Question: Is it true that we can violate EMTALA by not encouraging a patient to stay for treatment when he wants to leave? We’ve been told, for instance, that if a patient asks about financial liability for treatment, we must actively encourage the patient to stay until he can be examined rather than just stating the facts about payment.
Answer: You’re right that you can violate EMTALA this way, says Susan Lapenta, JD, a partner with Horty Springer, a law firm in Pittsburgh that specializes in health care issues.
This facet of EMTALA is particularly confusing to health care providers, who often are surprised to learn that they violated the law when they merely answered a patient’s question honestly and politely, she says.
To fulfill the intent of EMTALA — ensuring that people who need urgent care are not turned away from hospital EDs — the government expects providers to go beyond simply answering a question about possible financial liability. ED staff should actively encourage people to stay for treatment even if they are concerned about the ability to pay, Lapenta says.
"It’s not enough to answer a question about payment factually and accurately," she says. "The government is looking for the hospital to reassure patients, to say Don’t worry about payment. We’ll take care of you.’"
The concern is that if you simply provide the facts about payment, a patient will leave the ED because of payment concerns when he or she actually had a medical condition that needed to be treated, Lapenta says. "The government considers [it] your responsibility to prevent" this from happening, she adds.
The issue can trip up ED staff because they often think of EMTALA violations as overt acts in which the staff purposefully turned the patient away. That is a dangerous misconception, Lapenta warns.
ED staff might not understand this point, she says. "I suspect they know in a general sense that they’re not supposed to talk about payment, but I’m not sure they fully understand that the government expects them to actively encourage people to stay for treatment," Lapenta says. "It confuses people when they know they meant no harm and didn’t initiate the conversation about payment to try to scare people off."
The government has spelled out what it expects of ED staff in this situation, and the bar is set pretty high. In an advisory bulletin issued in 1999, the Health Care Financing Administration — now the Centers for Medicare & Medicaid Services (CMS) — explained exactly what the ED staff should do in response to a question about financial liability. (Financial inquiries are addressed in item 4 in the bulletin.)
In a nutshell, the government expects your ED staff to gently reassure people that they will be treated as needed without regard to payment, going to great lengths if necessary to avoid answering the question directly.
If the patient is insistent and keeps pushing for a straight answer, the government does allow the ED to respond, but only after a verbal tango in which all attempts to elude the answer are exhausted. The staff member has to work through a series of steps choreographed to reassure the patient and deflect payment inquiries. No matter how reasonable and serious the question sounds at first, you can’t just blurt out the facts and let it go at that.
The Bush administration is sending signals that it is more flexible in investigating such slip-ups, she says, whereas the previous administration took more of a hard-line approach.
Of course, an EMTALA investigation is bad news even if you prevail in the end. Thus, Lapenta advises taking the necessary steps to educate your ED staff, especially those involved with patient triage and intake, about this particular risk with EMTALA. Some hospitals script out what employees can say, which she says can be a good idea.
Lapenta suggests a script that goes something like this in response to the first question, with parts repeated as necessary if the patient persists in asking: "You need to be taken care of first. That’s our first concern. We can talk about money and what you might have to pay for later, after we make sure that you’re safe. We have to do this screening examination first to make sure that you’re OK, and then we can talk about payment later. We’ll answer all your questions about that soon, but we really need to concentrate right now on making sure you’re OK," she adds.
Educating your staff is a key concern with EMTALA because, if a complaint arises, investigators will take a hard look at whether a patient was illegally diverted intentionally or because your staff weren’t adequately trained in EMTALA compliance. Either of those conclusions is much worse than your staff simply making a mistake with one patient.
"The government is usually more concerned with whether your staff are trained properly than whether they slipped up this one time," she says.
For more information, contact:
• Susan Lapenta, JD, Horty Springer, 4614 Fifth Ave., Pittsburgh, PA 15213. Telephone: (800) 245-1205. E-mail: Slapenta@hortyspringer.com.
To see the entire EMTALA advisory bulletin, go to www.hortyspringer.com/content/EMTALA_SAB_Nov10_1999.htm. Financial inquiries are addressed in item 4.