EMTALA Concerns if Patients Ask About Delays
December 1, 2023 6 minutes read
By Stacey Kusterbeck
If a patient simply asks how long they will have to wait, this question carries has important EMTALA implications—and anyone working in an ED should think carefully about how to answer it. “It is especially important now, with prolonged wait-to-be-seen times and boarding being the new normal in the ED, that hospitals and emergency physicians plan ahead on how to address the expected patient questions on wait times,” says Robert A. Bitterman, MD, JD, FACEP, president of Bitterman Health Law Consulting Group.
ED boarding, in and of itself, does not violate EMTALA as long as patients are boarded without discriminatory intent. “EMTALA does not guarantee expeditious or even good quality care,” explains Todd B. Taylor, MD, FACEP, a Phoenix-based EMTALA compliance consultant.
Even if patients are aware of the possibility they might be stuck in an ED hallway for hours or days waiting for an available inpatient bed, it is unlikely they will ask direct questions about this possibility at triage. “Few patients are savvy enough to ask about ED boarding,” Taylor observes.
Some people do ask about wait times when presenting to EDs. However, there is no way to predict the wait time for any individual patient. “It depends on their individual issues and numerous other factors in the ED beyond everyone’s control. For this reason, most EMTALA experts advise against estimating the wait time,” Taylor says.
In the past, some EDs posted signs at triage stating current wait times to see a physician. “This has been determined by CMS [Centers for Medicare & Medicaid Services] to be problematic, if not an outright EMTALA violation. Things said verbally are much more difficult to track, but still ill-advised,” Taylor cautions.
Still, today, EDs in some regions post wait times online or on billboards. This is not an EMTALA issue because the individual has not yet arrived at the hospital, Taylor explains.
However, over the years, CMS has made statements at various presentations and discussions about the practice of posting ED wait times as a potential EMTALA violation. The concern is that posted wait times could discourage patients from staying for a medical screening exam.
“CMS also criticizes giving waiting times because new patients are constantly entering the ED queue, and priorities change based on triage assessments. The same can be said of comments pertaining to boarding,” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney.
If an individual asks if he will be stuck in the hallway for hours, and a triage nurse says that is likely, that person may decide to leave the ED.
“Even casual comments — ‘Sorry for the wait, we are really understaffed today’ — can cause someone to seek care at a different ED or even go home and die from a heart attack. This risk is more of an issue at triage, before being seen,” Taylor notes.
Are discouraging comments an EMTALA violation? It would depend on many factors, according to Frew. Investigators would examine factors such as what exactly was stated, under what circumstances the comment was made, whether the information was truthful and accurate, and whether it discouraged the patient from staying in the ED and receiving care.
“The investigators tend to rely heavily on the patient’s rendition of these elements,” Frew observes.
If the investigation concludes the patient did leave the ED because of the comment, it could result in a citation.
“But a determination that the situation is merely likely to discourage a patient from care could also result in a citation,” Frew warns. Frew says investigators are likely to view these types of comments as problematic in terms of EMTALA:
• Volunteering “helpful” information about where the patient could be seen quicker. For example, registration staff may comment, “You should go directly to St. Elsewhere, since we will just end up transferring you there.”
• Warnings about long waits. A triage nurse might say, “I could check you in, but you won’t be seen for four to six hours, if you are lucky.”
• Negative remarks on boarding occurring in the ED at the time the patient presents. “This will likely be considered ‘discouraging,’ unless it is preceded and followed by statements that the patient will be seen and should remain for medical screening,” Frew offers.
The tone and demeanor also can factor into whether abrupt comments made under stress are interpreted by investigators as discouraging, Frew adds.
Bitterman gives these examples of actual statements made by triage nurses that were scrutinized during EMTALA investigations:
• “Your baby looks fine now. Why don’t you see your doctor in the morning?”
• “Yes, we’re busy, but the urgent care clinic is right down the street.”
• “We don’t do pregnancy tests on request here. Why don’t you ask your doctor?”
