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EMTALA Update 2021Emergency Medical Treatment and
Labor Act Part 1 of 3
2
Speaker
▪ Laura A. Dixon, Esq.
▪ BS, JD, RN, CPHRM
▪ President, Healthcare Risk Education and Consulting, LLC
▪ 1621 York Street
▪ Denver, Colorado 80206
▪ 303-955-8104
▪ Email questions to CMS at: Critical Access Hospitals: [email protected] or Acute hospitals: [email protected].
22
Headlines We Don’t Want to See
3
www.beckershospitalreview.com/eds/maine-hospitals-
turned-mental-health-patients-away-from-er-state-
finds.html
4
www.modernhealthcare.com/article/20170705/
NEWS/170709977
5
https://drme.org/blog/2018-08-30
6
www.beckershospitalreview.com/patient-flow/30-of-
hospitals-have-violated-emtala-investigation-
finds.html?origin=qualitye&utm_source=qualitye
7
www.beckershospitalreview.com/finance/cms-terminates-missouri-hospital-s-medicare-contract.html
2 Days for State Agency to Investigate
▪Survey memo June 4, 2019
▪ Revised the EMTALA manual
▪ Chapter 5 re: complaint investigations
▪Prior regulation - time frame to investigate EMTALA complaints or patients who die from restraints was 5 working days
▪Changed to two business days if serious -immediate jeopardy possible
▪The regional office triages complaints
▪ Non-IJ can be done in 45 days8
9
EMTALA and the OIG
▪OIG issued final rules that became effective January 6, 2017
▪ Published in the Federal Register
▪Changed the civil monetary penalty (CMP) or “fine” for violating the federal EMTALA law
▪Also clarified liability under EMTALA
▪These are not in the CMS EMTALA manual
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Rule as of January 2017
12
www.federalregister.gov/documents/2016/12/07/2016-28293/medicare-and-state-health-care-
programs-fraud-and-abuse-revisions-to-the-office-of-inspector
Updates
▪ Published proposed rules on May 12, 2014
▪ Clarified a penalty is for each violation
▪ OIG will review the violation on a case-by-case basis
▪ This includes if there is a pattern
▪ Removed the section on mitigating factors when deciding how much to fine the hospital for an EMTALA violation
▪Will also evaluate if the hospital took appropriate action when it discovered an EMTALA violation
13
EMTALA Section Starts at Part E
14
Other Updates
▪Discussed EMTALA fines
▪Physicians can be excluded from Medicare
▪ Gross, flagrant violation or repeated violations of EMTALA
▪Removed outdated references to the pre-1991 “knowing scienter” requirement
▪ “Responsible physician” – revised
▪ The on-call physician at the hospital is subject to EMTALA
15
Other Updates – cont’d
▪Clarified:
▪ An on-call physician who fails to show up within a reasonable time when requested violates EMTALA and can be fined
▪ Includes
– On-call physicians at hospitals with specialized capabilities
– Where a patient may need to be transferred
– The on-call physician to accept the transfer when they have specialized capabilities
▪Will consider if CMS was notified in advance
16
Fines
▪Aggravating circumstances:
▪ A request for proof of insurance prior to screening
▪ Request for payment prior to screening or treating
▪ Patient harm which could include premature discharge
▪May fine a physician for making misrepresentation on the patient’s condition
▪Also – a penalty may be assessed if the patient is kept there an unreasonable amount of time and leaves
17
EMTALA Physician Review
Worksheet
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EMTALA Physician Review Worksheet
▪When the QIO has a case reviewed
▪ Asks a physician to review a case
▪ Use a form that sets out questions to ask
▪ It is 11 pages long
▪ It includes name of the patient, DOB, name of the hospital, both sending and receiving
▪ It asks the physician to document their rationale for the findings and to make summary comments
www.cms.gov/Regulations-and-
Guidance/Guidance/Manuals/downloads/som107_exhibit_138.pdf
EMTALA Physician Review Worksheet
▪Asks:
▪ Did the hospital provide a medical screening exam (MSE) to determine if an emergency medical condition (EMC) existed?
▪ Was the MSE appropriate considering the patient’s complaints and signs and symptoms?
▪ Was there any inappropriate long delay?
▪ If there was an EMC was the patient stabilized?
▪ If transferred to another hospital were qualified staff and equipment used?
