospital to specify. . . who is a "qualified medical person" for purposes of providing an appropriate medical screening examination, this does not mean HHS [the Department of Health and Human Services] must accept the hospital’s specification when determining whether an appropriate medical screening examination was done. So, for example, if a hospital specifies that a nurse is always the "qualified medical person" who should do the medical screening examination, HHS may, in some instances, determine that there was not an appropriate medical screening examination because the condition of the individual required the expertise of a physician to determine whether the individual had an emergency medical condition. [59 Fed. Reg. 32086, 32099 (June 22, 1994)]
Thus, if a non-physician does not identify an emergency medical condition and transfers or discharges a person without meeting the EMTALA requirements, HCFA may conclude that the hospital violated EMTALA by failing to provide an appropriate medical screening examination. If the person is injured due to the lack of an adequate screening, the person may bring suit against the hospital for both a violation of EMTALA and negligence under state malpractice laws.
8.2 Formulating EMTALA and Emergency Department Polices
Because hospitals have obligations to persons requiring emergency medical services under both state and federal law, the hospital’s governing body should review and understand the law, regulations, and standards applicable to the hospital’s provision of emergency services and consider formulating and adopting a policy or set of policies that incorporate these various obligations. If possible, the policy (or policies) should be included as part of the hospital’s compliance program or, at a minimum, periodically assessed through the hospital’s quality assurance system.
The governing body should consider including the following elements in its emergency department and EMTALA policies:
1. education of hospital personnel regarding the hospital’s EMTALA obligations and a system (preferably confidential) for personnel to report suspected violations to hospital administration;
2. monitoring systems to detect non-compliance with EMTALA and the related emergency department policies;
3. the hospital’s emergency services capabilities and procedures to be followed at those times the hospital cannot meet its full capabilities;
4. mechanisms to ensure that emergency department physicians and personnel have appropriate qualification and training;
5. the definition of "qualified medical personnel" who may conduct medical screening examinations and provide stabilizing treatment, including the education, training, scope of practice, and licensure standards for non-physicians who meet this definition;
6. requirements for hospital physicians and staff to document compliance with EMTALA (e.g., medical record documentation, certification forms, transfer forms); and
7. a process to track education efforts, monitor compliance, identify instances of non-compliance, provide for the evaluation and investigation of incident reports and other quality of care complaints, and ensure meaningful sanctions and other corrective actions related to the hospital’s emergency department policies.
With the support of the medical staff, the hospital may want to consider including:
1. a requirement that those who are granted hospital privileges affirm in writing that they understand and will support and uphold the hospital’s policies concerning persons with emergency conditions, including the duty to serve call and to timely respond to the emergency department when requested; and
2. a policy and the necessary procedures to suspend, pending the outcome of the hospital’s peer review process, the privileges of any physician who refuses to be placed on the call list or who fails or refuses to attend a person in the emergency department when on call.
Source: Arizona Hospital and Healthcare Association and Coppersmith Gordon Schermer Owens & Nelson, PLC, both of Phoenix. © 1998 Arizona Hospital and Healthcare Association.
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