CMS letter causes ED concerns about 'parking' EMS patients

Some EMS personnel take letter literally, adding pressure to managers

A July 13, 2006, letter from Thomas E. Hamilton, the director of the Centers for Medicare & Medicaid Services (CMS) Survey and Certification Group, about proper handling of EMS ambulance patients has caused a stir in emergency medicine circles that still reverberates today, as confusion remains about exactly what CMS meant.

The letter stated that CMS had become aware that several hospitals "routinely" prevent EMS staff from transferring patients from their ambulance stretchers to a hospital bed or gurney and that sometimes patients were being left on stretchers for "extended periods of time." Hospitals were refusing to accept patients off EMS stretchers, the letter suggested, out of a belief than unless the hospital "took responsibility" for the patient, it did not have an obligation to give the patient medical care.

Such a practice, the letter warned, "may result in a violation of the Emergency Medical Treatment and Labor Act (EMTALA)." In addition, it said, it also may result in a violation of the Conditions of Participation for Hospitals and Emergency Services, "which requires that a hospital meet the emergency needs of patients in accordance with acceptable standards of practice."

"None of us, as emergency physicians, like to have patients anywhere else [but in an ED bed], but the reality is when everyone is bedded up and there is no physical place to put the patient, the safest place is the gurney they are on with the EMS people with them," says Brian Keaton, MD, FACEP, president of the American College of Emergency Physicians (ACEP). "If that's the only alternative, then that's the only alternative."

CMS is not unaware of the stir the letter has caused. "Some people were alleging that some EMS squads were taking the letter so literally that they basically were saying that the minute the patient shows up, the hospital has to take responsibility," a CMS official tells ED Management on condition of anonymity.

The letter was discussed during a November meeting of ACEP's Technical Advisory Group (TAG), relates Barbara Marone, ACEP's director of federal affairs in Washington, DC. "There was a discussion during the meeting, the gist of which was that there are circumstances when hospitals can't offload patients as fast as EMS would like and, more importantly, EMTALA violations arise from individual complaints," she says. Marone adds that one of the new TAG members was going to write a letter clarifying CMS policy, "but we have not seen anything yet."

The CMS official, however, insists that the agency has indeed provided clarification, and says, "It is not our intent for the hospital to take immediate responsibility from the provider when they do not have the capability or capacity at the time of presentation, but must triage the patient in order to make an assessment, and if according to presenting symptoms and characteristics it is reasonable to wait a bit if they are dealing with other more urgent cases, it is not unreasonable if EMS is asked to continue to do some monitoring."

This clarification, however, begs the question of what constitutes "an extended period of time," or what "some" monitoring is.

Not an issue?

Despite the uproar over the letter, Susan Lapenta, JD, an attorney with the Pittsburgh-based law firm Horty Springer, says, "This issue is to me not an issue. It is so clear that the law prior to this says that when a patient presents, you have an obligation to provide screening."

However, the issue of when a patient actually "presents" was a key consideration in the CMS letter. The agency indicated that some hospital staff felt that if they did not accept responsibility for the patient from EMS, then the patient could not be considered to have formally "presented." However, as the letter stated, "A patient who arrives via EMS meets this requirement when EMS personnel request treatment from hospital staff."

"My guess is that CMS probably had a handful of complaints and maybe the EDs had no choice and thought if they did not unload the patient the EMTALA 'clock' would not start to tick," Lapenta offers. "But I can't imagine a lot of hospitals are doing this."

Keaton says at his facility, triage and treatment often begin while patients still are on EMS stretchers. "If they need a particular kind of care, like breathing treatment, we can get that started in the hallway," he says.

But, Keaton continues, that misses the key issue behind the controversy. "The problem is that what CMS is trying to solve is a system problem that shows its face at the door of the ED, and it does not seem reasonable of CMS to tell us we should solve a problem without providing us a tool to solve it," he says. "We need to focus attention on solving the bigger problem, rather than assigning blame or some sort of punishment for a symptom of the problem."

Lapenta agrees. "The bigger problem is the overcrowding in the ED," she observes. "People are not looking for ways around the law, but for ways to deal with a crisis."

A prudent process

A prudent ED manager will have processes in place to handle these EMS patients as soon as possible, Lapenta advises. "The thinking is that when someone comes to the hospital through EMS, their level of acuity will be higher than that of someone who walks through the door," she notes. "Most likely ambulance patients will be triaged first — ASAP — and removed from EMS and given over to hospital personnel."

If the ED really is jammed up and EMS personnel are standing around, "Maybe EMS would be willing to monitor the patient for a short period of time, but you're talking about perhaps 15 minutes," says Lapenta. "If you get to that place and you just can't handle anyone else, then go on diversionary status."

It's true that EMS might show up even though you are on diversion, "But then they realize it will take a longer time for the patient to be transferred from their personnel to your personnel," says Lapenta.

Complete and accurate documentation will give you an added measure of protection, she continues. "I personally think we see a good deal of flexibility from the government when we do our best, but your documentation should reflect the status of your hospital, the fact that you put EMS on notice [as to your status], and that you were working to get the patients out of the stretchers as soon as possible," says Lapenta. "My guess is that if you use your best efforts and good faith, I do not think they will come down on you too incredibly hard."

The CMS official agrees. "They need to have a system in place that can appropriately and quickly triage that patient and get to them as soon as possible," the official notes. "If they have a reasonable system in place and make an appropriate assessment and there's not an indication of some pattern and practice, while you can't make a hard-and-fast rule, that seems like reasonable behavior on the part of the ED that surveyors will understand."

The bottom line for ED managers is this:

CMS is monitoring the intake process of the ED, whether the patient walks in or arrives by EMS. Delays in patient management, and refusal to accept responsibility for ambulance patients for prolonged periods of time, are likely to result in CMS study and action.

Sources/Resource

For more information on how to appropriately handle EMS patients, contact:

  • Brian Keaton, MD, FACEP, President, American College of Emergency Physicians, 1125 Executive Circle, Irving, TX 75038-2522. Phone: (800) 798-1822.
  • Susan Lapenta, JD, Horty, Springer & Mattern, 4614 Fifth Ave., Pittsburgh, PA 15213. Phone: (412) 687-7677. Fax: (412) 687-7692. E-mail: slapenta@hortyspringer.com.
  • Barbara Marone, Federal Affairs Director, American College of Emergency Physicians, 2121 K St. N.W., Suite 325, Washington, DC 20037-1801. Phone: (202) 728-0610.

For a copy of the CMS letter, go to www.aaem.org/emtala/emtala_cms.pdf.