CMS Surveyor Course on EMTALA
CMS Surveyor Training Website
23
https://qsep.cms.gov/welcome.aspx
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Access to Hospital Complaint Data
▪As of March 22, 2013 – can access hospital complaint data
▪ Includes acute care and CAH hospitals
▪ Does not include the plan of correction but can request
▪ Questions to [email protected]
▪Updated quarterly
▪ Available under downloads on the hospital website at www.cms.gov
27
Hospital Complaint Data
▪A list that includes the hospital’s name and the different tag numbers that were found to be out of compliance
▪ Many on restraints and seclusion, EMTALA, infection control, patient rights including consent, advance directives and grievances
▪EMTALA – one of the most common deficiencies
▪ 4,472 deficiencies in January 2019 – increase of 442 from 2018
▪ 5,052 in January 2020 – up 580 from 2019
▪ 5,325 in November 2020 – up 273
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Updated Deficiency Data Reports
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▪www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Hospitals.html
“Full Text Statements”
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www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Hospitals.html
EMTALA Deficiencies
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Deficiencies June 10, 2021
Tag 2400 Compliance with
EMTALA 489.24
1597
Tag 2401 Receiving
Inappropriate Transfer
25
Tag 2402 Posting Signs 333
Tag 2403 Maintain MR 52
Tag 2404 On call physician 235
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Deficiencies June 10, 2021
Tag
2405ED Log 563
2406 MSE 1,315
2407 Stabilization Treatment 479
2408 Delay in Exam 174
2409 Appropriate Transfer 676
2410 Capability & Lateral Transfers
Whistleblower
1
2411 Recipient Hospital
Responsibility187 Total 5,637
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Introduction, Penalties, and
Cases in the News
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CMS Hospital CoP Manual
▪ https://www.cms.gov/files/document/som107appendicestoc.pdf.
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CMS CoP Manual
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CAH CoP EMTALA at the End
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Manuals at
www.cms.gov/files/document/appen
dices-table-content.pdf
Appendix V – EMTALA for Acute and CAH
38
39
www.cms.gov/files/document/a
ppendices-table-content.pdf
OIG Monetary Penalties
Factors Zuabi N, Weiss L, Langdorf M. Emergency Medical Treatment and Labor Act (EMTALA) 2002-15:
Review of Office of Inspector General Patient Dumping Settlements. West J Emerg Med. 2016;17(3):245-251.
% of Settlements
Failure to screen for EMCs 75%
Failure to stabilize a patient with EMC 42.7%
Patient turned away for insurance or financial status 15.6%
Inappropriate discharge of patient with EMC 14.5%
Hospital failed to accept transfer in of patient with EMC 13%
Inappropriate transfer of a patient with EMC 11.4%
Failed to transfer a patient with EMC 11.4%
Patient in active labor 6.7%
On-call physician refused to see patient with EMC 6.2%
No specialist physician available upon arrival of patient with EMC 2%
Hospital had capacity but still refused 2%
ED on ambulance diversion 1.5%40
CMS Regions in US
41
https://www.researchgate.net/figure/Center-for-Medicare-and-Medicaid-CMS-regions-relevant-
to-reporting-of-US-Office-of_fig5_305453910
Signs Regarding Narcotic Policy
▪Posting signs regarding narcotic policy might be considered coercive or intimidating to patients who present to the ED with painful medical conditions
▪ Violates both the language and intent of the EMTALA statute and regulation
▪Patients with legitimate need for pain control might be coerced to leave the ED before receiving an appropriate medical screening exam
▪ Consider removing the ED guidelines that may be posted in your ED
▪ Still follow standard of care
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Posters Regarding Prescribing Pain Medication
43
▪www.acepnow.com/article/ed-waiting-room-posters-prescribing-pain-medications-may-violate-emtala/
EMTALA Penalties
▪Penalties have increased – doubled
▪ Due to the Federal Civil Penalties Inflation Adjustment Act of 2015
▪From $50,000 to $103,139.00 for hospitals with 100 beds or more and Feb 2017 inflation to $104,826
▪From 25,000 to $51,570 hospitals less than 100 with Feb 2017 inflation to $52,421
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Question #1
▪Our facility provides routine education to physicians and staff regarding EMTALA obligations.
