|
EMTALA:
A general guide for the physician assistant
http://www.jaapa.com/
Lynn A.
Lavia, PA-C, MA, PhD
September
2002
Dr. Lavia
works in the emergency department at Hutchinson Hospital,
Hutchinson, Kan. Ms. Gara is vice president of government and
professional affairs at the AAPA.
A Lansing,
Mich, man has sued a hospital because he was banned from its
outpatient dialysis center.1 His suit stated that
without dialysis he would die, making it an emergency situation,
and that the hospital was therefore in violation of the Emergency
Medical Treatment and Labor Act (EMTALA)2
because the law requires a hospital to provide treatment for
emergency medical conditions.
This case
presents another twist in the continually evolving application of
EMTALA,
a federal law written to prevent patient dumping by hospitals but
that now dictates the basic protocol of how a health care facility
evaluates and transfers emergency patients. While the Michigan
case seems unique, it reveals yet another example of how difficult
it is to comply with the law—a problem faced by hospitals, their
emergency departments (EDs), and their staffs, which often include
PAs.
This
article discusses the basic principles of
EMTALA
as well as legal terms arising from it: the emergency medical
condition (EMC), the medical screening exam (MSE), stabilization,
and transfer.
EMTALA enforcement policies and some case examples of
fines levied are also described.
The
EMTALA
law
EMTALA
is part of a larger set of laws enacted in 1986 called COBRA
(Consolidated Omnibus Budget Reconciliation Act)3,4 and
includes various later updates and changes based on amendments,
regulations, and judicial decisions. In the 1980s, concerns
surfaced that some EDs were transferring critically ill patients
to other facilities for reasons that could put patient health at
risk—transfers referred to as patient dumping. EDs were accused of
inadequate evaluation of patients, transferring for nonmedical
reasons, failing to obtain informed consent for treatment or
transfers, failing to warn the receiving hospital that the patient
was coming, and failing to send copies of medical records with the
patient during transfer—with the result that receiving hospitals
would often have to begin patient evaluation anew. Congress passed
EMTALA
in response to such concerns.
Any
hospital that accepts Medicare certification agrees to abide by
EMTALA
regulations. The law is summarized as follows: Anyone who is on
the premises of the hospital and requests emergency care is
entitled to evaluation. Usually, "premises" means the ED, but it
may also include the driveway, other parts of the hospital (within
250 yards of the main buildings), and associated clinics, as well
as ambulances (whether or not they are owned by the hospital).5
When a
patient claims to have an EMC, the ED must perform an adequate MSE
to determine if an EMC exists. If an EMC is diagnosed, the patient
must be stabilized, possibly requiring the help of
hospital-associated (on call) physicians. Under appropriate
conditions, a transfer is made, either as a discharge from the
hospital or, if necessary, to an appropriate receiving hospital,
with appropriate documentation. These services must be well
advertised (posted signs in the ED area must advise that EMCs will
be evaluated and treated). While
EMTALA
is aimed at the treating hospital and physician, the PA, acting as
an agent of the physician and/or the hospital, also falls under
EMTALA
governance.6
The EMC
and MSE
EMTALA
defines an EMC as a "medical condition with sufficient severity
(including severe pain, psychiatric disturbances, symptoms of
substance abuse, pregnancy/active labor) such that the absence of
immediate medical attention could place the individual's health at
risk."2,7 Note that psychiatric as well as medical
emergencies are included, and thus
EMTALA
applies to situations where patients admit to suicidal or
homicidal thoughts. For such patients, a psychiatric evaluation
may be required in addition to a medical exam to determine if the
person's health is at risk.
The MSE is
the "process required to reach with reasonable clinical confidence
the point at which it can be determined whether a medical
emergency does or does not exist."2,7 Note the term
process. The MSE requires a history and physical examination,
along with appropriately ordered tests available at the
institution, and is an ongoing process that continues until it has
been determined that the patient either does have an EMC or does
not.
The MSE is
not the same as an ED triage. Mere log-in at the ED and triage by
the nursing staff does not meet the
EMTALA
MSE requirement. The MSE must also be performed before information
about a patient's insurance status is attained.
