By Greg Freeman
EXECUTIVE SUMMARY
EMTALA continues to pose compliance challenges for hospitals. Best practices should focus on screening and proper transfer.
- Train frontline staff on EMTALA requirements.
- Refusing to accept patients can be an EMTALA violation.
- EMTALA can be part of a patient safety program.
EMTALA has encouraged the safe care of emergent patients since 1986, yet it still poses significant compliance challenges and hospitals are cited for violations. Understanding the potential pitfalls and best practices can help healthcare organizations avoid serious consequences.
Prompted by hospitals refusing to treat poor or uninsured patients, EMTALA has been a compliance challenge for years but recently became harder during COVID-19 and after the U.S. Supreme Court returned abortion enforcement to the states.
Risk managers and hospital administrators take EMTALA seriously, but it has become just one of many important compliance responsibilities in a highly regulated healthcare industry, says Susan Feigin Harris, JD, partner with Norton Rose Fulbright in Houston.
The law may seem relatively simple at first glance, but it becomes more complex when applying its requirements to actual situations in an ED. “EMTALA compliance arises in an emergency situation, or someone thinks it’s an emergency situation, so there’s already an increased emotional burden [and] increased urgency around it,” Harris says. “Then throw on top of all that that you might have someone new, or someone who’s rotating in, or someone who’s on call. The inherent difficulties are already baked in.”
An audit of EMTALA compliance should include assessing not just clinician knowledge and actions but also non-clinical staff, Harris says. Recording phone calls is a good first step for both auditing and providing evidence of how patient communication was handled.
“We tend to ignore or pay the least attention to the people who are your entry point — receptionists, people who answer the phone. Errors are made at that level,” Harris explains. “It is one thing to train your physician and people down the line when a patient comes in the door, but don’t forget the frontline — the people who are the first to interact with a patient in any way.”
If staff or frontline clinicians like nurses do not fully understand EMTALA requirements, they may just look at the facility’s capacity and make decisions to turn away patients without sending the question up the chain to see if there are ways to manage it, Harris notes.
Focus on Screening
A lot of EMTALA compliance depends on medical judgment. That means a robust screening process is the best defense, says Khaled John Klele, JD, partner with Riker Danzig in Morristown, NJ. This screening process should identify emergency medical conditions to ensure the patient is stabilized at discharge or to ensure the correct decision about whether the patient should be transferred.
“You then have the more serious issue, which is if a hospital is engaging in patient dumping, or what they call reverse patient dumping, which is refusing to accept patients,” Klele says. “Those are the more serious, and I think intentional, violations of EMTALA. The best way to address those violations is to have a robust compliance program and screening program, so that if there is an allegation of a violation, they can show the OIG [Office of Inspector General] and CMS [Centers for Medicare & Medicaid Services] that they do have this program in place to prevent these types of violations.”
Hospitals can find themselves caught between federal initiatives that sometimes seem to have conflicting goals, Klele says. The Medicare Shared Savings Program (MSSP) tries to reduce medical costs in part by reducing ED visits, but EMTALA requires treating all patients who present with an emergency medical condition.
“You have this sort of tension, and you have to sort of walk this line, and then on top of all that you have insurance carriers who as of late have been rejecting claims from the ED if they feel post facto that the patient really didn’t present with an emergency medical condition,” Klele notes. “You have a hospital that is sort of caught between a rock and a hard place. You want to comply with the MSSP to reduce ED visits to reduce overall medical costs, but if you don’t do it in the right way, you’re going to get whacked with an EMTALA violation.”
Even with proper screening and identification of an emergency condition, hospitals get in trouble for either transferring or discharging patients without stabilizing them properly, Klele says. In addition to complaints by patients and family members, it is not unusual for physicians and others in the facility to report EMTALA violations and participate in qui tam payouts.
Klele advises using checklists to optimize EMTALA screening. “The decision tree begins with: ‘Is it an emergency medical condition? Has the patient been stabilized? Does the patient require transferring?’” he explains. “Have that decision tree and a compliance program built around those questions. Use the checklist to make sure you’re giving providers a guideline of what EMTALA compliance requires in addition to what they know clinically.”
Technical Compliance Required
EMTALA and its regulations cover three basic parts regulating patient screenings, stabilization, and transfer, notes Karen Owens, JD, partner with Coppersmith Brockelman in Phoenix. Another contentious area of the law and regulations mandates hospitals to maintain call schedules of specialists to supplement the care provided by emergency services providers.
The structure of EMTALA eschews general principles such as “do not dump patients” in favor of technical compliance requirements such as “the transfer form must contain specifically delineated requirements,” Owens says. However, enforcement of EMTALA always involves actual or potential patient harm.
Despite their best efforts, several compliance components have proven particularly difficult for hospitals to meet. Owens offers these examples:
- Failure to adequately screen patients for emergency medical conditions. EMTALA is not a medical malpractice law, but there have been reported cases in which behavioral health patients have been refused a screening examination.