▪ Yes
▪ No
▪ Not sure
▪ Prefer not to answer
45
EMTALA Revised Penalties
46
www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/LTC-HHA-CLIA-
Specific-CMP-Adjustments.pdf
47
www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/SurveyCertificationGenInfo/Civil-Monetary-Penalties-Annual-
Adjustments.html
48
The Basic Concept of EMTALA
▪Hospitals that participate in the Medicare program must
▪ Provide a medical screening exam to
▪ Determine if the patient is in an emergency medical condition (EMC)
▪ If so – must provide stabilizing treatment or transfer
▪Rationale:
– Prevent hospitals from denying care to anyone in an emergency, not just pregnant woman
– To prevent hospitals from transferring patients before they were adequately stabilized
49
Original Case
▪Eugene Barnes, 32 YO male
▪ To Brookside Hospital ED on 1-28-85
▪ Had penetrating stab wound to scalp and the neurosurgeon refused to come
▪ Called 3 other hospitals and refused to take
▪ Finally sent to San Francisco General four hours after arrival but patient died
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Cases Congress Heard
▪William Jenness – to hospital after auto accident
▪ Hospital asked for $1,000 deposit in advance before they would treat
▪ Patient could not pay so transferred to a county hospital
▪ It took four hours before he reached the operating room
▪ Died six hours after the accident
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Cases Congress Heard
▪Anna Grant – went to private hospital in labor
▪ Was kept in a wheelchair for 2 hours and 15 minutes
▪ Checked only once
▪ No test done
▪ If tests had been completed – would have shown fetus to be in severe distress
▪Patient was told to get herself to the county hospital
▪Baby stillborn at the county hospital
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Other Cases in the News
▪ 49-year-old patient complained of chest pain, nausea, and SOB
▪ Waited in emergency department lobby for 2 hours
▪ Her daughter, a nurse, went to the staff 5 times and asked to evaluate her mom
▪Nurse went to get patient and she was leaning on her side unconscious with no pulse
▪ Lake County coroner rules that the death a homicide
53
https://myheartsisters.org/2012/01/20/beatrice-vance/
History and the EMTALA
Requirements
54
President Reagan Signs EMTALA Law
55
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Who are the Players?
▪ CMS: Center for Medicare and Medicaid Services
▪ OIG: Office of Inspector General
▪ QIO: Quality Improvement Organization
▪ OCR: Office of Civil Rights
▪ Investigate discrimination based on age, sex, disability, national origin, etc.
▪ State survey agencies: abbreviated SA
▪ Example is the Department of Health
▪ In SD – Department of Health
57
History
▪1985 – Congress enacts EMTALA
▪Effective August 1,1986
▪ Has changed dramatically since 1986
▪ EMTALA: Emergency Medical Treatment and Labor Act
▪Note the word “ACTIVE” is no longer a part of the name
58
History
▪ Enacted as part of the Consolidated Omnibus
Reconciliation Act of 1985 (COBRA, Section 9121)
▪Initially referred to as “COBRA”
▪More commonly called EMTALA
▪Also known as the Patient Transfer Act or the Anti-dumping Law (SSA, Section 1867)
59
CMS EMTALA Website
▪Website lists resources on this issue
▪ Includes CMS guidance to state survey agency directors and CMS regional offices
▪ Includes information about the Technical Advisory Group (TAG), complaint procedures, EMTALA survey and certification letters, transmittals, etc.
▪Available at http://www.cms.gov/EMTALA/
CMS EMTALA Website
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www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/index.html
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CMS EMTALA Website
▪Exam and treatment of women in labor
▪ Payment for EMTALA
▪ Final rule on EMTALA
▪ Interpretive Guidelines rewritten and issued May 29, 2009
▪ Amendment July 2010 and July 2019
▪ Amended Tag 2406 on waivers in 2010
▪Provider agreement under SSA
Major Revisions May 29, 2009
62
63
www.cms.gov/Regulations-and-
Guidance/Guidance/Transmittals/2019Downloads/R191SOMA.pdf
July 2019 EMTALA Changes
▪Updated chapter five in the complaint manual to include EMTALA
▪The State agency may show up at the hospital’s door within two business days if it is a serious EMTALA allegation such as where it could constitute immediate jeopardy (IJ)
▪All allegations of EMTALA violations are sent to the regional office including children’s, cancer, psych, LTC, acute care, CAH, and rehab hospitals
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July 2019 Changes
▪Allegations of EMTALA noncompliance may be assigned a priority – if can establish immediate jeopardy
▪ If the problem was found to be true and uncorrected:
▪ Would result in substantial noncompliance with at least one condition level deficiency
▪ Reason to correct problems timely
▪CMS has a separate manual on immediate jeopardy
▪ Updated in March 2019
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Review Process – July 2019 changes
▪Will review at least 20 records in depth
▪ On return visit: will look at 10 additional
– Ensure plan of correction is being followed
▪ Review transfers of ED patients in the last 6 months
– Ensure stabilizing treatment was provided
▪ Focus primarily on the issue related to the complaint
– Can review non-related case to assess compliance with all the EMTALA requirements
▪Will punt to the OCR if find discrimination based on age, sex, or national origin etc.
