EMTALA update - What’s changed and what hasn’t – Part II

Gerard X. Brogan, Jr., MD FACEP, Director, Department of Emergency Medicine, North Shore University Hospital at Plainview

Several specific situations, however infrequent, may cause confusion regarding EMTALA guidelines and present instances where the EMTALA law might be unintentionally violated.

Scheduled visits and outpatient testing
The following scenarios will highlight the important issues involving the emergency department EMTALA and outpatient testing or scheduled visits. If a patient is scheduled for a test or enters the emergency department in order to access an outpatient service (unfortunately, many hospitals, after hours, encourage patients to enter through the emergency department entrance for security purposes) and that patient presents to emergency department personnel specifically requesting directions to the outpatient lab or outpatient service area, that patient should be logged as presenting for a scheduled visit outside the ED area and no medical screening exam or other EMTALA requirements apply. The proper care of the patient, as always, is governed by Medicare Co-Ps only.
Now, if the same patient comes into the emergency department and comments that they are not doing well and either state that they need help or clearly appear to have an acute problem, EMTALA is activated and a full triage, mental screen exam and all other EMTALA requirements apply. Now if the same patient came into the emergency department solely requesting directions to the outpatient testing area, but is observed to be having difficulty breathing or is pale and diaphoretic, EMTALA would be triggered and triage, medical screening exam and all EMTALA requirements apply. The critical distinction is that even if the patient presents to the emergency department not requesting emergency services, but their presentation would cause a reasonably prudent lay person to think that the patient needs assessment, the EMTALA guidelines are triggered.

However, if a patient comes through the emergency department, is registered for an outpatient procedure (such as a pre-ordered feeding tube change or trach tube change) and during that procedure the patient develops an acute medical problem (such as acute respiratory distress or severe abdominal pain) such that the patient is returned to the emergency department for emergency care, EMTALA would not be triggered and the only protection for the patient would be the Medicare Co-Ps.

Occasionally, patients present and request a non-emergency service. This may be either a note to return to work, immunization that is routinely scheduled or a school physical. CMS has commented that “in most cases in which a request is made for medical care that clearly is unlikely to involve an emergency medical condition, an individual’s statement that he or she is not seeking emergency care, together with brief questioning by qualified medical personnel, would be sufficient to establish there is no emergency medical condition and that the hospital’s EMTALA obligation would thereby be satisfied.” This statement not only suggests but clearly indicates that some type of mechanism must be in place in order to log and archive such visits. This documentation must be sufficient, such that upon scrutiny, it would be clear that the patient is not requesting emergency care and that appropriate questioning has occurred.

A recent example where a hospital was cited for an EMTALA violation helps to illustrate the above issues. Recently, a patient presented to an emergency department stating that she was not feeling well and requested a pregnancy test. The emergency department referred her to the outpatient testing area. The emergency department was under the impression that this patient was not seeking emergency medical care, simply a pregnancy test, and therefore would not trigger EMTALA. CMS disagreed with this interpretation. The basis for their disagreement was that the patient stated that she was “not feeling well” and that this constituted a request for care. In fact, the patient’s suggestion or implication that pregnancy was the possible source of her not feeling well was not sufficient or appropriate for a determination to be made that the presenting complaints were not emergent in nature, or potentially emergent.

Occasionally, the question arises as to whether a complete set of vital signs need to be obtained in order to provide an appropriate medical screening exam. CMS has stated “the extent and quality of the screening by the qualified medical personnel would be subject to review by state surveyors to permit determination to be made as to whether there was an EMTALA violation.” State laws or regulations also govern necessary standards of ED nursing care in triage. Unless there is documentation that non-emergency services were requested, it would be foolhardy to do a triage or medical screening exam without a full set of vitals on intake, during extended waiting periods, as needed during ongoing care and prior to discharge or transfer.

If upon completion of an appropriate medical screening exam it is determined that the patient does not present an emergency medical condition, the emergency department may refer a patient for follow-up care. EMTALA does not specifically control follow-up care. However, CMS has clearly stated that “good standards of practice would dictate that any qualified medical personnel screening a patient, would refer the patient elsewhere for treatment for his/her obvious medical condition, rather than simply sending him/her out of the emergency department upon finding out that he/she did not have an emergency medical condition.”

Ambulance rule
CMS’s position regarding EMS services was also clarified in the most recent revisions. CMS will recognize community EMS plans and state trauma rules as exceptions to the “ambulance rule.” Ambulances and aircraft owned and operated by hospitals must bring patients to the home hospital for medical screening and evaluations. The exception allows a patient to go to another facility under these circumstances:
1. The ambulance is following preset community-wide EMS criteria or protocols and as a result transports the patient to another facility (the receiving facility assumes responsibility for the patient at the time the patient arrives).
2. The ambulance is operating under medical director protocols or direction that establishes the proper destination for the patient if the medical director is not employed by or affiliated with the home hospital.
3. The ambulance is honoring the refusal of a patient to go to the home hospital when the refusal is properly documented.

Although an infrequent occurrence, it is important to know that the EMTALA guidelines do state that an ambulance on hospital grounds, even via error, triggers EMTALA in that even if a hospital diverts an ambulance due to bypass status, the hospital must accept the patient if the ambulance chooses to transport the patient to them anyway.
Lastly, an ambulance may need a helicopter and a hospital helipad for the purpose of transporting the patient without triggering EMTALA, unless the crew asks for medical assistance from the hospital. If assistance is requested, the helipad hospital becomes fully responsible and EMTALA is activated.

Disasters
CMS has stated that in the case of a national emergency, EMTALA citations and fines will not apply. However, local or regional disasters may or may not enjoy the same exempt status. Specifically, EMTALA states “sanctions under EMTALA for an inappropriate transfer during a national emergency do not apply to a hospital with a dedicated Emergency Department located in an emergency area, as specified in Section 1135 (g) (1) of the Act. In the event of such a national emergency, CMS would issue appropriate guidance to the hospitals.”

At the risk of appearing as if all of the preceding EMTALA discussion has resulted in some personal cognitive dysfunction, may I suggest you read through the Tuesday, September 9, 2003 Federal Register (not all 42 pages) to see the various comments and responses by CMS. Most of the major comments received by CMS as well as their response are delineated within the document.

This article and it’s Part I counterpart were intended to provide useful guidance and illustrate some high risk areas for practicing emergency physicians.

Please contact New York ACEP by phone, in writing or on the web if you have additional questions or are aware of specific cases that would be appropriate to highlight in future issues of the EPIC.