A violation
is more likely to be assessed if there is "a disparity in
screening or treatment or deviation from existing procedures."8
One of the most common violations of
EMTALA
is an institution's failure to provide an adequate and timely MSE.
The MSE must be provided for all patients to the same level of
standard of care. That is, if the clinician performs an MSE on
some patients, the provider must perform an MSE on all patients,
regardless of insurance or other status.
The
hospital bylaws must specify who performs the MSE, either a
physician or "other qualified medical person."2,7 A PA
(or other nonphysician clinician), if specified in hospital
bylaws, is able to perform the MSE. At the University of
California-Davis, experienced ED nurses have been trained to
perform this function using certain protocols.9
Once the
MSE and workup have been performed and the condition has been
stabilized or the patient is determined not to have an EMC,
EMTALA
requirements are met. Although the hospital staff is required to
perform an MSE, the results are not subject to
EMTALA.
Take the example of a 21-year-old woman with abdominal pain who
presents to the ED and is given an appropriate MSE. She has
appendicitis, but clinicians conclude incorrectly that she has
ovarian pain. As long as an appropriate MSE was performed,
EMTALA
requirements are fulfilled—even if misdiagnosis occurs. Note too,
however, that even when
EMTALA
regulations have been satisfied, other problems (such as a
malpractice suit) can still arise as a result of misdiagnosis.
Stabilization and transfer
The legal
definition of stabilization according to
EMTALA
is to "provide such medical treatment of the EMC necessary to
assure within reasonable medical probability that no material
deterioration of the condition is likely to result."2,7
The MSE
will have one of three results: No EMC is found, an EMC is
diagnosed but the patient is stable, or an EMC is diagnosed and
the patient is unstable. In the first case, the facility's
obligation under
EMTALA
is satisfied. The provider provides appropriate treatment and
discharges the patient. In the second case, the patient may be
discharged, admitted as needed, or transferred to a receiving
hospital, if required, for definitive treatment that is not
available at the examining hospital. (In the case of transfer,
appropriate
EMTALA papers need to be filled out.) In all three
cases, the
EMTALA obligation is satisfied.
When the
patient has an unstable EMC, ED clinicians may be able to
stabilize the condition; if so, the
EMTALA
obligation ends. If stabilization attempts fail, however, the
patient may require transfer to a second hospital where space is
available and a specialist can provide definitive treatment. This
will fulfill the
EMTALA
obligation provided that the benefits of transfer outweigh the
risks and that paperwork is filled out to that end. The paperwork
must specify the benefits and risks of transfer and be signed by
the patient and provider. If a PA signs this form, he or she must
do so under instruction from the supervising physician, who must
then sign the form within 24 hours. The hospital must send ED
records and copies of diagnostic workups to the receiving hospital
along with the patient. Although not specified in
EMTALA,
under advanced trauma life support (ATLS) guidelines appropriately
trained personnel must be available for transfer. If none are
available, then a nurse or other medical provider not trained in
ATLS must accompany the patient.10 Two other
alternatives are allowable under
EMTALA
in the case of the unstable patient. The patient still has the
right to sign out against medical advice, or the patient or a
person acting for the patient may submit a written request for
transfer to another facility.
The
physician-on-call list kept by the ED is also addressed under
EMTALA
regulations. Physicians on this list must come in as requested by
the ED provider or be subject to
EMTALA
fines.2,7 In addition, a PA-on-call list can be kept
(as specified by hospital regulations); PAs on this list called in
to evaluate and stabilize a patient must decide if the on call
physician should come in to assess the patient in the ED. If the
ED provider requests the presence of the on call provider and he
or she refuses to come in, this needs to be documented in the ED
records. The on call provider may be charged with
EMTALA
violations.
The
Department of Health and Human Services (HHS) Centers for Medicare
and Medicaid Services (CMS, previously HCFA) is currently
evaluating the appropriate use of on call lists and attempting to
answer questions that have arisen. One being addressed is how
often in a week someone may be on call, for example, in a small
town, where the provider may be the only specialist available.