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Other Changes
▪Added that surveyors are to review the central log and to look at cases
▪ Suicidal ideation
▪ Rupture of membranes
▪ Emergency medical conditions
▪ Pediatric high fever or lethargy
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Other Changes – cont’d
▪The surveyor may provide preliminary findings at the exit conference but must not tell the hospital if it is a violation
▪ The regional office (RO) is the one that decides this
▪ The RO can decide if the case needs to be referred to the QIO
▪Age, sex, national origin etc., complaints are referred to the OCR
68
69
www.cms.gov/SurveyCertificatio
nGenInfo/PMSR/list.asp#TopOf
Page
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www.cms.gov/files/document/
appendices-table-content.pdf
EMTALA Summary Sheet
71
www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/EMTALA.pdf
CMS Transmittals
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www.cms.gov/node/1291421
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▪ 5 Minute Break
EMTALA Survey Memos
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Policy & Memos to States and Regions
▪Where new interpretive guidelines are published
▪Where new EMTALA memos are posted
▪ http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp#TopOfPage
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CMS Survey and Certification Website
www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/SurveyCertificationGenInfo/Policy-and-Memos-to-States-and-Regions
CMS Survey Memos
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www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Policy-
and-Memos-to-States-and-Regions
Example of a Survey Memo
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www.cms.gov/SurveyCertificationGe
nInfo/PMSR/list.asp#TopOfPage
EMTALA and Ebola
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www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-10.pdf
EMTALA and Ebola
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www.cms.gov/SurveyCertificationGe
nInfo/PMSR/list.asp#TopOfPage
November 2014 EMTALA and Ebola Memo
▪Every hospital with a DED:
▪ Must conduct an appropriate MSE on all patients
▪ Includes patients suspected of having been exposed to Ebola
▪ All EDs are expected to be able to apply appropriate Ebola screening
▪ If necessary - isolate and notify state agency
81
EMTALA and Ebola
▪ If patient has Ebola – must follow current guidelines
▪ If any complaints – CMS to consider public health guidance in effect at the time
▪CMS received several inquiries from hospitals regarding their EMTALA obligations
▪ EMS or public health departments may develop community wide protocols for bringing patients to specified hospitals if suspected of having Ebola
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CDC Updates List of Treatment Centers
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84
www.cdc.gov/vhf/ebola/clinicians/index.html
EMTALA, CAH & Telemedicine
▪CMS welcomes the use of telemedicine by CAH
▪CAH not required to have a doctor to appear when patient comes to the ED
▪PA, NP, CNS, or physician with emergency care experience must show up within 30 minutes
▪ If MD/DO does not show up:
▪ Must be immediately available by phone or radio 24 hours a day
▪Can be met by use of telemedicine physician or the physician on site
85
CMS Memo December 2013*
▪Addressed payor requirements and collection practices
▪EMTALA is a federal law and pre-empts any inconsistent state law
▪Some proposed or existing payment policies of third-party payors of hospital services are in violation of the federal EMTALA law
86
Payments and Co-Pays
▪Hospital cannot request payment or co-pays until
▪ After an appropriate MSE completed
▪ Stabilizing treatment has been initiated
▪ACA provided several provisions:
▪ Required certain insurers to cover emergency services including stabilization, without preauthorization
▪CMS asked to intervene if a patient believes a state Medicaid policy conflicts with EMTALA
▪ CMS will only approve ones that do not conflict with EMTALA
87
“Surprise Billing” Legislation – Briefly
▪Addressed out-of-network providers and protections from surprise billing and excessive cost-sharing for consumers
▪ Out-of-network usually charge at higher amounts vs contracted rates
▪ Health plan usually does not cover entire out-of-network cost
▪Study findings:
▪ People who got a surprise bill for emergency care were more than 10x higher than those by other patients
https://www.cms.gov/newsroom/fact-sheets/requirements-related-surprise-billing-part-i-interim-final-rule-comment-period.
