Emergency Medical Treatment and Labor Act (EMTALA)

How to avoid an investigation andbeing a story I tell.

Emergency Medical Treatment and Labor Act (EMTALA)

How to avoid an investigation andbeing a story I tell.

David WrightCenters for Medicare and Medicaid

Services (CMS)

Dallas Regional Office

Arkansas Hospital Association

April 23, 2015

David WrightCenters for Medicare and Medicaid

Services (CMS)

Dallas Regional Office

Arkansas Hospital Association

April 23, 2015

Civil Liability versus Administrative Enforcement

Civil Liability versus Administrative Enforcement

Two Year statute of Limitations on Civil Cases alleging EMTALA Violation

CMS not involved, complainant not required to file complaint or have substantiated violation

Two Year statute of Limitations on Civil Cases alleging EMTALA Violation

CMS not involved, complainant not required to file complaint or have substantiated violation

EMTALA-Related RequirementsEMTALA-Related Requirements

EMTALA Compliance Plan Reporting Requirement Signage Medical Records Requirement On-Call Physician List Central Log

EMTALA Compliance Plan Reporting Requirement Signage Medical Records Requirement On-Call Physician List Central Log

Reporting RequirementReporting Requirement Report to CMS or the state any

time you have reason to believe the hospital received an individual who has been transferred in an unstable emergency medical condition from another hospital, in violation of the transfer requirements (489.24(d)).

Report to CMS or the state any time you have reason to believe the hospital received an individual who has been transferred in an unstable emergency medical condition from another hospital, in violation of the transfer requirements (489.24(d)).

SignageSignageIt’s the law!

If you have a Medical Emergency or are in labor, you have the right to receive, within the capabilities and capacity of this

hospital’s staff and facilities:

An Appropriate medical screening examination.

Necessary stabilizing treatment (including treatment for an unborn child) and, if necessary, an appropriate transfer to

another facility.

Even if you cannot pay or do not have medical insurance or you are not entitled to Medicare or Medicaid.

This hospital does / does not participate in Medicaid.

It’s the law!If you have a Medical Emergency or are in labor, you have the

right to receive, within the capabilities and capacity of this hospital’s staff and facilities:

An Appropriate medical screening examination.

Necessary stabilizing treatment (including treatment for an unborn child) and, if necessary, an appropriate transfer to

another facility.

Even if you cannot pay or do not have medical insurance or you are not entitled to Medicare or Medicaid.

This hospital does / does not participate in Medicaid.

Medical Records RetentionMedical Records Retention

The hospital must maintain medical and other records related to individuals transferred to or from the hospital for a period of five years from the date of the transfer.

The hospital must maintain medical and other records related to individuals transferred to or from the hospital for a period of five years from the date of the transfer.

On-Call PhysiciansOn-Call Physicians Ensure ED is prospectively aware of

which physicians, including specialists and sub-specialists are available to provide treatment necessary to stabilize individuals with emergency medical conditions.

Hospital must determine and enforce response times.

Physician must come in, cannot refer patient with emergency medical condition to private physician’s office.

Ensure ED is prospectively aware of which physicians, including specialists and sub-specialists are available to provide treatment necessary to stabilize individuals with emergency medical conditions.

Hospital must determine and enforce response times.

Physician must come in, cannot refer patient with emergency medical condition to private physician’s office.

On-Call ContinuedOn-Call Continued Hospital Discretion, Simultaneous call,

Elective Surgery Still must provide for emergency

services if physician unavailable due to elective surgery or simultaneous call

If on-call chooses to send non-physician practitioner, treating physician may still request on-call present in person.

Hospital Discretion, Simultaneous call, Elective Surgery

Still must provide for emergency services if physician unavailable due to elective surgery or simultaneous call

If on-call chooses to send non-physician practitioner, treating physician may still request on-call present in person.

Central LogCentral Log To track the care provided to

each individual who comes to the hospital seeking care for an emergency medical condition, including whether the individual refused treatment, was refused treatment, admitted, treated, stabilized, transferred or discharged.

To track the care provided to each individual who comes to the hospital seeking care for an emergency medical condition, including whether the individual refused treatment, was refused treatment, admitted, treated, stabilized, transferred or discharged.

