Potential Liability Exposure for EDs Regarding HHS Conscience Rule
ED providers and hospitals may face potential liability risks stemming from the “conscience rule” recently issued by the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights, says Rade Vukmir, MD, JD, FACEP, FACHE.1 The rule could trigger EMTALA violations if patients who require emergency medical attention are refused care, according to a joint position statement from the American College of Emergency Physicians and the Emergency Medicine Residents’ Association.2
“We are America’s safety net, we are always available, and, thankfully, we can provide care initially without worrying about insurance, ability to pay, or belief systems for that matter,” Vukmir says. For EPs, the intent always is to provide high-quality and uniform care to patients “without any uncertainty on their end or our end,” says Vukmir, president of Critical Care Medicine Associates, a medical risk management consulting firm. Vukmir is also clinical professor of emergency medicine at Temple University and Drexel University. Under EMTALA, EDs are obligated to provide stabilizing treatment for emergency medical conditions, regardless of the ability to pay, and transfer the patient if another level of care is required. If the HHS rule causes a provider to refuse to provide such care to a patient, this is, of course, a potential EMTALA violation. However, the rule should not change anything in terms of the care provided in EDs.
“We expect our providers to provide standardized care for all of the conditions we encounter,” Vukmir says. “This codification of previous laws is not going to change that.”
The HHS rule protects providers who cite religious or moral objections to providing certain services. “But it really could be on both sides. It also provides a pathway for patients, as well as healthcare providers, to raise concerns,” Vukmir offers.
A patient or family might decide to call a lawyer if they perceive, rightly or not, that the care they received in the ED was substandard due to a provider’s invoking the HHS rule. This kind of scenario could occur if a sexual assault victim asks for emergency contraception when presenting to an ED at a faith-based institution. “Most institutions have procedures and protocols in place to provide all necessary federally mandated patient care,” Vukmir notes.
However, if an ED provider objects to the provision of emergency contraception, Vukmir says, it is important for that provider to inform the hospital system or ED group in advance so that an alternative plan can be made. “We don’t want to react to this issue necessarily when it occurs,” he says. “Proactive protocols in place before the event are typically the best approach.”
Education of ED providers is important to avoid misunderstandings that can end up in court. “We need to tell people what this new statute is and, as importantly, what it isn’t. It’s not meant to be a carte blanche for the provider to ‘do what you want,’” Vukmir says. It is important that ED providers understand the HHS rule is “not an option to proselytize. It’s not our place to try to convince patients of our moral rightness, or vice versa,” Vukmir notes.
When it comes to a patient or family calling a malpractice attorney, perception can be just as important as reality. If someone perceives a provider is judging him or her, says Vukmir, “they may feel all their care is tainted. People might worry that this is a license for providers to somehow restrict their care.”
Plaintiff attorneys might allege that a patient received lower-quality care in an ED because he or she was uninsured. It is possible that plaintiff attorneys may claim similarly the patient received substandard care due to a provider’s belief systems and invocation of the conscience rule.
“We don’t want any patient to perceive that because of their set of circumstances that are in conflict with a provider’s beliefs, the provider now has free rein to do what they want,” says Vukmir, emphasizing that all ED patients have “a long-standing, codified right to receive a uniform standard of care no matter the circumstances. The HHS rule doesn’t change that in the least.”
- American College of Emergency Physicians. Emergency Physicians: HHS Conscience Rule Puts Patient Safety At Risk, May 3, 2019. Available at: http://bit.ly/31dpXky. Accessed June 6, 2019.
- U.S. Department of Health & Human Services, Office for Civil Rights. 84 FR 23170. Issued May 21, 2019. Available at: http://bit.ly/2WKgnpW. Accessed June 6, 2019.
The rule should not change anything in terms of the care provided in EDs.
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