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Summary
▪ If a plan/coverage provides/covers any benefit for emergency services requires coverage
▪ Without prior authorization
▪ Regardless if in-network provider/emergency facility
▪ Regardless of any term/condition of plan or coverage other than:
– Exclusion/coordination of benefits
– Or a permitted affiliation
– Or waiting period
89
Summary – continued
▪ Limits cost sharing for out-of-network to no higher than in-network levels
▪Cost sharing to count toward any in-network deductibles and out-of-pocket maximums
▪Prohibits balance billing
▪Posted July 1, 2021
▪Applicable to plans beginning on/after January 1, 2022
90
Covid-19 and EMTALA Memo
▪Memo dated March 9, 2020
▪Every hospital with a DED
▪ Required to do an appropriate MSE
▪ Regardless of whether they walk in or come in by squad
▪ Expected to be able to screen for COVID-19
▪ Must be able to identify and isolate such patients
▪ Keep 6 feet away from other patients
91
Covid-19 and EMTALA Memo
▪Can contact the state or local health department for next steps for patients with the coronavirus
▪Hospitals are expected to follow the current guidance from the CDC
▪ CMS will take into consideration the public health guidance that is in effect when evaluating if a complaint is lodged
▪ Need to provide appropriate isolation required to stabilize and accept patients when transfers are appropriate
▪ Cannot put up signage in the ED that is designed to put up barriers for patients coming into the ED
92
93
www.cdc.gov/coronavirus/2019-ncov/infection-
control/control-recommendations.html
Covid-19 and EMTALA Memo
▪Hospitals need to determine if they have the capability to take care of a patient with the coronavirus
▪Must immediately isolate and follow the CDC isolation guidelines
▪ www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/index.html
▪The March 2020 memo* set out what a hospital needs to do related to the coronavirus
▪ If patient comes to the ED coughing put a mask on them
▪ Isolate them and don’t allow them to sit in the waiting room
94
1135 Waivers – December 1, 2020
▪Hospitals may screen patients at offsite location
▪ Cannot be inconsistent with state’s emergency preparedness/pandemic plan
▪Special waivers:
▪ Transfer of individual who has not been stabilized – if transfer arises out of an emergency
▪ Redirection to another location to receive MSE under state emergency preparedness/pandemic plan
▪ Cannot discriminate at as to payor/ability to pay
95
Question #2
▪We have seen a decrease in routine ED visits since March due to fears of COVID-19
▪ Yes
▪ No
▪ Not sure
96
97
CMS Memo Hospitals & the Coronavirus
▪Contact your local health department if patient or healthcare provider has COVID-19
▪Monitor staff
▪ Ill staff need to be sent home immediately if symptoms and place a mask on
▪Patients who arrive who are coughing should have a mask put on
▪ In isolating patient – make sure the door is closed
▪ In some settings patient may be able to wait in their personal vehicle or outside the facility and can call them on their cell phone when it is their turn
98
Covid-19 and EMTALA Memo
▪Hospitals must accept transfers of patient with COVID-19 if a CAH or small and rural hospital that does not have sufficient isolation or equipment to meet the patient’s needs
▪ Some may just need a private room
▪ May not need a negative pressure room (airborne infection isolation room or AIIR) unless patient undergoing aerosol generating procedures
▪ MSE does not always have to take place in the ED- can set up an alternative site on the hospital’s campus to perform
▪Need to ask about foreign travel during triage
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Covid-19 and EMTALA Memo
▪Person directing patient movement after the patient is logged in must be qualified – such as an RN
▪MSEs must be conducted by qualified personnel
▪ I.e. physicians, NPs, PAs, or RNs
▪ Trained to perform MSEs and
▪ Acting within the scope of their State Practice Act
▪Cannot send a patient off campus for screening*
▪ Can encourage the public to go to these facilities
▪ Some facilities have large tents in parking lot for testing
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Updated Memo December 1, 2020
101
Colorado’s Governor & “At-Capacity”
102
Colorado’s Governor & “At-Capacity”
103
OIG Advisory Opinions, OIG,
and IJ Guidelines
105
2 Important OIG Advisory Opinions
▪ #1 Issued September 20, 2007, No. 07-10
▪ #2 Issued May 21, 2009, No. 09-05
▪OIG agrees not to prosecute a hospital for paying for certain on call services for on call physicians