When no specialist provider is available to a hospital and the
hospital thus cannot provide a certain service, all patients
needing emergency care for that service must be transferred or
diverted regardless whether the primary care provider of the
patient is on staff at the hospital.
Enforcement of
EMTALA
regulations
The
regional offices of CMS investigate complaints of
EMTALA
violations. Confirmed violations are forwarded to the HHS Office
of the Inspector General (OIG) to determine whether a fine should
be levied. Additionally, private persons may bring lawsuits based
on an
EMTALA
violation. CMS fines may be up to $50,000 per violation and
include termination of the Medicare provider status of both the
offending hospital and the providers violating the
EMTALA
statute. Receiving hospitals are required to report violations
occurring in transferring hospitals within 72 hours or face fines
of up to $50,000 as well. There is a 2-year statute of limitations
for reporting
EMTALA violations.
Only four
hospitals have been terminated from the Medicare program because
of
EMTALA
violations, all more than 11 years ago; two of these hospitals
were later reinstated.4 On average, about 400
investigations of alleged
EMTALA
violations occur each year, with an average of 200 investigations
resulting in confirmed violations.
Hospitals
(not physicians or other providers) may be named as defendants in
lawsuits that claim
EMTALA
violations. While physicians and PAs cannot be sued under
EMTALA,
plaintiff attorneys may include them in their suits initially.
This technique is a way to exert pressure for a quick settlement
since defendants may fear (unnecessarily) that a $50,000 fine that
would not be covered by malpractice insurance will be levied
against them.
A recent
report by the General Accounting Office on the effect of the
EMTALA
regulations on patient dumping was published in June 2000.4
This report cited evidence that patient dumping had decreased
since the law was enacted, but it noted a large increase in ED
patient visits during the same period. Some of this increase may
result from the law itself, but some also may be due to an
increase in the numbers of uninsured patients seen by the nation's
EDs.4
Advocacy
groups for patients' rights are becoming more prominent and vocal
in the United States. Some consumer groups have begun to publish
information on the Internet about the
EMTALA
compliance of physicians and hospitals. One Web site, for example,
lists 527 confirmed
EMTALA
violations at hospitals between 1997 and 2001 and notes that one
in five US hospitals has been cited for
EMTALA
violations since 1988 (
www.citizen.org/ ). Some hospitals are
now beginning to distribute patient rights brochures, which detail
what each patient should expect when visiting the hospital. The
distribution of these brochures appears to be a response to
growing emphasis on patient rights and the dissemination of
EMTALA
information and increased
EMTALA
violation assessments.
REFERENCES
1. Martin
T. Lansing man challenges ban at Sparrow. Lansing State
Journal. January 3, 2002.
2.
EMTALA
statute: 42 USC 1395dd.
3.
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA),
99-272, p. 2.
4.
Emergency Care:
EMTALA
Implementation and Enforcement Issues, United States General
Accounting Office, June 2001, p 1.
5.
Arrington v Wong. US Court of Appeals, 9th Circuit, argued and
submitted July 12, 2000; San Francisco, Calif.
6. Gore CL.
A physician's liability for mistakes of a physician assistant.
J Leg Med. March 2000;21:125-142.
7. State
operations manual for enforcement of 42 CFR 489-24. Appendix V,
V-20. Health Care Financing Administration
8. King ML,
Pewarson H. Other regulations:
EMTALA:
What Compliance Officers Need to Know. The 4th Annual National
Congress on Health Care Compliance; April 23, 2001; Washington,
DC.
9. Derlet
RW, Kinser D, Ray L, et al. Prospective identification and triage
of nonemergency patients out of an emergency department: a 5-year
study. Ann Emerg Med. 1995;25:215-223.
10.
Stabilization and transport. In: Advanced Trauma Life Support.
5th ed. Chicago, Ill: American College of Surgeons; 1994:296-298.
Lynn
Lavia. Professional Practice:
EMTALA:
A general guide for the physician assistant. JAAPA
2002;9:15-19.
Copyright © 2002, Medical Economics Company, Inc. and the American
Academy of Physician Assistants. Published by Medical Economics
Company, Inc. at Montvale, NJ 07645-1742. All rights reserved.
|