These statements were made by security guards or volunteers:
• “The ED is very busy now. Why don’t you come back in the morning?”
• “We don’t have an OB unit here, but hospital A down the road does.”
If the hospital is under investigation because a patient left because of being discouraged by ED staff, it could generate another type of EMTALA citation. Since the person left the ED, investigators will examine whether the hospital obtained a written refusal of care (or documented reasonable efforts to do so), Frew warns.
EDs fielding questions about boarding at triage should bear in mind there is no way to give an accurate answer, according to Bitterman. At that point, the patient has not been examined. The exam, labs, and imaging studies could take many hours to complete.
“By that time, assuming they were not discharged and needed to be admitted, any existing boarding could be resolved or could have worsened,” Bitterman says.
In Bitterman’s experience, investigators consider the context and the exact language hospital staff members use when determining if comments constitute EMTALA violations.
“CMS and the courts have deemed such incidents as violations of EMTALA in the past,” Bitterman notes.
The more the ED staff member “encourages” someone to leave and seek care elsewhere, or unduly “discourages” them from staying, the more likely the statements will be determined to violate the law.
Some preparation can help EDs avoid becoming entangled in this issue. Scripted responses for all ED staff, including emergency physicians, is the best approach, according to Bitterman. Then, emergency care providers can use this language instead of “winging it” with off-the-cuff remarks.
“The proper response should be honest, yet not a ‘suggestion’ or ‘encouragement’ that the patient leave the ED,” Bitterman says.
An individual walking into the ED might take one look at a packed waiting room and ask someone, “How long is the wait right now? Should I leave and go to the local urgent care center?” The truth is, the clerk or the nurse does not know how long that individual will have to wait, since the ED prioritizes patients based on acuity. Bitterman offers this as a reasonable answer to this question: “Let’s get you triaged first to see what’s going on with you, and then we can give you a rough idea of how long the wait will be.”
After triage, the patient might ask for specifics on the wait time. “An honest response will provide a time range based on the patient’s triage classification, but does not encourage leaving or discourage staying,” Bitterman says. Bitterman offers these responses:
If the patient was triaged high-acuity (Level 1 or Level 2 on the Emergency Severity Index [ESI] five-level triage scale): “Not long. You’re sick, and we’ll take care of you quickly.”
If the patient was triaged as low-acuity (Level 4 or Level 5 on the ESI scale): “We see patients triaged like you in the order of arrival, which is taking about two to three hours right now. Please wait, and we’ll be happy to take care of you.”
“If patients decide to leave based on the information you’ve provided them, at their request — a rough idea of the waiting time — that’s their choice and their right,” Bitterman says.
If the patient is triaged as Level 3 on the ESI scale: “The doctor needs to examine you to see what’s wrong. Yes, we are somewhat behind right now, but please stay, and we’ll get to you as soon as we can.”
Level 3 patients could be quite sick, but are just not quite meeting the Level 2 criteria. “These are the tough ones,” Bitterman says. “You definitely do not want them to leave, but you should be honest when answering their questions, too.”
Bitterman says the best approach is to encourage the Level 3 patient to stay, while remaining somewhat vague about the time frame. For most patients, that answer will be satisfactory. However, if a patient really wants to know the expected wait time, Bitterman recommends responding by stating something like: “It’s about three to four hours right now. But that can change, and you really do need to see the doctor, so please wait.”
Preparing stock answers to questions about wait times can be an important factor in the hospital’s defense — either in an EMTALA investigation, or a malpractice lawsuit. “It demonstrates to CMS and the plaintiff’s bar that the hospital has considered the issue, and implemented measures to comply with EMTALA,” Bitterman asserts. “Preparation prevents pain.”
Are discouraging comments an EMTALA violation? Investigators would examine factors such as what exactly was stated, under what circumstances the comment was made, whether the information was truthful and accurate, and whether it discouraged the patient from staying in the ED and receiving care.
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