▪Physicians agree to take call rotation on even basis
▪ http://www.oig.hhs.gov/fraud/docs/advisoryopinions/2007/AdvOpn07-10A.pdf
106
OIG Advisory Opinion
107
OIG Advisory Opinion #1
▪Physicians are paid a rate for each day on call
▪ 18 days a year are gratis
▪Rate based on specialty and whether coverage is weekday or weekend, likelihood to be called, severity of illness, degree of inpatient care required
▪Rates provided at fair market value
▪Program open to all
108
OIG Advisory Opinion #2
▪Addressed a 400-bed nonprofit general hospital with only provider in that county area for acute care services
▪ Many times, no one on call and had to transfer patients out
▪Proposed to allow on-call doctors to submit claims for services rendered to indigent and uninsured patients presenting to the ED
▪Signed an agreement that this was payment in full and would show up in 30 minutes
109
OIG Opinion #2 – cont’d
▪Fees:
▪ $100 for ED consultation
▪ $300 per admission
▪ $350 for primary surgeon and physician doing an endoscopic procedure
▪OIG approved: did not include any of the four
problematic compensation structures and presented a low risk of fraud and abuse
▪Payments were fair market value without regard to referrals or other business generated by the parties
110
Paying for On-Call Physicians
▪Arrangement does not consider the value or volume of past or future referrals
▪Every arrangement must be based on the totality of its facts and circumstances
▪Safe harbor for personal services (contract, over one year) but does not fit squarely since aggregate amount can not be set in advance
▪Arrangement in this case presents low risk of fraud and abuse
111
What You Should Consider
▪Have a process to support the rationale for paying physicians for on-call services
▪Be able to justify the reasonableness of the amount of the payments
▪Attempt to obtain on-call payment arrangements to fit within the fraud and abuse laws to satisfy the OIG
112
OIG Compliance Program Guidance for Hospitals
▪Review your obligations under this federal law
▪ When to do a medical screening exam
▪ When patient has an emergency medical condition
▪ Know screening can not be delayed to inquire about method of payment or insurance
▪Available at http://oig.hhs.gov/fraud/complianceguidance.asp
▪OIG promotes voluntary compliance programs for hospitals
▪This document contained a section on EMTALA
113
OIG Compliance Program Guidance
▪Even if on divert and patient shows up – they are yours
▪Do not transfer a patient unless there is a transfer agreement for unstable patients with benefits and risks
▪Provide stabilizing treatment to minimize the risks of transfer
▪Medical records must accompany the patient
▪Understand specialized capability provision
114
EMTALA OIG
▪Must provide screening and treatment within full capability of hospital including staff and facilities
▪ Includes on call specialist
▪On call physicians need to be educated on their responsibilities
▪ Including responsibility to accept transferred individuals from other facilities
▪Must have policies and procedures
▪Periodic training for persons working in the ED of EMTALA obligations and hospital’s P&Ps
115
Medicare State Operations Manual
▪CMS issued Appendix Q on Guidelines for Immediate Jeopardy
▪The previous guidelines for CMS surveyors contain an EMTALA trigger
▪ Are not in the 2019 changes
▪These apply to all facilities that receive Medicare/Medicaid reimbursement
▪ Including Critical Access Hospitals
116
117
Guidelines for Determining Immediate Jeopardy
▪2019 changes
▪ Did not list the prior EMTALA specifics
▪ Mentions the RO makes the final decision and not the SA, so it is preliminary
▪ Refers the surveyor to other resources and manuals
▪Failure to perform medical screening exam as required by EMTALA or to stabilize or provide safe transfer
▪ Individual turned away from the emergency department without a medical screening exam
118
Examples of Immediate Jeopardy
▪ Failure to perform medical screening exam as required by EMTALA or to stabilize or provide safe transfer
▪ Individual turned away from the ED without an MSE
▪Women with contractions not medically screened for status of labor
▪Absence of ED or OB medical screening documentation
▪ Failure to stabilize emergency medical condition
▪ Failure to appropriately transfer an individual with an unstable medical condition
119
TJC Standards – RC.02.01.01
▪Medical record must contain care and treatment (EP2)
▪ The time and means of arrival to the ED
▪ If the patient left AMA
