Do blood alcohol tests fall under EMTALA regs?

It’s not exactly clear, expert says

Confusion still exists over the question of whether police blood alcohol tests trigger a medical screening exam (MSE) under the Emergency Medical Treatment and Labor Act (EMTALA), according to Stephen A. Frew, JD, a web site publisher and a longtime specialist in EMTALA compliance.

The answer is unclear because the Health Care Financing Administration (HCFA), now known as the Centers for Medicare & Medicaid Services (CMS), apparently has mixed feelings on the subject, says Frew, who also is risk management consultant for Physicians Insurance Co. of Wisconsin in Madison.

"HCFA originally said, No, this is not a request for medical evaluation or services. It is purely forensic testing,’" he explains. "Then several years ago, the EMTALA desk person at HCFA sent out an e-mail saying, Yes, an MSE is required.’"

On that basis, Frew adds, several offices wrote letters or made announcements that blood alcohol levels required MSE. Shortly thereafter, he continues, the EMTALA desk person issued another e-mail that essentially said, "Never mind," because the Office of General Counsel had issued an opinion that blood alcohol tests do not require MSE.

Some providers still are relying on the old letters to support the position that MSEs are required, Frew says, not knowing about the later reversal. But he points out that the matter still is not resolved.

Frew says he recently contacted a CMS office and confirmed that MSEs are not officially required. But he was told, he adds, there is concern that patients presenting for blood alcohol tests may have injuries due to accidents or medical conditions that give the appearance of intoxication.

"This office strongly urged that extensive questioning of the officers and patient should be pursued to assure that there is no medical issue," he says. "They also question whether an intoxicated person can make an informed refusal of care."

Details, details, details

Given that his experience has shown that CMS "concerns" often translate into citations, Frew adds, he gives this advice:

"We know that with scheduled procedures, there must be logging, but no MSE is required unless the patient gives the slightest hint [he or she] wants to be examined," he continues, or says or does something that suggests the need for an examination.

"Taking the two together, it would seem that CMS will look closely at what the hospital knew, especially if there is a subsequent adverse outcome or complaint, and likely will find a reason to cite [the provider] for not doing an MSE," Frew says. "The answer appears to be to get details of the situation from the police, from nursing observation, and from patient interview to support the decision that there was no apparent reason to give an MSE."

To do that correctly, he suggests, a special form is required. He has designed one that may be accessed — along with other forms that can be used in fulfilling EMTALA requirements — at his web site, www.medlaw.com.