- Failure to stabilize patients determined to have an emergency medical condition. CMS typically undertakes a professional medical review of these cases.
- Failure to accept transfers of patients with emergency medical conditions. EMTALA requires a hospital receiving an improperly transferred patient to report to CMS.
- Failure of a scheduled on-call physician to come to the ED to evaluate or treat a patient.
“In recent years, patients presenting with behavioral health issues either exclusively or in addition to physical problems sometimes have led to violations like these,” Owens says. “ED staff have to use not only their clinical skills but skills in defusing anger, dealing with behavioral health illnesses, and the like.”
Owens says hospitals can avoid these recurrent issues in these ways:
- Structure ED services to comply with EMTALA. ED care and treatment should be structured so that there are adequate provider resources available to the ED on call, even when this means contracting with specialists, especially behavioral health specialists. The ED call schedule must be structured to ensure the on-call resources reflect the care and treatment available to inpatients. “Transfer and the receipt of transfers should be in the hands of the hospital, not solely on-call physicians, who might not understand the importance of accepting patients under EMTALA,” Owens says.
- Train, train, train. Education and training on EMTALA requirements should be mandated and repeated at reasonable intervals — not just for ED providers but all medical staff members who may serve on call. Guidance should be given to obstetrical providers, including OB nurses, as to the state’s parameters for patient care that might involve pregnancy termination.
- Monitor and address problems before they turn into reported events. The hospital’s quality assurance function should routinely watch for EMTALA problems and work with the medical staff or engage in training and counseling proactively.
“Interestingly, efforts to alleviate the ongoing problem of on-call physician failures to come to the hospital bring their own challenges. Many hospitals have alleviated the problem by contracting for specialist services on the on-call list,” Owens says. “However, physicians seeking to build or sustain a practice via ED call seem to be increasingly likely to insist that they have a ‘right’ to service on the on-call schedule. Hospitals should take care to include safeguards against these efforts, usually by provisions in the medical staff governance documents making clear that on-call service is not a ‘right.’”
Pillar of Patient Safety
Risk managers should look at EMTALA not as a burden to be accommodated but as a pillar of patient safety, says Lynne Rinehimer, a manager with symplr, a healthcare operations company based in Houston.
“If I was going to have a Mount Rushmore of healthcare compliance regulations, EMTALA would absolutely be on it along with HIPAA, the Stark Law, and Anti-Kickback Statute,” Rinehimer notes.
The standard requirements for EMTALA have not changed significantly since it was first enacted in 1986, Rinehimer says. That is beneficial, compared to some ever-changing requirements.
Under EMTALA, the hospital is required to provide a medical screening exam, if requested by the patient who presents at the ED, to determine if an emergency medical condition exists. If an emergency medical condition exists, treatment must be provided to stabilize the patient, or if the hospital cannot treat the patient, he or she must be appropriately transferred to another hospital.
There is no asking about payment or insurance before exam or treatment, no refusing to stabilize, and no refusing a transfer if the hospital has the ability to treat the patient when another hospital does not, Rinehimer explains.
However, Rinehimer says the Supreme Court’s overturning of Roe v. Wade with the decision in Dobbs v. Jackson Women’s Health Organization in June 2022 has added a new wrinkle to EMTALA, making it much less straightforward in the event of a pregnant patient presenting with a potentially life-threatening condition. The regulation of abortion was turned back to the states, which Rinehimer says has caused potential conflict between state law and EMTALA requirements and uncertainty on the part of healthcare institutions and providers regarding the emergency care that can be provided in these instances.
“The instructions provided by HHS [Department of Health and Human Services] in its July 2022 EMTALA Guidance seemingly contradict a number of state’s abortion laws, causing hesitancy and confusion on the part of hospitals in these circumstances. What happens when the appropriate form of treatment is abortion, with providers facing the risk of potential prosecution and revocation of their license?” Rinehimer asks. “CMS is currently probing several hospitals that refused to perform an abortion despite a patient’s life-threatening condition. There have been suits filed recently in Idaho, Tennessee, and Oklahoma, asking the state courts to put a hold on the state’s abortion laws and better clarify what are considered medical emergency exceptions.”
Risk managers must consider how to better ensure their compliance with EMTALA as a whole and in the specific scenarios involving pregnant patients. All things compliance start with policies and procedures.
The organization needs to review the EMTALA requirements, the guidance provided by HHS, specific state laws, and review and update existing policies and procedures accordingly, Rinehimer says. This should be a collaboration between compliance, legal, and medical staff leadership.
“Next, train your employee population on your EMTALA policies and procedures. Training should include, at a minimum, all individuals who work in the ED, including physicians, nurses, registration and other supporting staff, all individuals involved in facilitating or receiving transfers, and clinical leadership,” Rinehimer explains. “Ensure staff understand who they should reach out to if they have questions.”