▪ All orders, progress notes, medication given, informed consent, use of interpreters, adverse drug reactions
▪ Records of communication with patients including telephone calls such as abnormal test results from the ED or emails
120
RC.02.01.01 – cont’d
▪ Summary of care provided and emergency treatment prior to arrival
▪ Conclusion reached at the termination of care in the ED
▪ The patient’s final disposition
▪ Condition
▪ Instructions for follow –up care, treatment and services
121
CMS Regional Offices (RO)
▪ The RO evaluates all complaints and refers that warrant SA investigation (state agency)
▪ SA or RO send a letter to complainant
▪ Acknowledging receipt of complaint
▪ Let person know if investigation is warranted
▪ Will look to see if violation of the Provider agreement or related Special responsibilities in emergency cases
122
Regional Offices
▪ There are 10 regional offices (ROs)
▪ See list at end of addresses of all ROs
▪ RO gives initial verbal authorization for investigation
▪ Then prepares Form for Request for Survey (1541B)
▪ Copy available at; http://www.cms.hhs.gov/cmsforms/downloads/cms1541a.pdf
123
124
Regional Office
▪RO also sends Medicare/CLIA Complaint Form
▪ Determine allegation
▪ Whether finding substantiated or not
▪ Number of complainants per allegation
▪ Source of complaint, date received etc.
▪ May complete Request for Validation of Accreditation survey for hospital
▪ State Agency does not notify hospital in advance
▪ Only CMS does EMTALA investigations and not AOs
▪
The CMS Interpretive
EMTALA CoPs
125
126
Introduction to EMTALA
▪ Is a CoP (Condition of Participation)
▪ Hospitals agree to comply with the provisions by accepting Medicare payments
▪ Hospitals should maintain a copy of these interpretative guidelines
▪ Recommend hospitals have a resource book on EMTALA in ED, OB, and behavioral health units
127
CMS EMTALA Overall
▪Revised EMTALA guidelines last amended July 2019
▪Regulations are published in the federal register
▪Then CMS adds interpretive guidelines and survey procedure
128
Interpretive Guidelines
▪Each section has a tag number
▪ Examples of Tag number: A-2403/C-2403
▪ “A” indicates a hospital standard
▪ “C” is for Critical Access Hospitals
▪Starts with Tag 2400 and goes to Tag to 2411 so 12 tag numbers
▪Part I - the investigative procedures, entrance conference, record review, exit conference etc.
129
Interpretive Guidelines
▪Part II is the section on responsibilities of Medicare Participating Hospitals in Emergency Cases
▪ Includes on-call physician requirements
▪ Includes use of dedicated emergency departments (DEDs)
▪ Includes stabilization and transfer requirements
130
Sample Page
131
Two Other Important Laws
▪There are also two other important laws that address EMTALA issues
▪First: Basic Commitment Section 1866
▪ Agreement with Providers (42 U.S.C. 1395cc)
▪ Is relevant to the second one
▪ Also referred to the Essential of Provider Agreement
▪Second: Section 1867 (42 U.S.C. 1395dd)
▪ Examination and Treatment for an Emergency Medical Condition (EMC)
Basic Commitments & Special Responsibilities
132
www.ecfr.gov/
133
Basic Section 2400
▪Defines hospital to include CAH so all hospitals are governed by EMTALA
▪Requires:
▪ A medical screening exam (MSE) be given to any patient who comes to the ED
▪ That any patient with an EMC or in labor be provided necessary stabilizing treatment
▪ Hospital to provide an appropriate transfer such as when patient requests or hospital does not have the capability or capacity to provide the necessary treatment
134
Essentials of Provider Agreement
▪Basic Commitment requires the following:
▪ A list of physicians
▪ On call for duty after the initial examination
▪ To provide treatment necessary to stabilize an individual with an emergency medical condition
▪ Maintain medical records for five years from date of transfer
Provider Agreement
135
▪www.ecfr.gov/cgi-bin/text-idx?SID=24456dfd12f23570c57a12c52a826d2e&tpl=/ecfrbrowse/Title42/42cfr489_main_02.tpl
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The EMTALA Sign 2400
▪To post conspicuously in any emergency department
▪ Specifying the rights of individuals with respect to exam and treatment for EMC and for women in labor
▪ Must be one specified by the secretary
▪ Must say if you participate or not in the Medicaid program
▪More information on EMTALA sign in section 2402
▪ Sign must be clearly visible from 20 feet
▪ At least 18” by 20”
▪ Unless in posted in small room
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To Whom Does EMTALA Apply?
