ED nurses are responsible for 20% of EMTALA violations: Don’t be next

Nurses may be blamed for half of all EMTALA violations, rightfully or not

  • Since a patient’s insurance won’t cover the ED visit because it’s out of network, you say, "We can see you, but you’ll get a bill. If you go to the ED down the street, your insurance will cover you."
  • After you realize that an emotionally disturbed teenager will need care elsewhere, you suggest that he go directly to the other hospital to avoid an ED charge from your facility.
  • Due to lengthy wait times, you recommend that parents take their child to a nearby children’s ED.

All of the above "helpful" comments made by ED nurses resulted in actual citations for violations of the Emergency Medical Treatment and Labor Act (EMTALA). If you violate EMTALA, you face fines of up to $50,000 per violation and possible termination of your hospital’s Medicare provider agreement.

Although nurses can’t be held individually liable under EMTALA, they can still be held liable under their state’s Nurse Practice Act and be named in medical malpractice lawsuits, says Shelley Cohen, RN, CEN, an educator for Health Resources Unlimited, a Hohenwald, TN-based consulting company specializing in ED triage and health care leadership.

ED nurses often wrongly assume that an EMTALA violation won’t occur in their ED, says Cohen. "Nurses often think, We will never get a violation,’" she says. "Believe it — start reviewing actual cases." (To access actual cases, see resource below.)

ED nurses often blamed

About half of existing EMTALA violations contain citations for which the ED nurse may be blamed, since the violations were not clearly due to errors by physicians or other hospital staff, warns Stephen A. Frew, JD, vice president and risk consultant with Johnson Insurance Services, a Madison, WI-based company specializing in risk management for health care professionals.

"Often, however, violations such as improper completion of transfer documentation are labeled as a nursing error within the facility, but in reality should be charged to the physician," he adds.

EMTALA places full responsibility for the accuracy and completeness of the transfer documentation on the transferring physician, not the ED nurse, but many facilities delegate much or all of the transfer documentation responsibility to the nurse, says Frew.

"That is extremely hazardous, unless the transferring physician assumes the responsibility to review the documentation rather than merely signing a form placed in front of him or her," he says.

Frew estimates that 20% of EMTALA violations are caused by a mistake involving nursing personnel. "A clear majority of those involve documentation issues," he says.

Inspectors from the Baltimore-based Centers for Medicare & Medicaid will expect strict compliance with policies and procedures and probably will view any deviation from written standards as an EMTALA violation, says Frew. "When nurses fail to follow written procedures for triage classification, fail to document vital signs, or refuse to see patients because they are frequent fliers,’ violations occur that are issues of nursing competence," he adds.

Documentation is critical

To avoid EMTALA violations, you must take the following steps:

  • Don’t leave gaps in your documentation.

The most common EMTALA mistake made by ED nurses is failing to sufficiently document the care that actually was provided, to prove to the inspector that it was done and done correctly, says Frew. "Gaps in documentation, failure to time entries, and poor legibility account for more violations than poor patient care decisions by nurses," he says.

Always include the following items in your documentation for transferred patients, advises Frew:

— An explanation of the benefit of transfer must state exactly what service or care will be received at the destination hospital that is not available at your facility.

— The statement of risk should contain at least one handwritten medical risk, using the worst-case scenario, other than accidents en route. "At the very least, increased pain is always a bona fide risk," notes Frew. "Anything that is not listed is a risk to the sending facility if it occurs or could have occurred but didn’t."

— Forms must be signed by the appropriate individuals.

— A list of all records sent to the receiving facility must be included.

— You must document a complete set of vital signs before the patient leaves the facility.

When ED patients at Bangor-based Eastern Maine Medical Center are transferred to nursing homes, acute care, or to an ophthalmologist for follow-up care, staff often get confused about whether transfer documentation is required, says Karen Clements, RN, BSN, department head nurse for the ED. "We have a saying, When in doubt, fill them out,’" she says.

Education and immediate feedback are the most effective ways to nip problems in the bud, says Clements. "I review documentation for most patient transfers," she says. "If there are any issues, I follow up with the sending nurse for on-the-spot teaching."

  • Don’t violate EMTALA when giving patients advice about their care.

Many violations are caused by ED nurses doing something they believe is helping the patient, such as advising the patient to go to an urgent care clinic for a minor problem to avoid a long wait, says Frew. "Simply put, if helping’ the patient results in the patient not being seen and provided a medical screening exam at your facility, it is likely to be a violation of EMTALA," he says.

For example, ED nurses have advised parents to take their child to a nearby children’s facility, says Frew. "ED nurses have told parents, Sorry, but kids have to go to the ED next door.’ When they leave, a violation has occurred," says Frew. "These instances have occurred with children with fever, fractures, burns, and just about anything else."

In other cases, an ED nurse realizes that the patient will need care elsewhere and suggests that they go directly to the other hospital to avoid an ED charge at the first hospital. "When that patient leaves without an MSE, it is a violation," says Frew.

At St. Vincent Hospital’s ED in Green Bay, WI, this scenario comes into play whenever ED patients ask for a pregnancy test at triage. "The free clinic sent us a note asking that patients be sent directly to them for free pregnancy testing," says Paula Hafeman, RN, MSN, director of the emergency center. "Nurses know that the clinic does testing for no charge, but they cannot refer the patient to the clinic unless a medical screening exam is done to determine if an emergent medical condition is present."

After the MSE is done, patients are given the information and make their own decision about where to get the pregnancy test, says Hafeman.

  • Never refuse patients care.

Surprisingly, EMTALA violations still occur as a result of nurses actually turning patients away from the ED, says Frew. The bottom line is that once the patient or ambulance has crossed onto hospital property, anything that results in the patient leaving the premises may result in an EMTALA citation if the proper screening and transfer requirements have not been met, he emphasizes.

"Nurses turning away ambulances that present because the hospital is on diversion, or the ambulance had been told not to come to the facility, or the ambulance arrived at the wrong hospital by error, is a more frequently cited situation than one would anticipate, given the fact that EMTALA is almost 18 years old," he says.

Sources/Resources

For more information on EMTALA violations involving emergency nurses, contact:

  • Karen Clements, RN, BSN, MSB, Department Head Nurse, Emergency Department, Eastern Maine Medical Center, 489 State St., Bangor, ME 04401. Telephone: (207) 973-8010. Fax: (207) 973-7985. E-mail: kfclements@emh.org.
  • Shelley Cohen, RN, CEN, Health Resources Unlimited, 522 Seiber Ridge Road, Hohenwald, TN 38462. Telephone: (888) 654-3363 or (931) 722-7206. Fax: (931) 722-7495. E-mail: educate@hru.net. Web: www.hru.net.
  • Stephen A. Frew, JD, Vice President-Risk Consultant, Johnson Insurance Services, 525 Junction Road, Suite 2000, Madison, WI 53717. Telephone: (608) 245-6560. Fax: (608) 245-6585. E-mail: sfrew@johnsonins.com.
  • Paula Hafeman, RN, MSN, Director, Cancer and Emergency Center, St. Vincent Hospital, 835 S. Van Buren St., Green Bay, WI 54307-3508. Telephone: (920) 433-8428. E-mail: phafeman@stvgb.org.

The EMTALA Online Health Law Resource Center (www.medlaw.com) offers several free EMTALA resources, including case law examples based on actual violations. Click on "Court Cases."

The Sullivan Group’s web site (www.thesullivangroup.com) lists several recent EMTALA cases with commentary. Click on "EMTALA." Under "EMTALA Case Reporter," click on "Enter Here" and "Enter Reporter."