Revisit EMTALA through in-services and ongoing training to reinforce requirements and address any new guidance, changes to state law, and litigation. Additionally, Rinehimer advises emphasizing the organization’s compliance hotline.
“An organization’s employee population is its first line of defense. If employees identify behavior that goes against what they have been trained — perhaps not accepting a transfer or not providing stabilizing treatment — employees need to be aware of how this can be reported and that there will not be retribution for making a report,” Rinehimer says. “Additionally, ensure that visitors to the ED are made aware of how they can submit complaints to the hospital.”
Investigate, document, and develop corrective action plans as necessary for all complaints, whether submitted by employees, patients, or visitors, Rinehimer says.
Antidiscrimination Is Goal
EMTALA, at its heart, is an antidiscrimination statute, says Michelle A. Williams, JD, senior counsel with Baker Donelson in Atlanta. It is a federal law, and several states have enacted similar laws.
“Many people, including patients, CMS surveyors, and healthcare providers mistakenly expand what I think is a very narrow mandate: Provide emergency care to patients when needed, as best one can, without regard to ability to pay, and in a non-discriminatory manner,” Williams says. “EMTALA is not a medical malpractice statute. It is not a cudgel to pit providers one against another. It is not a government enforcement mechanism designed to address every type of care issue.”
For the most part, the legal definitions in EMTALA make sense from a medical perspective, Williams says. For example, an “emergency medical condition” under EMTALA is “a condition … of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health [or the health of an unborn child] in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.”1 Most clinicians would agree this legal definition closely mirrors the medical definition of “emergency medical condition,” she says.
“Where the definitions fall apart is with the concept of stabilization — and getting a patient to stabilization is key,” Williams notes. “Once a patient is stabilized, a provider’s EMTALA obligation is concluded. The provider may have other legal, medical, and ethical obligations, but those under EMTALA are concluded.”
Accordingly, the difficult question is: What is “stabilization”? That is where the law and medicine often disagree, Williams notes. How stabilization is achieved and reflected in the medical record is the source of many EMTALA complaints to CMS.
An area of concern is reverse dumping or not properly accepting or denying a transfer request, Williams says. Denials of transfer requests can be fraught with risk; however, every denial of a transfer request from one hospital to another is not an EMTALA violation. Another risk area is staff reaction to a patient surge situation without following their chain of command or escalation process. For example, a nurse directing an ambulance not to offload a patient because the ED is full can be problematic.
Most of Williams’ EMTALA work occurs after a hospital receives a Survey Statement of Deficiencies with a Letter of Termination from the Medicare program. This is an enforcement action which, if carried out, few hospitals could survive.
Risk managers can help avoid that situation by educating themselves on the different phases of EMTALA enforcement actions, Williams says. EMTALA enforcement does not end with submitting an acceptable Plan of Correction.
It also is important to review and revise policies, procedures, and forms, especially around surge plans and the mechanics of the transfer center. Interviewing and testing staff on EMTALA also is vital.
Draft an organized peer review and audit program, Williams advises. It is not just counting incidents but truly evaluating transfer requests, patients leaving the ED without being seen, diversion status, surges, and physician on-call compliance.
Since COVID-19, many hospital EDs are full and over census, and violence against healthcare workers is increasing, notes Williams, who previously worked in healthcare. Those factors can increase pressure on ED staff and may lead to mistakes even from the most well-meaning clinicians and staff.
“The challenge is not EMTALA. EMTALA is a one-patient-complaint-at-a-time enforcement process,” Williams says. “The challenge for all hospitals is to be part of a well-functioning pre-hospital and post-hospital stream of patient care and to get funded for the significant amount of uncompensated care they provide each and every day. As hard as it is to get a patient accepted in transfer, it is just as hard to discharge them to the correct care setting and free beds for patients.”
REFERENCE
- American College of Emergency Physicians. Understanding EMTALA. 2023.
SOURCES
- Susan Feigin Harris, JD, Partner, Norton Rose Fulbright, Houston. Phone: (713) 651-5377. Email: [email protected].
- Khaled John Klele, JD, Partner, Riker Danzig, Morristown, NJ. Phone: (973) 451-8451. Email: [email protected].
- Karen Owens, JD, Partner, Coppersmith Brockelman, Phoenix. Phone: (602) 381-5463. Email: [email protected].
- Lynne Rinehimer, symplr, Houston. Phone: (281) 863-9500.
- Michelle Williams, JD, Senior Counsel, Baker Donelson, Atlanta. Email: [email protected].
EMTALA has encouraged the safe care of emergent patients since 1986, yet it still poses significant compliance challenges and hospitals are cited for violations. Understanding the potential pitfalls and best practices can help healthcare organizations avoid serious consequences.
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