EMTALA RequirementsEMTALA Requirements

Screening

Stabilizing Treatment

Delay in examination or treatment

Appropriate Transfer

Recipient Hospital Responsibilities

Screening

Stabilizing Treatment

Delay in examination or treatment

Appropriate Transfer

Recipient Hospital Responsibilities

ScreeningScreening Determine presence/absence of

emergency medical condition. Performed by Qualified Medical

Personnel. EMTALA applies until patient

stabilized or determination that there is no emergency medical condition.

Determine presence/absence of emergency medical condition.

Performed by Qualified Medical Personnel.

EMTALA applies until patient stabilized or determination that there is no emergency medical condition.

Screening Cont’dScreening Cont’d Present to Dedicated ED (Licensed, Held Out,

1/3 Presentations-calendar year) Request for

Medical Treatment only. Everyone must be

screened.

Non-Dedicated ED-Request for Emergency

Medical Treatment only (Prudent Layperson

standard)

Eliminates application to non-emergency off-

campus sites.

Parking of EMS patients. Must still be

assessed upon presentation

Present to Dedicated ED (Licensed, Held Out,

1/3 Presentations-calendar year) Request for

Medical Treatment only. Everyone must be

screened.

Non-Dedicated ED-Request for Emergency

Medical Treatment only (Prudent Layperson

standard)

Eliminates application to non-emergency off-

campus sites.

Parking of EMS patients. Must still be

assessed upon presentation

FAMILY LAWYER: HOSPITAL WORKER STEPPED OVER DEAD PATIENT DAYS

BEFORE BODY WAS DISCOVERED The Los Angeles Times (10/24, Dolan) reports on allegations that a hospital employee in San Francisco saw the body of a patient lying in an “emergency stairwell” and stepped over it days before the fatality was discovered. Haig Harris, an attorney representing the deceased patient’s family, says he was informed that the hospital employee saw the body of Lynne Spalding, 57 and reported it to a nurse, though it is unclear why it took days for anyone to take action.

FAMILY LAWYER: HOSPITAL WORKER STEPPED OVER DEAD PATIENT DAYS

BEFORE BODY WAS DISCOVERED The Los Angeles Times (10/24, Dolan) reports on allegations that a hospital employee in San Francisco saw the body of a patient lying in an “emergency stairwell” and stepped over it days before the fatality was discovered. Haig Harris, an attorney representing the deceased patient’s family, says he was informed that the hospital employee saw the body of Lynne Spalding, 57 and reported it to a nurse, though it is unclear why it took days for anyone to take action.

Stabilizing TreatmentStabilizing Treatment

Within capability and capacity of hospital, must ensure that: the Emergency Medical

Condition is removed, or the patient is Stable for

Discharge

Within capability and capacity of hospital, must ensure that: the Emergency Medical

Condition is removed, or the patient is Stable for

Discharge

Stabilizing TreatmentStabilizing Treatment EMTALA obligation ends when patient

admitted as inpatient, even if not

stabilized.

Expectation of overnight stay.

EMTALA obligation ends when patient

admitted as inpatient, even if not

stabilized.

Expectation of overnight stay.

Delay inExamination or Treatment

Delay inExamination or Treatment

Hospital may not delay providing an appropriate medical screening examination in order to inquire about the individual’s method of payment or insurance status.

Hospital may not delay providing an appropriate medical screening examination in order to inquire about the individual’s method of payment or insurance status.

Delay Cont’dDelay Cont’d Prior Authorization explicitly prohibited until

after screening and initiation of stabilizing

treatment

Reasonable registration, including insurance

information, allowed.

Prior Authorization explicitly prohibited until

after screening and initiation of stabilizing

treatment

Reasonable registration, including insurance

information, allowed.

Reason for TransferReason for Transfer

Patient request (in writing, with risk / benefit understanding).

Physician certification that benefits outweigh the risks.

Patient request (in writing, with risk / benefit understanding).

Physician certification that benefits outweigh the risks.

Appropriate TransferAppropriate Transfer

Transferring hospital minimizes risks (within capability and capacity).

