Special Report: Police in the ED Raise Compliance Issues
Police in the ED Raise Compliance Issues
By Stephen A. Frew, JD, Vice President–Risk Consultant for Johnson Insurance Services, LLC.
Hospital emergency departments (EDs) interact with police on a daily basis with varying degrees of cooperation, but whether the cooperation is good or bad, many police interactions raise risks of violating federal EMTALA and other regulations. Where hospitals lack specific policies and training for police cases, innocent errors by hospital personnel can plunge the hospital into compliance actions or the front page of the local newspaper.
One source of many of the conflicts in the ED/police interactions is based on a mutual lack of understanding of the other agency's responsibilities. The hospital employees do not understand police department regulations, liability, or procedures, and the police lack an understanding of those of the hospital. Both sides are used to being in charge in their own sphere of operations, and both believe they have a priority for allocation of the resources to meet their needs and their time schedule. While both are correct in a sense, both also are capable of being wrong in specific instances.
In the scenarios below, common police/hospital interactions illustrate the potential issues that police involvement may pose for hospital regulatory compliance.
Medical Clearance. Police frequently bring individuals in custody to the ED for "medical clearance." These patients may vary from having no apparent reason for presentation to people with significant pre-existing conditions, obvious injuries, or even spurious claims of medical issues self-reported by the prisoner.
The patient is generally receptive to treatment, either because of the fear of the condition or to simply delay going to jail. The police, however, are generally less thrilled about the visit. To the officers, this is not a meaningful law enforcement role. They wish to be back on the street or to get off work on time, and delays in the hospital are frustrating. In most instances, the police have brought the patient in because the jail requires it for liability prevention.
From the hospital's perspective, patients without obvious injuries are not viewed as "real" patients. They tend to be viewed as needless intrusions on a busy hospital staff. As a result, the hospital staff may ignore or delay the patient as the lowest of triage categories. This reaction may put the hospital in violation of the Emergency Medical Treatment and Active Labor Act (EMTALA).
EMTALA regulations specifically indicate that all patients are to receive the same assessment and care as anyone else presenting for similar complaints. While the patient in this case is not making a request for care, the police are the ones making the request on behalf of the patient, and under EMTALA, proper triage and medical screening are required. Centers for Medicare and Medicaid Services (CMS) site review guidelines explicitly state that police "medical clearance" is a request for medical screening under EMTALA.
Delays or failure to follow hospital triage and EMTALA procedures will likely result in an EMTALA violation against the hospital. Law enforcement presentations must be triaged and prioritized in the same order as any other patient. While police do not automatically receive priority for their patients, they must not be arbitrarily given a low priority on paper or in the actions of the staff.
Insurance and Payment Issues. Many hospitals engage in a financial battle with police over how police presented patients and how their bills will be handled. These battles often result in EMTALA violations. It is not uncommon for hospitals to reject or turn away police-presented patients who are uninsured, whose insurance will not pre-authorize the visit, or where the police will not guarantee payment of the bill. Police often will release a patient at the ED for care to avoid the responsibility for the medical bill and then blatantly request notification when the patient is ready for release so they can re-arrest him.
While hospitals have a justifiable concern about such practices, conditioning care on terms of payment or method of payment is a blatant violation of EMTALA. The only option for the hospital is to provide EMTALA services and seek payment through negotiations or litigation.
In some cases, the law enforcement agency or the governmental unit may have contracts for medical care or hospitalization at other hospitals, but bring the patient to the nearest facility for patient safety or personal convenience. Many hospitals have declined care of a patient and discharged the patient or transferred the patient to the contracted hospital. This also violates EMTALA, where the original hospital has failed to provide medical screening, stabilizing care within its capability, and properly documented transfer.
This situation is further confounded when police officers refuse to allow hospitals to admit a patient to comply with EMTALA when they realize that the patient may be admitted to a non-contracted facility. In this and other circumstances where police want to remove a patient that the hospital believes needs care, hospital personnel should follow their standard refusal of care procedures to obtain a written refusal from the police and patient. If the patient wants care and the police refuse, the medical record should document the facts in detail. If police or patient refuse to sign, the efforts made to attempt to obtain signatures should be documented.
