EMTALA: It’s here, it’s new, and it’s still prompting questions for risk managers

ASHRM hot topic is on the minds of many

One of the hottest sessions at the recent meeting of the American Society for Healthcare Risk Management (ASHRM) in Nashville, TN, addressed the recently issued final rule for the Emergency Medical Treatment and Labor Act (EMTALA). Questions came fast and furious from the standing room-only crowd, showing that risk managers still have plenty of questions about what the law means and how it will apply to their unique situations.

The final rule, which was to clarify all the questions surrounding EMTALA, didn’t cover all the bases, according to Daniel J. Sullivan, MD, JD, FACEP, president of the Sullivan Group, a consulting company in Oak Brook, IL, that specializes in EMTALA interpretation. He told ASHRM attendees that the Centers for Medicare & Medicaid Services (CMS) promised to make EMTALA easy to understand, but "in the end, when they were faced with some difficult questions, they mostly copped out."

That failure left risk managers wondering how to apply the law in specific situations, he says. Some trepidation is warranted, he says, and advises risk managers not to let their guard down regarding this law. In fact, Sullivan says, you may need to step up your EMTALA education program.

"You need to educate your on-call physicians regarding EMTALA," he urges. "They haven’t been educated much before, and they don’t understand why they can’t make the transfer decision. If they think the final word is theirs when they’re called at 1 a.m., you can get into a lot of trouble."

Can violate EMTALA if physician won’t come

Some hospitals have begun including a mandatory one-hour EMTALA education session as part of the re-credentialing system for physicians, Sullivan notes. Such education efforts are important because the on-call physician can be a weak link in your EMTALA plan, he adds. Even if everyone in your emergency department (ED) or obstetrics unit responds properly, the EMTALA violation can occur if the on-call physician refuses to come in and see the patient when necessary, Sullivan says.

Physicians who refuse to come in may force you to transfer a patient to another hospital for care, yet the hospital has little power to force that physician to get out of bed, Sullivan notes. You may hold the physician responsible after the fact, he says, but by then you may have transferred a patient who could have been treated at your facility. That often will constitute an EMTALA violation, he says.

However, it is sometimes acceptable to transfer a patient who could be treated if the physician on call came to the hospital, Sullivan says. The determining factor is why the physician recommended a transfer instead of coming to the hospital. "It’s 3 a.m., and I don’t want to deal with it" is never a good reason, but EMTALA is not violated if the physician advises that the patient would receive better care at another facility.

Reason for transfer is paramount

For instance, consider a patient who arrives at an ED not equipped to handle trauma. The initial presentation suggests minor injuries from a motorcycle accident but then tests reveal free air from a ruptured intestine, elevating the case to trauma. When the surgeon on call is queried about the case, he or she refuses to come in and says the patient should be transferred to the nearest trauma center. Is that an EMTALA violation?

Not necessarily, Sullivan says. Sure, the surgeon probably is capable of addressing the known problem — the ruptured intestine — but there also is reason to think the patient could need other services such as a urologic surgeon and a generally higher level of surgical care. If the hospital’s policy is to transfer all such trauma cases because you never know what else they will need, EMTALA does not prevent the transfer, Sullivan says.

"It depends on why the patient is being transferred. If you’re doing it because the patient will receive better care, that’s acceptable," he says. "Now if Hospital B refuses to accept the patient because they think Hospital A’s on-call physician should have come in, then Hospital B is violating EMTALA because they have special abilities and must accept those transfers."

Transfers vs. transports

Sullivan also points out that EMTALA makes an important distinction between transfers and transports. The former involves moving a patient from one health care provider to another. It requires a good reason and paperwork. The latter is considered merely a practical consideration, like moving a patient from one department to another.

What many risk managers don’t know, he says, is that multiple facilities under one Medicare provider number can transport a patient from one facility to another without EMTALA transfer paperwork.

"It’s not an EMTALA transfer because CMS sees them all as different facilities on one campus, even if they’re all over town," Sullivan says. "This means that if a visitor collapses in your pediatric emergency department, you can transport that patient to your regular ED miles away instead of having to treat him where you only have pediatric equipment. You’re still expected to provided all the necessary first aid, of course, but it’s not an EMTALA transfer."

Most urgent care centers covered

Hospitals and health systems also may need to provide more EMTALA education to urgent care centers, Sullivan says. There was some debate initially as to whether the final EMTALA rule covered urgent care centers, but he says the answer now is a definite yes for most urgent care centers. The final rule establishes three criteria that can be used to define a "dedicated emergency department," a term that makes a facility subject to EMTALA:

1. It is licensed by the state as an emergency room or ED.

2. The facility is held out to the public as providing care for emergency medical conditions without requiring an appointment.

3. During its previous calendar year, it has provided at least one-third of all its outpatient visits for the treatment of emergency medical conditions on an urgent basis.

That third criterion means that nearly all urgent care facilities are included, Sullivan says. "They don’t know this. You need to go tell them," he says. "They are not tuned in like emergency facilities are, but they carry the same risks. They must coordinate their EMTALA plans with the main campus."

(Editor’s note: Watch for more coverage of the ASHRM meeting in upcoming issues of HRM.)