Receiving facility agrees to accept. Transferring hospital sends all

medical records. Transfer effectuated with appropriate

personnel and transportation.

Transferring hospital minimizes risks (within capability and capacity).

Receiving facility agrees to accept. Transferring hospital sends all

medical records. Transfer effectuated with appropriate

personnel and transportation.

Recipient Hospital Responsibilities

Recipient Hospital Responsibilities

Participating hospitals with specialized capabilities may not refuse a request for an appropriate transfer of an individual requiring that capability if the facility has the capacity to treat the individual.

Participating hospitals with specialized capabilities may not refuse a request for an appropriate transfer of an individual requiring that capability if the facility has the capacity to treat the individual.

Recipient Hosp Resp Cont’dRecipient Hosp Resp Cont’d Capability or Capacity only reason for

refusal of transfer request under EMTALA This requirement applies to any

participating hospital with specialized capabilities, regardless of whether the hospital has a dedicated emergency department.

Capability or Capacity only reason for refusal of transfer request under EMTALA

This requirement applies to any participating hospital with specialized capabilities, regardless of whether the hospital has a dedicated emergency department.

Don’t be this hospital…Don’t be this hospital…

EMTALA and Ebola

Or these hospitals…Or these hospitals…

This really happened…This really happened… Patient presented with abdominal

cramps and fever to large urban hospital. Despite no recent travel history, hospital staff were concerned patient may have Ebola. Drew blood for testing only to rule out Ebola. Refused to perform any other screening, testing, or treatment of patient’s symptoms until patient was confirmed negative for Ebola.

Patient presented with abdominal cramps and fever to large urban hospital. Despite no recent travel history, hospital staff were concerned patient may have Ebola. Drew blood for testing only to rule out Ebola. Refused to perform any other screening, testing, or treatment of patient’s symptoms until patient was confirmed negative for Ebola.

This JUST happened…This JUST happened… EMS transported a febrile prisoner who had recently arrived

from the Congo (declared Ebola-free and off CDC heightened precautions list since November 2014)

EMS called State Public Health office enroute and State Epidemiologist on-call cleared this patient as potential Ebola.

Upon arrival at the hospital, EMS was met by hospital security (off-duty sheriff’s deputies) who ordered the crew and patient, through the squad car PA system, to stay in the ambulance.

The hospital then called the State Public Health Office, which again confirmed the patient was cleared as potential Ebola. Further calls from the State to the ED were not successful.

After an hour, the ambulance was ordered moved to the back of the hospital, but required to remain inside.

After an hour and 48 minutes, patient was allowed into the hospital, placed in isolation received an initial screening.

EMS transported a febrile prisoner who had recently arrived from the Congo (declared Ebola-free and off CDC heightened precautions list since November 2014)

EMS called State Public Health office enroute and State Epidemiologist on-call cleared this patient as potential Ebola.

Upon arrival at the hospital, EMS was met by hospital security (off-duty sheriff’s deputies) who ordered the crew and patient, through the squad car PA system, to stay in the ambulance.

The hospital then called the State Public Health Office, which again confirmed the patient was cleared as potential Ebola. Further calls from the State to the ED were not successful.

After an hour, the ambulance was ordered moved to the back of the hospital, but required to remain inside.

After an hour and 48 minutes, patient was allowed into the hospital, placed in isolation received an initial screening.

EMTALA/Ebola Guidance November 21,2014

EMTALA/Ebola Guidance November 21,2014

S&C 15-10 EMTALA requirements and implications related for Ebola

http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-10.pdf

S&C 15-24 EMTALA and Ebola– Questions and Answers

http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-24.pdf

S&C 15-10 EMTALA requirements and implications related for Ebola

http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-10.pdf

S&C 15-24 EMTALA and Ebola– Questions and Answers

http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-24.pdf

Screening for EbolaScreening for Ebola Every hospital is required to perform a

screening examination within their capability and capacity

Every hospital has the capability to isolate a patient who meets the screening criteria to be a potential Ebola case

Contact local or state public health authorities to determine if Ebola testing is needed

If so, continue to provide treatment for the patient’s symptoms while awaiting the outcome of the test.