▪Hospitals who participate in the Medicare
▪EMTALA is a condition of participation (CoP)
▪ Is not limited to Medicare patients
▪Includes any individual who comes to the ED requesting care
▪If no verbal request is made it would include if a reasonable prudent layperson observer would conclude they need emergency care (not breathing)
▪ Present themselves to an area of the hospital that meets the definition of dedicated emergency department or DED
139
3 Criteria - What Constitutes a DED
▪ If licensed by state as ED
▪ Holds self out to public as providing emergency care
▪ During preceding calendar year, provided at least 1/3 of its outpatient visits for treatment of EMC
▪Example: hospital has an emergency department (ED), or trauma center
▪ It covers all individuals regardless of payment source
140
To Whom Does EMTALA Apply?
▪ Patients in a car at the ED doors trying to access the ED
▪ Patients anywhere on hospital property seeking emergency care
▪ For example: they come in the wrong entrance to the hospital and are looking for the ED
▪ Non-citizens of the US and minors
▪Does not cover people on the phone
Question #3
▪We encourage our staff to be on the alert for persons who may call with healthcare-related questions and to advise them to seek immediate care if they feel they are having a medical emergency.
▪ Yes
▪ No
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No Delay in Exam or Treatment 2400
▪Hospitals may not delay an appropriate MSE to inquire about the individual’s method of payment or insurance status
▪ CMS and OIG issue a special advisory bulletin on November 10, 1999 (Fed Reg. Volume 64, No. 217, 61353) – still relevant today
▪ Every hospital should read this to understand how to meet compliance with this section
Discussion
▪SE County is a 25-bed CAH. 50 miles away is Central Hospital – an 80-bed facility. 63-year-old Pt. A was injured in a farm accident 40 miles from SE County and 90 miles from Central. He fell from a barn roof. His wife calls SE County asking whether Pt. A should be brought into the hospital for examination. He is breathing short, grunting breaths which the ED nurse can hear over the phone. Pt. A is holding his left rib cage and reports hitting his head at some point.
▪EMTALA activated?
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The End Questions???
▪ Laura A. Dixon, Esq.
▪ BS, JD, RN, CPHRM
▪ President, Healthcare Risk Education and Consulting, LLC
▪ 1621 York Street
▪ Denver, Colorado 80206
▪ 303-955-8104
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APPENDIX
Resources and Internet Links
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State Survey Agency Directory – Feb. 2019
▪ https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Certification-State-Agency-Contacts.pdf.
146
Subscribe to the Federal Register
147
https://public.govdelivery.com/accounts/USGPOO
FR/subscriber/new
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EMTALA Sources of Law
▪Special Responsibilities of Medicare Hospitals in Emergency Cases EMTALA is located at 42 C.F.R. 489.24
▪Federal Register and CFR are available free off internet at http://www.gpoaccess.gov/fr/index.html
▪ Available at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=c07ae216364917a701e2426eb3f1419c&rgn=div8&view=text&node=42:4.0.1.5.27.2.212.5&idno=42
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www.ecfr.gov/cgi-bin/ECFR?page=browse
eCFR Title 42
150
www.ecfr.gov/cgi-bin/ECFR?page=browse
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152
IT'S THE LAW
IF YOU HAVE A MEDICAL EMERGENCY OR ARE IN
LABOR, YOU HAVE THE RIGHT TO RECEIVE,
within the capabilities of this hospital's staff
and facilities:
An appropriate Medical SCREENING EXAMINATION
Necessary STABILIZING TEATMENT
(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 the Medicaid Program
153
CMS Memo December 2013
154
www.cms.gov/SurveyCertificationGe
nInfo/PMSR/list.asp#TopOfPage
155
156
157
158
Special OIG/CMS Advisory
https://oig.hhs.gov/fraud/docs/alertsandbulletins/frdump.pdf
1135 Waivers December 1, 2020
159
https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-
waivers.pdf
FAQs February 8, 2021
160
https://www.cms.gov/files/document/03092020-covid-19-faqs-508.pdf
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