Does statute require MSE for scheduled tests in ED?

Treat patient appropriately, expert says

[Editor’s note: This column runs occasionally in Hospital Access Management and addresses questions regarding the Emergency Medical Treatment and Labor Act (EMTALA).]

Question: Some of our physicians insist on sending their patients to our ED for injections to treat ongoing medical conditions. One patient was scheduled for magnetic resonance imaging (MRI), but due to back pain, he was unable to lie still for the test. The physician ordered a narcotic injection to be given to assist the patient in getting through the test. Even though the MRI was scheduled and the injection order was included with the MRI order, we in the ED refused to administer the medication without a medical screening examination (MSE). The physician was irate, and the patient left unhappy. Did we do the right thing?

Answer: "Generally speaking, an irate physician and unhappy, untreated patient should be confirmation enough that you did not do the right thing," according to Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care for the department of emergency medicine at Carolinas Medical Center in Charlotte, NC.

The when-in-doubt rule to follow is to treat the patient appropriately medically, rather than be overly preoccupied with legal consequences, he says.

"Recognize too, that EMTALA is a complaint-driven process," says Bitterman. "CMS [Centers for Medicare & Medicaid Services] does not conduct EMTALA investigations unless someone complains about the care provided."

The above patient presented to the hospital to obtain an MRI, not to seek an MSE from the ED for a potential emergency medical condition, he notes. "Do you do an MSE on every patient administered barium in the radiology suite, to every patient given an insulin tolerance test, or to every patient given adenosine for a cardiac stress test in the cardiology noninvasive lab?"

In each of these instances, that patient’s physician has ordered a study done at the hospital to be done with a medication injection, exactly the same as an MRI with narcotic or benzodiazepine to be done in radiology, Bitterman says.

The common denominator is that the patient is not asking for an MSE from the ED, he says. "This is the reason why EMTALA should not apply to these situations."

Before EMTALA applies to a patient encounter, the law requires two triggering elements to be present, Bitterman explains. First, the patient must come to the ED, and second, the patient or someone on the patient’s behalf actually must request examination or treatment for a medical condition.

"Interestingly, if CMS was consistent in its interpretation of the law, it would require everyone presenting to the hospital for any examination or treatment of any medical condition to be provided a medical screening exam," he adds.

CMS officials contend that anywhere on hospital property constitutes "coming to the ED," Bitterman says. According to the regulations, every patient who presents to the lab for a routine blood draw has "come to the ED."

The statute requires an MSE for everyone requesting "examination or treatment of a medical condition," he explains, noting that the language does not say "for examination or treatment of an emergency medical condition." Therefore, by the letter of the law, every patient at the hospital for a routine blood draw should be given an MSE, Bitterman says.

"Ludicrous, but that’s what the statute would require if CMS’ interpretation of the comes to the ED’ language was enforced," he says. "What CMS really means, and properly seeks to achieve, is that patients truly seeking emergency care are not denied such care by virtue of what department of the hospital they enter."

Therefore, the rule to follow is that patients outside of the ED, if seeking emergency care, are deemed to have come to the ED and requested an MSE, he says.

CMS tries to mitigate its inconsistency by stating that patients presenting to the "ED," which is defined as "anywhere on hospital property," for scheduled care do not trigger EMTALA’s medical screening requirement, he says. "The language of the statute does not in any way differentiate scheduled care from unscheduled care — it’s simply a ruse to get around an overly expansive definition of comes to the ED.’"

Bitterman recommends using an intake form that simply asks, "Why are you here?" to document the patient’s intentions and the fact that the patient is expressly not requesting an MSE to determine if an emergency medical condition exists.

"Without such a request, EMTALA plainly does not apply, and then the doctors, nurses, and the patients can determine the parameters of proper medical care, not the government," he says.

In the above case, Bitterman notes, it’s clear the patient isn’t seeking emergency care, and EMTALA should not apply.

The easiest way to circumvent this problem is to avoid administering the medications in the ED, and instead allow nurses to administer the medications in radiology, he says. "The less patients look like ED patients, the less likely CMS will deem them to be ED patients, and thus trigger unnecessary, unwanted, and unwarranted expensive medical screening’ examinations."