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Beware of EMTALA, warns legal expert
Hospitals and EDs that institute policies similar to the recent approach instituted at the University of Chicago Medical Center would do well to consider that they may be in violation of the Emergency Medical Treatment and Labor Act (EMTALA), warns Michael Frank, MD, JD, FACEP, FCLM, general counsel and director of risk management for Emergency Medicine Physicians (EMP) Management Group in Canton, OH.
"You can form a system that will result in ED patients going elsewhere, once it has been determined they do not have an emergency medical condition that will comply with EMTALA, but it's very difficult to do that — and very hazardous — because the standard that is used will be retroactively applied," he says.
EMTALA requires an "appropriate" medical screening exam (MSE), he says. "But the term 'appropriate' has never been defined by CMS [the Centers for Medicare & Medicaid Services] or any other group, so this is a wide-open invitation for CMS to determine, after the fact, that the diverted patient did have an emergency condition," Frank says. "They could also determine that the screening was not appropriate."
Frank says his understanding is that the facility was doing appropriate triage, but not necessarily an assessment. "I don't think they were only using physicians," he notes. "Under CMS guidelines, the hospital must use 'the full spectrum of its capabilities' in performing a medical screening exam." So, Frank explains, "If you have doctors in the ED, which is part of the 'full spectrum,' it becomes problematic to say you have done an appropriate MSE when it is done with nurses and paramedics and you don't use doctors."
The bottom line is that while such policies can follow the letter of the law, they still are risky, he says. "There's no way to be sure you will not run afoul of EMTALA with such a policy," Frank warns. "All it will take is one complaint, and EMTALA is complaint-driven."