Critical Path Network

Hospital CoP changes affect EMTALA compliance

Time, signature issues cited

A one-word change in the Conditions of Participation (CoP) regulations that went into effect Jan. 26, 2007, will make a dramatic difference in compliance requirements for Medicare and EMTALA, says Stephen A. Frew, JD, a web site publisher and risk management specialist (

That change, which is "buried deep" within 22 pages of CoP regulations, requires that every entry in the medical record be timed, Frew adds, and it may influence how medical records affect malpractice claims.

"Most risk managers have pushed for timed entries in the medical record to help document sequence and timeliness of care," he notes. "Often EMTALA and other compliance issues hinge on the time of various entries."

Calling time "the new documentation trap," Frew points out that most hospitals that have not gone to electronic medical records have very few timed entries.

The Centers for Medicare & Medicaid Services (CMS) notes in its comments that "the timing of medical record entries is crucial for patient safety and quality of care. Timing applies to all medical record entries, not just to the authentication of verbal orders. This would include orders, progress notes, procedure notes, patient assessments, H&Ps [histories and physicals], etc.

"Timing establishes when an order was given, when an activity, intervention, treatment or procedure occurred, or when an activity, intervention, treatment or procedure is to take place," CMS goes on to state in the final regulations. "Timing and dating of entries establishes a baseline for future actions or assessments and establishes a timeline of events. Many patient interventions or assessments are based on time intervals or timelines of various signs, symptoms or events.

"We proposed minor revisions that would clarify that all patient medical record entries must be legible, complete, dated, timed, and authenticated in written or electronic form," the regulations state.

The first applications of the rule likely will occur in EMTALA investigations in the "dedicated emergency departments" of a hospital — the ED or the obstetrics, psychiatric or urgent care areas, Frew says.

The lack of timed entries, he notes, will now be a potential standards level violation for medical records that could turn out to be an EMTALA 21-day Notice of Termination citation.

"On the medical malpractice side," Frew adds, "ambiguities in treatment records caused by lack of timed entries might be fodder for a plaintiff's attack on the record's accuracy."

Risk managers should conduct immediate policy and procedure reviews to assess their facility's exposure, he advises. "Policy changes, staff education, and intense quality auditing will be required in most facilities."

Another change that will affect EMTALA compliance has to do with the new federal standard for verification of verbal orders, Frew says, specifically in the area of phone orders for transfers — including discharges in many obstetrics triage areas — when a physician is not present.

"The current rule indicates that the 'qualified medical provider' [QMP], typically a registered nurse or physician assistant, may effect a transfer and sign the transfer certification after conferring with a physician by phone if no physician is present," he explains. "The rule requires that the physician sign the order after the fact, but no time was specified."

Under another CoP change that went into effect Jan. 26, all verbal orders must be verified by an electronic or manual signature within 48 hours unless a state law or rule requires a different length of time, Frew says.

Some states have rules specifying times ranging from 24 hours to 30 days, he adds, and those rules will not be changed by the CMS regulations. States without existing standards will be required to meet the federal standard, Frew adds.

"An interesting twist in the rule is that the actual person giving the verbal order does not have to validate the order," he points out. "Partners, for instance, can sign the order for up to five years. The provision seems to anticipate that electronic systems will be fully in place by 2012."

Frew cautions, however, that the EMTALA rule for co-signature appears to require that the physician actually giving the verbal order for transfer must cosign the transfer created by the QMP.

"I recommend that the hospital policy continue to require co-signature by the individual physician consulted by the QMP," he adds.