Every hospital is required to perform a screening examination within their capability and capacity

Every hospital has the capability to isolate a patient who meets the screening criteria to be a potential Ebola case

Contact local or state public health authorities to determine if Ebola testing is needed

If so, continue to provide treatment for the patient’s symptoms while awaiting the outcome of the test.

What does all of that really mean?

What does all of that really mean?

You have to provide a screening exam to everyone, taking whatever precautions may be necessary. NOT providing screening is NOT a necessary precaution.

Coordinate with local and state health departments. It works both ways…we’ll give great consideration to what they want you to do. But if they say Ebola is not in play, you have to give that the same amount of credence.

Continue to treat the symptoms. You CAN set up an alternate screening location

somewhere on your hospital property. Just because you’re not a designated Ebola treatment

center doesn’t mean you don’t have to deal with this.

You have to provide a screening exam to everyone, taking whatever precautions may be necessary. NOT providing screening is NOT a necessary precaution.

Coordinate with local and state health departments. It works both ways…we’ll give great consideration to what they want you to do. But if they say Ebola is not in play, you have to give that the same amount of credence.

Continue to treat the symptoms. You CAN set up an alternate screening location

somewhere on your hospital property. Just because you’re not a designated Ebola treatment

center doesn’t mean you don’t have to deal with this.

Other issuesOther issues

Setting up a special Ebola unit or hospital

Transfer concerns We have a brain.

Setting up a special Ebola unit or hospital

Transfer concerns We have a brain.

Recent EMTALA IssuesRecent EMTALA Issues On-call refusal to come in / refusal to

accept transfer Triage vs. Screening (or “Screening Out”) 250-Yard Rule Diversion/Parking of EMS Patients Helipads and Helicopter Transfers Hospital-Owned and Operated

Ambulances EMTALA Waivers

On-call refusal to come in / refusal to accept transfer

Triage vs. Screening (or “Screening Out”) 250-Yard Rule Diversion/Parking of EMS Patients Helipads and Helicopter Transfers Hospital-Owned and Operated

Ambulances EMTALA Waivers

CMS Review ProceduresCMS Review Procedures Possible Outcomes:

No violation Past Violation, No termination Violation, Immediate and Serious

Threat Violation, No Immediate and Serious

Threat All investigations referred to QIO prior to

finding of violation (MMA)

Possible Outcomes: No violation Past Violation, No termination Violation, Immediate and Serious

Threat Violation, No Immediate and Serious

Threat All investigations referred to QIO prior to

finding of violation (MMA)

EMTALA PenaltiesEMTALA PenaltiesCMS: Medicare Termination

DHHS Office of the Inspector General: Hospital

CMP of $50,000 per violation for hospital ($25,000 if less than 100 Beds)

Physician CMP of $50,000 per violation Exclusion from Medicare and Medicaid

programs

CMS: Medicare Termination

DHHS Office of the Inspector General: Hospital

CMP of $50,000 per violation for hospital ($25,000 if less than 100 Beds)

Physician CMP of $50,000 per violation Exclusion from Medicare and Medicaid

programs

Three Keys to Compliance:Three Keys to Compliance:Consistency

Complaint system

Knowledge

Consistency

Complaint system

Knowledge

18/12

6/100th of each penny is spent on S&C Nationally

1.2 Cents is spent by CMS for Program Administration

For every Medicare Dollar:

What else costs $400 million?What else costs $400 million?What PlayStation4 and Xbox One owners spend

nationally on energy costs...just to keep the systems in standby mode.*

(Natural Resources Defense Council)

*Not my kids.

EMTALA WebsitesEMTALA WebsitesGeneral EMTALA Information www.cms.gov/emtala

CMPs Imposed by the Office of the Inspector General http://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp

General EMTALA Information www.cms.gov/emtala

CMPs Imposed by the Office of the Inspector General http://oig.hhs.gov/fraud/enforcement/cmp/patient_dumping.asp

Contact InfoContact Info David Wright

PH (Direct): (214) 767-6426*E-Mail: David.Wright@cms.hhs.gov

*67 Blocks your number. I’ll still answer

David WrightPH (Direct): (214) 767-6426*E-Mail: David.Wright@cms.hhs.gov

*67 Blocks your number. I’ll still answer