Psychiatric Patients. A significant portion of psychiatric presentations to the ED come in via the local police. In some states, the only effective method of obtaining involuntary psychiatric evaluation is through police agencies. Many hospitals, however, routinely refuse these police-presented patients, instructing the police to transport the patient elsewhere or discharging the patient.
In one such case, a patient was brought to a hospital that did not have a psychiatric department or staff. The hospital refused the patient and instructed the police to transport the patient to a hospital approximately one hour or more away. Shortly after departure, the patient became ill in the squad car and was returned to the hospital. The hospital again ordered the patient transported by police to the distant hospital. Upon arrival at the destination hospital, the patient was immediately transferred to a third hospital. The first hospital was cited for EMTALA violations for failure to evaluate, failure to provide stabilizing care, and for improper transfer by police vehicle.
EMTALA requires that psychiatric patients receive proper medical screening sufficient to rule out medical, toxic or traumatic conditions that may have caused, or be concealed by, the psychiatric symptoms. Where emergency medical conditions exist in addition to the psychiatric issues, the hospital must stabilize those within its capability before transferring to a higher level of medical or psychiatric care. Full EMTALA compliance is required, and that generally means that medical rather than police transport is indicated.
Sexual Assault Patients. Patients who come to the hospital alleging sexual assault are primarily considered medical patients, not forensic patients, for EMTALA compliance purposes. This means that unless the patient has refused medical care, a medical screening examination (MSE) must be conducted in a timely manner. If police become involved, they may seek to delay the exam until a sexual assault nurse examiner (SANE) or other forensic technicians are available. While forensics are important, they do not supercede EMTALA and the mandate for physician exam.
CMS guidelines clearly indicate that EMTALA standards apply in this circumstance, and at least one facility has been cited for violation for delay for SANE processing. While SANE participation in the medical screening with the designated physician may be acceptable, complete deferral or delay to accommodate a SANE process is not compliant. Where local laws might contradict EMTALA, the federal law contains a preemption provision that overrides state law. If a confrontation over procedure occurs in the ED, contact hospital legal counsel immediately.
Contrary to police assertions that sexual assault victims are generally seeking forensic assistance, patients state that they came to the ED for medical care. SANE legislation actually includes a number of elements to try to convince patients that they want to participate in the forensics portion. While this may represent good policy, it is secondary to the need for good medicine and EMTALA compliance.
Blood Alcohol and Drug Testing. As police crack down on drunk driving and drug abuse, an increasing number of police presentations are for drawing of blood alcohol samples or drug testing. Due to the lengthy process of an arrest for drunk driving or drug abuse, police typically want to get the blood samples as quickly as possible and without medical intervention that might allow blood levels to decline before the sample can be obtained. Medical intervention, however, might be required.
In light of the EMTALA definition that lumps alcohol or drug intoxication into a class of emergency medical conditions, considerable controversy flared for a number of years whether a blood alcohol presentation required a medical screening examination under EMTALA. Various officials in CMS were of the opinion that an MSE was required. Lawyers in the Office of Inspector General, however, disagreed. In the end, the lawyers officially won, but CMS made clear that the standard of the "prudent lay person" and "probing inquiry" apply.
The resulting standard is that MSE is not required UNLESS:
1. The patient asks for a medical examination or care;
2. A prudent lay observer would believe that medical assessment or care was indicated.
The "probing inquiry" approach basically is a "prudent triage nurse" expectation, which requires the nurse to ask enough reasonable questions to form a professional judgment on whether further evaluation is needed. While no specific list has been established and no form is technically required, a log entry and some sort of documentation seems necessary to be able to establish whether there was a probing inquiry. The sample form provided (see PDF) is an example of the type of questions and documentation that might be minimally necessary to prove compliance in the event of a CMS challenge or adverse outcome for the patient.
Mr. Frew has more than 30 years experience in health law, risk management, and compliance. His most recent book, EMTALA Field Guide, 2nd ed., was released in 2008. His Medlaw.com Web site includes one of the largest EMTALA resource areas online. He can be reached at [email protected].Hospital emergency departments (EDs) interact with police on a daily basis with varying degrees of cooperation, but whether the cooperation is good or bad, many police interactions raise risks of violating federal EMTALA and other regulations.
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